Upper Tribunal (Immigration and asylum chamber), 2020-10-28, JR/06053/2019
| Jurisdiction | UK Non-devolved |
| Date | 28 October 2020 |
| Published date | 06 November 2020 |
| Hearing Date | 01 October 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | JR/06053/2019 |
JR/6053/2019 (V)
J R/6053/2019 (V)
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review
Decision Notice
The Queen on the application of SASSAN HESSAMIAZAR
Applicants
v
Secretary of State for the Home Department
Respondent
Before Upper Tribunal Judge Canavan
Application for judicial review: substantive decision
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This application considers the requirements for Indefinite Leave to Remain as a Tier 2 (General) Migrant. In particular, the calculation of the "continuous period of five years lawfully in the UK" and the extent of "allowable absences" during the qualifying period.
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The applicant seeks to challenge the respondent's Administrative Review decision dated 09 September 2019 and by implication the underlying decision dated 05 August 2019 to refuse Indefinite Leave to Remain (ILR) on grounds of five years continuous lawful residence in the UK as a Tier 2 (General) Migrant.
Background
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The applicant entered the UK in 2010 as a Tier 4 (General) Student Migrant. He was granted further leave to remain as a Tier 1 (Post Study Work) Migrant until 03 March 2014. The applicant applied for leave to remain as a Tier 2 (General) Migrant on 03 March 2014 to work as a project manager for a newly registered UK company called Mayfair Industry Ltd. In a letter from Mayfair Industry to the Companies Registration Officer dated 15 October 2013 the Director of the company stated that he intended to appoint the applicant as the authorised manager of a branch in Erbil, Iraq. He would deal with all the company administration in that office. On 16 April 2014 the applicant was granted leave to remain as a Tier 2 (General) Migrant valid until 11 April 2017.
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The applicant made an in-time application for further leave to remain on the same basis. A letter from the applicant's employer to the respondent dated 21 March 2017 explained that the applicant was essential to the survival of the company. The focus of the company's work was in Erbil. The applicant's employer went on to explain his role.
"The main aim of the company in the first initial months of establishment has been to register an office in Erbil, Kurdistan Regional Government of Iraq, and start to get projects over there. To do so, the company employed Sassan Hessamiazar, for all right reasons, which the last 3 years proved to be truly the case. He was granted Tier 2 visa, which we would like to request to be extended.
He is a first person of contact who represents interest of my company outside of the UK and manages projects in Erbil/Iraq. My decision on choosing this field of work and the region to work, of Erbil/Iraq, is based on his vast knowledge and experience in construction particularly in oil/gas field to manage projects. He not only knows the technical part of the work and knows relevant experts and companies to contact, but have the knowledge of the region, such as language and culture. So, without him I will not be able to run the business ...
At the beginning I thought that I would dispatch him to Erbil/Iraq for the first few months in order to set up the office and register it over there. After a few months, having him over there, while he was doing and improving the company in every aspect beyond our expectations, however unforeseen conditions and unstable environment did unfold many challenges. The situation required him to stay there for longer than initially planned. I did not have anyone else in his capacity in both professional ability and personal strength and trustworthiness which I could trust to hand over the office and projects to."
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The applicant's employer went on to explain some of the difficulties that led to the need for his continued presence in the Erbil office beyond the period initially anticipated. His employer concluded by saying that because of those problems the company still needed the applicant to be present in the Erbil office until they got to a point where they could establish a trusted team there. The applicant would then be based mainly in London and would only have to travel to Erbil when needed.
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The applicant's employment contract dated 01 April 2016 stated that he would work at the London and Erbil office, but that his presence in the Erbil office "would be predominant until that office is fully settled and a local office manager" was appointed. The respondent was satisfied that the applicant met the requirements for further leave to remain as a Tier 2 (General) Migrant. Further leave was granted until 16 April 2019.
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On 19 March 2019 the applicant applied for ILR as a Tier 2 (General) Migrant. A letter from his employer dated 12 March 2019 was in similar terms to the previous letter. It explained the essential role that the applicant played in the operations in Erbil. Now that the company was well established it was planning more ambitious projects "connecting the UK's businesses and investments to the ones in Erbil/Iraq." The letter went on to say:
"The core reason for employment of Sassan Hessamiazar was the need for him to represent the company in Erbil and carry out all duties regarding projects over there, very heavy full-on responsibility which required his presence over there undoubtedly. Now that we have established ourselves over there and overcome many obstacles and hard works, thanks to him and his skills and experience, he is needed more than ever; therefore we are looking forward to continue with his employment for years to come, for much bigger projects, more involving UK's businesses and investments in Erbil/Iraq. These new plans would require him to be more present in London and to travel more frequently between London office and Erbil/Iraq office.
…
Sassan Hessamiazar has not only contributed to the success [and] achievements of the company, but has been the core reasons for that; and he will remain so, as we wish to continue his employment, for him to carry on his great work."
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The written representations made by the applicant's legal representatives accepted that he "exceeded the allowed amount of days outside of the UK" in the relevant five year period, but asserted that the Home Office policy stated that absences that were for a reason consistent with the original purpose of entry to the UK were "allowable absences". The letter went on:
"Your records will show that our client was offered an employment as a Project Manager with Mayfair Industry Ltd to help to establish a subsidiary office in Erbil, Iraq and to carry out the construction projects there. Mayfair Industry Ltd obtained their sponsorship status to employ Mr Hessamiazar for that specific role. The company secured an extension of their sponsorship status and our client was granted further leave to remain as a Tier 2 Migrant to continue his duties as a Project Manager. As a first person of contact in Erbil, our client has represented the best interests of his employer there. As a result of his vast experience and high education (it should be noted that our client completed his Master Degree course in Management in the UK) he greatly contributed to the growth and expansion of Mayfair Industry Ltd. It is therefore evident that our client absences are directly linked to his permitted employment and therefore are allowed as confirmed in the guidance above. Our client was granted his Tier 2 Migrant status on the basis that he will mainly work outside of the UK as it was evident from the beginning that the constructions projects would take place in Erbil, Iraq."
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The respondent refused the application in a decision dated 05 August 2019. She was not satisfied that the applicant met the requirements of paragraph 245HF(b) and paragraph 245AAA of the immigration rules for five years continuous lawful residence in the UK as a Tier 2 (General) Migrant. The application indicated that the applicant was absent from the UK for 327 days in the first qualifying year, 366 days in the second (presumably including a leap year), 344 days in the third, 356 days in the fourth and 192 days in the fifth qualifying year. The respondent concluded that the applicant remained outside the UK for more than 180 days during each consecutive 12 month period. The applicant failed to show that the absences were for a sufficiently compelling or compassionate reason to justify exercising discretion.
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The applicant applied for Administrative Review of the decision. The grounds for Administrative Review pointed out that the applicant was granted leave to remain as a Tier 2 (General) Migrant to work as a project manager for Mayfair Industry Ltd largely based in Erbil, Iraq. The evidence produced with the applications for leave to remain made this clear. The grounds referred to the respondent's guidance "Indefinite Leave to Remain; calculating continuous period in UK" (06 July 2018), which stated under the heading "Allowable Absences" that "Absences for a reason consistent with the original purpose of entry to the UK" were permitted in relation to applications made under the Tier 2 (General) scheme. The respondent was wrong to apply the test of whether there were sufficiently compelling or compassionate reasons to exercise discretion instead of considering whether the time spent outside the UK was an allowable absence.
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The Administrative Review decision is dated 09 September 2019. The respondent found that the...
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