Upper Tribunal (Immigration and asylum chamber), 2021-06-03, [2021] UKUT 146 (IAC) (R (on the application of Waseem & Others) v Secretary of State for the Home Department (Long residence policy – interpretation))

CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgeTHE HON. MR JUSTICE LANE, PRESIDENT, UPPER TRIBUNAL JUDGE KEITH
StatusReported
Appeal Number[2021] UKUT 146 (IAC)
Date03 June 2021
Hearing Date30 March 2021
Published date17 June 2021
Subject MatterLong residence policy – interpretation



IN THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)


R (on the application of Waseem & Others) v Secretary of State for the Home Department (long residence policy – interpretation) [2021] UKUT 0146 (IAC)


Field House,

Breams Buildings

London, EC4A 1WR

and via Skype for Business


3rd June 2021

Before:


THE HON. MR JUSTICE LANE, PRESIDENT

UPPER TRIBUNAL JUDGE KEITH


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Between:


THE QUEEN

on the application of


(1) ANSAR WASEEM

(2) GAYANI ARACHCHIGE (AND ONE OTHER)

Applicants

- and -


SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

- - - - - - - - - - - - - - - - - - - -


Mr Z Jafferji and Mr A Rehman, instructed by Lawise Solicitors,

for the first applicant

Ms S Naik QC and Ms Ella Gunn, instructed by Jein Solicitors,

for the second applicant


Mr R Harland (instructed by the Government Legal Department) for the respondent


Hearing dates: 12th February and 30th March 2021


- - - - - - - - - - - - - - - - - - - -

J U D G M E N T

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The various versions of the Secretary of State’s long residence policy from 2000 to 2017, as properly interpreted, are consistent with the distinction between ‘open-ended’ and ‘book-ended’ overstayers, as described in paragraph [9] of the Court of Appeal’s decision of Hoque & Ors v SSHD [2020] EWCA Civ 1357; [2021] Imm AR 188. This interpretation is consistent with a rationality review and is capable of resulting in a ‘fair balance’ between competing interests.


A. Introduction

  1. We conducted the hearings from open court at Field House, while the parties’ representatives attended via Skype for Business. The Skype link was also open to members of the public to access. We monitored the quality of the communications between the parties and us and we were satisfied overall that the parties were able to participate effectively in the hearing.

  2. The applicants’ applications raised common issues relating to the respondent’s application of her long residence policy; her exercise of discretion for those applying for indefinite leave to remain, where they do not meet the long residence requirements of the Immigration Rules; the issue of proportionality, in the context of article 8 of the European Convention on Human Rights (‘ECHR’); and the respondent’s consideration of the applicants’ further submissions as fresh claims, for the purposes of paragraph 353 of the Immigration Rules.

  3. As a consequence of the respondent’s refusal to treat the applicants’ further submissions as fresh claims, no statutory right of appeal arose and the challenges to the respondent’s decisions came before us as applications for judicial review. At the core of the respondent’s decisions was the common circumstance that the applicants were all ‘open-ended’ overstayers, as described by the Court of Appeal in the case of Hoque & Ors v SSHD [2020] EWCA Civ 1357; [2021] Imm AR 188 (see [9]).

  4. The applicants accept that their ILR applications fell for refusal under the Immigration Rules, as now understood as a result of Hoque, but they contend that the respondent impermissibly failed to apply her own, wider policy in relation to long residence, which would otherwise result in them being granted some form of leave and so becoming ‘book-ended’ overstayers; failed to consider her residual discretion; and failed adequately to carry out a proportionality assessment for article 8 ECHR purposes. All parties accepted that it was for this Tribunal to determine the meaning of the respondent’s long residence policy.

  5. A synopsis of each of the applicants’ circumstances is set out below.

B. The applicants

JR/3246/2019

  1. AW is a citizen of Pakistan born on 5th May 1979. He arrived in the UK lawfully with permission to enter as a student on 19th April 2009, with leave to remain until 30th July 2012. Prior to expiry of that leave, he made an in-time application on 27th January 2012 for leave to remain as a tier 1 post-study migrant and was granted further leave on 10th May 2012 until 12th May 2014. On that date, he submitted a further in-time application, for further leave to remain as a tier 1 entrepreneur and his leave was granted until 24th June 2017. That was the last date on which he had leave, other than as extended by section 3C of the Immigration Act 1971 (which broadly speaking extends the leave last granted until a decision is taken on the appeal for further leave; or until any appeal rights have been exhausted).

  2. On 22nd June 2017, AW applied for ILR on the basis of long residence, (10 years’ continuous lawful residence), despite having been in the UK for a little over eight years only. The respondent refused this application on 25th November 2017 and AW appealed that decision to the First-tier Tribunal. AW did not attend that First-tier Tribunal hearing and the First-tier Tribunal dismissed AW’s appeal on 30th August 2018. AW sought permission to appeal to this Tribunal. Permission was refused by the First-tier Tribunal on 2nd November 2018 and by this Tribunal on 31st January 2019, when his appeal rights were exhausted.

  3. On 4th February 2019 (so within 14 days of his appeal rights being exhausted, on which AW places significance), AW applied again for ILR on the basis of long residence. The crux of AW’s case is that he says that by 21st March 2019, taking into account the ability to apply 28 days before a required residence period is met, he had lived in the UK for ten years, and the respondent only reached her decision after that date on 20th April 2019. The respondent characterises 10 years’ residence in the UK as a “place marker”, without legal significance, as AW had been an overstayer, without any existing leave, since 31st January 2019, and so a longer period of residence would be required for some form of leave based on long residence, namely 20 years.

  4. The respondent refused to treat AW’s application as a fresh claim in the decision dated 20th April 2019. Following pre-action correspondence, AW applied for judicial review on 14th June 2019.

JR/1043/2019

  1. GA, the lead applicant in the second application, was born on 17th December 1974. Her husband, UM, who is dependent on her application, was born on 17th March 1964. Both are Sri Lankan nationals and entered the UK lawfully, pursuant to GA’s student visa, on 20th September 2003. They obtained extensions of leave to remain and GA then applied on 29th October 2007 for a further extension, to undertake a PhD. That application was refused. GA appealed against that refusal to the Asylum and Immigration Tribunal. The AIT dismissed her appeal on 12th February 2008 and GA’s appeal rights were exhausted on 6th March 2008. GA and UM remained in the UK as overstayers. UM then left on 20th April 2008 and GA left on 28th April 2008. GA then applied for a further student visa on 29th May 2008, which was granted and valid from 3rd July 2008.

  2. GA re-entered the UK on 6th July 2008 and UM re-entered on 10th August 2008. They have remained in the UK ever since. GA then extended her leave to remain as a student, which expired on 30th October 2015, and that was the last time on which GA had leave to remain, other than by reason of section 3C. Two days before the expiry of her last period of leave, on 28th October 2015, she made an-in time application for ILR based on 10 years’ continuous lawful residence, referring to her residence from 20th September 2003 until 21st September 2013.

  3. The respondent refused GA’s application on 7th March 2016. GA then appealed that decision and her appeal was dismissed by the First-tier Tribunal on 5th April 2017. She sought permission to appeal that decision. The First-tier Tribunal refused permission on 3rd January 2018 and the Upper Tribunal refused permission on 9th May 2018, when GA’s appeal rights were exhausted.

  4. Within 14 days of the exhaustion of their appeal rights (on which, like AW, GA places importance), on 17th May 2018, GA and UM applied for further leave to remain based on their rights to respect for their private life, by reference to article 8. Before their applications were decided, they varied their applications, seeking ILR based on 10 years’ continuous lawful residence, since GA’s re-entry to the UK on 3rd July 2008. The respondent also regarded this purported anniversary as being without legal significance, as GA’s and UM’s leave had ended on 9th May 2018, even when extended by section 3C. The respondent refused to treat the applications as fresh claims, in decisions of 13th December 2018 and 18th January 2019.

C. Procedural history, grounds and defence

  1. Following pre-action correspondence, GA and UM applied for judicial review on 22nd February 2019. Permission was refused by Upper Tribunal Judge Kebede on the papers in a decision of 20th May 2019. AW applied for judicial review on 14th June 2019 and permission in respect of his application was refused on the papers by Upper Tribunal Judge Pickup on 18th July 2019.

  2. Following further case management directions, which are not recited here, at an oral permission hearing on 12th March 2020, Upper Tribunal Judges Allen and Finch granted permission on the following grounds:

1. Permission is granted...

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