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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> HS (Long Residence, effect of IDI September 2004) Pakistan [2005] UKAIT 00169 (01 December 2005) URL: https://www.bailii.org/uk/cases/UKIAT/2005/00169.html Cite as: [2005] UKAIT 169, [2005] UKAIT 00169, [2005] UKIAT 00169 |
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HS (Long Residence – effect of IDI September 2004) Pakistan
[2005] UKAIT 00169
Date of hearing: 25 October 2005
Date Determination notified: 01 December 2005
HS |
APPELLANT |
and |
|
Secretary of State for the Home Department | RESPONDENT |
The provisions of IDI September 2004 do not set out a published policy providing a concession in the application of the provisions of paragraph 276B(i)(b) of HC395 when assessing a claim based on long residence. In the absence of a specific transitional or other saving provision, an application is assessed under the rules as at the date of decision not the date of application.
Background
The Hearing before the Immigration Judge
The Application for Review
1. Whether the Judge erred in concluding that the appellant's application for leave to remain should have been determined under the terms of the respondent's long residence concession in force at the date of the application rather than under the terms of paragraph 276B of HC 395 as amended in force at the date of decision.
2. Whether he erred by concluding that the respondent's discretion should have been exercised differently and
3. Whether he erred in concluding that the respondent's decision was not in accordance with the law.
The Submissions
Consideration of the Issues
(i) Which rules apply to the decision made on 20 June 2005
"These rules come into effect on 1 October 1994 and will apply to all decisions taken on or after that date save that any application made before 1 October 1994 for entry clearance, leave to enter or remain or variation of leave to enter or remain other than an application for leave by a person seeking asylum shall be decided under the provisions of HC 251, as amended, as if these rules had not been made."
This rule illustrates that the general principle is subject to any transitional provisions to the contrary. The rule provides that non-asylum claims made prior to 1 October 1994 would be decided in accordance with HC 251. The rules have been subsequently amended on a number of occasions but there has been no provision to which our attention has been drawn for transitional provisions in relation to these amendments. The rules relating to long residence were introduced by HC 538 to take effect on 1 April 2003 but it does not contain any transitional provisions. In the course of submissions we referred the parties to McDonald's Immigration Law and Practice 6th Edition at paragraph 1.50 which reads as follows:
"Where changes are made to the Immigration Rules, it is sometimes difficult to establish whether the old or new rules apply. The transitional provisions in the current rules, HC 395, provide that applications extant prior to their coming into force will be decided under the previous rules. We suggest that the same logic should apply with regard to the amendments, so that applications made before the amendments take effect should be dealt with under the unamended rules. Any other rule penalises the applicant for Home Office delays. New editions of the rules often contain transitional provisions which may give rise to problems of interpretation."
Whether or not the same logic should apply to subsequent amendments, in our judgement in the absence of specific transitional provisions, the general principle set out in Rule 4 must apply and the decision must be made in accordance with the rules as at the date of decision.
(ii) Have the rules been modified by the IDI of September 2004
"Where a person has been served with a notice of intention to deport account should be taken of the decision in the case of Ofori. This judgment held that the Secretary of State was entitled to conclude that the extra period of residence gained by the appellant while pursuing his appeal should not count to wards the 14 years continuous residence of any legality required under the LRC. However, each case should be considered on its merits and the length and quality of the overall period of residence should still be taken into account, together with all other relevant factors, and balanced against the need to maintain an effective control."
(iii) Legitimate Expectation
"Although there is no 14 year rule as such, because any concession based on length of residence is outside the Immigration Rules… once a person has been here continuously for 14 years or more, they would normally be granted indefinite leave to remain regardless of the fact that some or all of their residence was unlawful, provided that there were no other strong countervailing factors such as extant criminal record or deliberate, positive blatant attempts to evade or circumvent Immigration Control. Each case… is considered on its merits."
(iv) Summary
Article 8
Decision
H J E Latter
Senior Immigration Judge