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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> MW (Paragraph 276, long residence, 'lawful residence') Pakistan [2007] UKAIT 00008 (05 January 2007) URL: https://www.bailii.org/uk/cases/UKIAT/2007/00008.html Cite as: [2007] UKAIT 00008, [2007] UKAIT 8 |
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MW (Paragraph 276 –long residence - 'lawful residence') Pakistan [2007] UKAIT 00008
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 21 December 2006
Date Determination notified: 05 January 2007
Before
Senior Immigration Judge Gleeson
Between
MW | APPELLANT |
and | |
Secretary of State for the Home Department | RESPONDENT |
DETERMINATION AND REASONS
Paragraph 276B defines 'lawful residence' for the purpose of paragraph 276B (a). Where, as here, an appellant has entered the United Kingdom unlawfully, and has never had any leave to enter or remain since that entry, he cannot be regarded as accruing 'lawful residence' whilst an application for leave to remain is pending.
"25. Accordingly, as far as the scope of reconsideration is concerned, the Tribunal is entitled to approach it, and to give directions accordingly, on the basis that the reconsideration will first determine whether or not there are any identifiable errors of law and will then consider the effect of any such error or errors on the original decision. That assessment should prima facie take place on the basis of the findings of fact and the conclusions of the original Tribunal, save and in so far as they have been infected by the identified error or errors of law. If they have not been infected by any error or errors of law, the Tribunal should only re-visit them if there is new evidence or material which should be received in the interest of justice and which could affect those findings and conclusions or if there are other exceptional circumstances which justify reopening them…
30. Whatever decision the Tribunal makes as to the procedure to be followed on reconsideration, the parties will have had their opportunity to make submissions. It seems to me, however, that the practice direction quite rightly starts from the assumption that the reconsideration should be dealt with at one hearing unless good reason is shown to the contrary. …If a party has not filed a rule 32 (2) notice, the Tribunal is entitled to assume that there is no further evidence or material it wishes to put before the Tribunal for the purposes of the reconsideration. And if he has not filed a reply, the Tribunal is entitled to assume that the party other than the one on whose application the reconsideration was ordered does not wish to rely on any arguments or material other than those upon which the original decision was based."
"276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:
(i)(a) he has had at least 10 years continuous lawful residence in the United Kingdom; …and
(ii) having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his:
(a) age; and
(b) strength of connections in the United Kingdom; and
(c) personal history, including character, conduct, associations and employment record; and
(d) domestic circumstances; and
(e) previous criminal record and the nature of any offence of which the person has been convicted; and
(f) compassionate circumstances; and
(g) any representations received on the person's behalf."
"24. (v) Where the applicant has no potential rights under specifically immigration law, and therefore has to rely on his rights under article 8(1), delay in dealing with a previous claim for asylum will be a relevant factor under article 8(2), but it must have very substantial effects if it is to influence the outcome [Strbac at §25]."
"276A. For the purposes of paragraphs 276B to 276E:
… (b) "Lawful residence" means residence which is continuous residence pursuant to:
(i) Existing leave to enter or remain; or
(ii) Temporary admission within section 11 of the 1971 Act where leave to enter or remain is subsequently granted; or
(iii) An exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain."
DECISION
The original Tribunal made a material error of law.
The following decision is accordingly substituted:
1. The appeal under the Immigration Rules is dismissed, and
2. The appeal is dismissed on human rights grounds.
Signed Dated: 24 January 2007
Senior Immigration Judge Gleeson