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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> SA (long residence concession) Bangladesh [2009] UKAIT 00051 (26 November 2009) URL: https://www.bailii.org/uk/cases/UKIAT/2009/00051.html Cite as: [2009] UKAIT 00051, [2009] UKAIT 51 |
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SA (long residence concession) Bangladesh [2009] UKAIT 00051
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 12 February 2009
Date Determination notified: 26 November 2009
Before
Senior Immigration Judge Storey
Senior Immigration Judge Grubb
Between
SA | APPELLANT |
and | |
Secretary of State for the Home Department | RESPONDENT |
For the Appellant: Mr M S Alam, Legal Representative from Capital Solicitors
For the Respondent: Miss T Karunatilake, Home Office Presenting Officer
DETERMINATION AND REASONS
1. Where a more timely decision could have been made in respect of a person who had already accrued the relevant period of residence during the time when the (previous) long residence concession was still in force, i.e. up to 1 March 2006, that concession is a relevant factor in an Article 8 claim (see FH (Bangladesh) [2009] EWCA Civ 385). But in deciding whether the decision was in accordance with the law, that concession cannot assist someone who only applied (and was only in a position to apply) for long residence after its withdrawal: see LL(China
) [2009] EWCA Civ 617.
2. The recent revision in Home Office policy, as set out in the April 2009 IDIs dealing with long residence, means that there is, once again, a situation in which immigration rules dealing with long residence co-exist with a policy concession (set out in these IDIs) that in at least one respect is more generous. But in deciding whether the decision is "in accordance with the law", the revived policy will not assist those in respect of whom a decision was made before it came (back) into existence: see AG and Others (Policies; executive discretions; Tribunal's powers) Kosovo [2007] UKAIT 00082.
Our Decision
"Long residence in the United Kingdom
276A. For the purposes of paragraphs 276B to 276E:
a) 'continuous residence' means residence in the United Kingdom for an unbroken period, and for these purposes a period shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time, provided that the applicant in question has existing limited leave to enter or remain upon their departure and return, but shall be considered to have been broken if the applicant:
(i) has been removed under Schedule 2 of the 1971 Act, section 10 of the 1999 Act, has been deported or has left the United Kingdom having been refused leave to enter or remain here; or
(ii) has left the United Kingdom and, on doing so, evidenced a clear intention not to return; or
(iii) left the United Kingdom in circumstances in which he could have had no reasonable expectation at the time of leaving that he would lawfully be able to return; or
(iv) has been convicted of an offence and was sentenced to a period of imprisonment or was directed to be detained in an institution other than a prison (including, in particular, a hospital or an institution for young offenders), provided that the sentence in question was not a suspended sentence; or
(v) has spent a total of more than 18 months absent from the United Kingdom during the period in question.
(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.
…
"Requirements for indefinite leave to remain on the ground of long residence in the United Kingdom
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;
or
(b) he has had at least 14 years continuous residence in the United Kingdom, excluding any period spent in the United Kingdom following service of notice of liability to removal or notice of a decision to remove by way of directions under paragraphs 8 to 10A, or 12 to 14, of Schedule 2 to the Immigration Act 1971 or section 10 of the Immigration and Asylum Act 1999 Act, or of a notice of intention to deport him from 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; and
(iii) the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application."
The issue of whether there was a break in continuity of lawful residence
Pre-existing Home Office Policy
"Lawful residence
Where a person has completed ten years continuous lawful residence he should normally be granted indefinite leave to remain without enquiry.
When considering whether a person has remained in the United Kingdom lawfully for ten years, the following breaches of conditions made for the purpose of this concession should be considered as lawful:
- A short delay in submitting an application provided the application is subsequently granted."
Legitimate expectation
"19. I regard all these arguments as entirely misconceived. The appellant made no application under the 1987 policy or the 2000 concession. Had she done so it would no doubt have been considered appropriately but, for reasons given by the AIT, would have been extremely unlikely to succeed. When she applied for indefinite leave to remain the new Rules were in force and had been for over four years. They cannot be regarded as analogous to retrospective legislation since they did not undermine the established rights of any affected person. An immigrant might or might not have applied under the earlier policies. If he or she did not there would have been no basis for his or her getting the benefit of them by a later application made at a time when the new Rules were in force. The earlier policies might have had the character of retrospective legislation or something like it if they purported to remove the basis established by earlier provisions on which an immigrant was actually enjoying a lawful residence in this country, but that they did not do. The fact that the new Rules altered the regime on which persons already here might stay is legally inoffensive, so long at least as such a person had placed no reliance on any of the earlier provisions.
20. In the appellant's case she applied for indefinite leave, as I have said, on 10 August 1997, within the currency of her student leave. That current leave was then extended, by force of statutory provisions which I need not describe, while her fresh application was outstanding and until any appeal process was exhausted. Because of the protracted nature of the appeal proceedings, she has remained here pursuant and only pursuant to her student leave as extended by statute. Her only claim to remain, since she has no further student leave, will have to be under paragraph 276A-D of the Rules which have had effect, as I have said, since 1 April 2003. On the facts she has no case under those Rules. Any appeal to earlier policies is wholly artificial and in reality the truth is that this lady cannot show continuous residence under any of the successive regimes to which we have been referred."
Post-decision policy
"2.3.3 Breaks in lawful residence and the use of discretion
If an applicant has a single short gap in lawful residence through making one single previous application out of time by a few days (not usually more than 10 calendar days out of time) caseworkers should use discretion granting ILR, so long as the application meets all the other requirements.
It would not usually be appropriate to exercise discretion when an applicant has more than one gap in their lawful residence due to submitting more than one of their previous applications out of time, as they would not have shown the necessary commitment to ensuring they have maintained lawful leave throughout their time in the UK.
It may be appropriate to use your judgement in cases where an applicant has submitted a single application more than 10 days out of time if there are extenuating reasons for this (e.g. postal strike, hospitalisation, administrative err or on our part etc). This must be discussed with a Senior Caseworker.
…"
"An appeal on the ground that the decision "is otherwise not in accordance with the law" in a case of this type is an attack on the decision making process and so cannot succeed except by showing that there was a fault in that process. Despite s.85(4), therefore, insofar as the appeal was based on the policy, it needed to be directed to the circumstances as they were at the date of the decision, because the complaint is that the Secretary of State ought at that date to have applied the policy as it was on that date. The fact that since the date of the decision the child's age, and the time she spend in the United Kingdom, have both increased, is not a matter "relevant to the substance of the decision" in the context of an attack on the decision-making process, and is not a matter on which any evidence could add to the position as it is accepted to have been at the date of the decision. "
"Although the assessment of proportionality under Article 8 may and often will raise issues similar to those to be considered when ascertaining whether the Secretary of State properly applied any relevant policy, it is important to keep the issues separate, because they are not the same. Human rights are to be considered at the date of the hearing; but the argument that the decision is "otherwise not in accordance with the law", being an argument about the decision-making process, looks back at the time when the decisions was taken, and to the responsibility of the person taking it then. Between the date of the decision and the date of the hearing the facts may have changed, and the policy may have changed. The human rights argument has to be made and assessed on the basis of today's facts; and issues of proportionality have to be determined on the basis of the application of today's policy to today's facts; but it is unlikely that the decision can be attacked on process grounds except by reference to yesterday's policy as applied to yesterday's facts (indeed possibly only by reference to yesterday's appreciation of the facts).
"It is in that context that a judicial decision-maker has to take into account any applicable policy, because if the policy itself "tells in favour of the person concerned being allowed to stay in this country" it is a factor that has to be incorporated into an assessment of the argument going to the importance of immigration control. The decision maker is not said at paragraph [79] to be concerned with exercising any discretion under the policy. Rather, the task is to ascertain whether the terms of the policy tell generally in favour of non-removal, because that finding, if made, has an impact on the proportionality of the particular proposed removal".
The Immigration Judge materially erred in law.
The decision we substitute for his is to dismiss the appellant's appeal. The decision appealed against was in accordance with the law.
Signed
Senior Immigration Judge Storey