TT (Long residence – “continuous residence” – interpretation) British Overseas
Citizen [2008] UKAIT 00038
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
Heard at Field House
On 8 February 2008
Before
SENIOR IMMIGRATION JUDGE ALLEN
SENIOR IMMIGRATION JUDGE SOUTHERN
Between
TT
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant:
For the Respondent:
Mr M S Gill QC, instructed by Harvey Son & Filby, Solicitors
Mr N Smart, Home Office Presenting Officer
For the purpose of paragraphs 276A – 276D of HC 395, a period of continuous residence,
as defined in paragraph 276A(a), is not broken in circumstances where a person with
leave to remain in the United Kingdom obtains further leave from an Entry Clearance
Officer while temporarily outside the United Kingdom prior to the expiry of the leave to
remain. The IDI Chapter 18 on Long Residence at paragraph 2.1.3 neither binds the
Tribunal nor states the position correctly.
© CROWN COPYRIGHT 2008
DETERMINATION AND REASONS
1.
The appellant is a British national (Overseas) citizen. She appealed to an
Immigration Judge against the Secretary of State’s decision of 17 October 2007 to
refuse to vary leave to remain in the United Kingdom. The appellant had applied for
indefinite leave to remain on the grounds of long residence in the United Kingdom.
2.
The Immigration Judge set out the appellant’s immigration history. She was born on
5 August 1984. She came to the United Kingdom for the purpose of her education
on 10 January 1997 with leave to enter until 30 June 1997. Thereafter she has
continued her studies in the United Kingdom with periods of return at various times to
Hong Kong over the ensuing ten years.
3.
The essential issue in this case concerns what was said by the Secretary of State
regarding breaks in the continuity of residence. Essentially, on both of these
occasions, respectively in 2003 and 2006, the appellant left the United Kingdom with
leave to remain, which leave expired whilst she was out of the country, and she
obtained leave to enter from the Entry Clearance Officer in Hong Kong prior to
returning to the United Kingdom. There is no question, therefore, of her having ever
entered the United Kingdom without leave. On behalf of the Secretary of State it was
argued that because she had not returned on those two occasions with the same
leave which she had when she left the United Kingdom, there was a break in
continuity and therefore she could not satisfy the requirements of the ten year rule.
4.
The Immigration Judge gave consideration to this argument at paragraphs 22 – 25 of
his determination. He concluded, firstly as a consequence of his interpretation of the
wording of the relevant sub-paragraph of paragraph 276A of HC 395, which is set out
below, and also as a consequence of what was said at paragraph 2.1.3 of the
Immigration and Nationality Directorate’s Instruction Chapter 18 of Long Residence
dated 4 May 2007, that the decision was in accordance with the law and the
Immigration Rules and there had been the two breaks in continuity as contended for
by the Secretary of State. He also gave consideration to an Article 8 claim and
concluded that Article 8 was not engaged, setting out his reasoning at paragraph 26
of the determination.
5.
The appellant sought reconsideration, arguing that on a proper interpretation of
paragraph 276A of HC 395 there had been no break in continuity. The interpretation
placed on the Rule by the Immigration Judge was, it was argued, not in accordance
with the actual wording of the Rule which was said to be specific and exhaustive, and
also, leave to remain was said to lapse only if a person left the United Kingdom in
circumstances specified in the statute and it would be inimical to the statutory
intention to imply other circumstances where leave to remain would lapse.
Reconsideration was ordered by a Senior Immigration Judge on the basis of the
matters set out in the grounds.
6.
The hearing before us took place on 8 February 2008. Mr M S Gill QC, instructed by
Harvey Son & Filby, Solicitors, appeared on behalf of the appellant. Mr N Smart
appeared on behalf of the Secretary of State.
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7.
Mr Gill provided us with a supplementary note to the grounds for reconsideration, and
also a copy of the decision of the House of Lords in Ghaidan v Godin-Mendoza(FC)
[2004] UKHL 30.
8.
Mr Gill relied upon and developed the points made in the grounds and in his
supplementary note. He argued that all was needed was for a person in the
appellant’s position to have leave at the point of departure and leave at the point of
return, and that they did not have to have the same leave continuing to cover both
periods. He referred to paragraph 2 of his note as to the relevant interpretative
principles. The Immigration Rules were not akin to a statute and it was appropriate
for there to be a purposive interpretation. With regard to the submissions that were
likely to be made by Mr Smart concerning the decision of the Court of Appeal in
Ishtiaq v Secretary of State for the Home Department [2007] EWCA Civ 386, Mr
Gill relied on paragraph 31 in that judgment concerning the proper purposive
approach. An interpretation consistent with human rights principles was required, as
had been said by the House of Lords in Ghaidan at paragraphs 31 and 32. This was
so much more the case with regard to rules of practice such as those involved in this
case.
9.
Mr Gill argued that it was not a matter of finding the Rules to be ultra vires. It was a
question of assessing the proper purpose of the Rule. The old concession reflected
the purpose. It was clear from the decision of the Tribunal in OS [2006] UKAIT
00031 that the concession continued side-by-side with the Rule, but the concession
was removed after the decision in OS. The language of the Rule was not
unambiguous. Paragraph 276A had to be read as a whole. There was no
requirement in the Rule that a person had to have the same leave before and after
the period when they left the United Kingdom. There was not even an ambiguity
therefore within the Rule.
10. In the alternative, it might be argued that the Tribunal had the jurisdiction to find the
Rule ultra vires. That would need more detailed submissions and it was understood
that a case was shortly to be heard by the Tribunal exploring this issue.
11. Otherwise there was a question of Article 8. The appellant had clearly developed a
private life in the time she had been in the United Kingdom, and the Immigration
Judge’s assessment of this at paragraph 26 of the determination was flawed since
although what was said there was true, it did not address the issue of interference
with the particular private life of the appellant.
12. In his submissions, Mr Smart argued that if the Tribunal disagreed with the
Immigration Judge, this would amount to a finding that the Rule was ultra vires. He
argued that there was in fact no material error of law in the determination. The
Immigration Judge was clearly entitled to attach weight to the use of the word “and”
in paragraph 276A(a). He referred to the sixth edition of Macdonald’s Immigration
Law and Practice at page 37 to page 38, where it was said, quoting from Pearson v
Immigration Appeal Tribunal [1978] IAR 212, that although the Immigration Rules
were not delegated legislation or Rules of Law, they were Rules of Practice laid down
for the guidance of those entrusted with the administration of the Immigration Act
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1971, and had the force of law for those hearing immigration appeals. In Ishtiaq was
set out the legal basis for the Rules and the IDIs also and how they were to be
treated. He relied on paragraph 58 in Ishtiaq where it was expressly said that the
AIT had no power to declare paragraph 289A(iv), the provision under consideration in
that case, to be ultra vires. Mr Smart accepted that this was an issue being debated
at the moment, but contended that this authority was of weight on the point. He
argued that there was no ambiguity in the Rule and therefore he had, in effect,
already dealt with the issues of the proper interpretative approach and the human
rights approach. Although the IDIs did not have the force of law, they provided
guidance for case workers and for the Tribunal.
13. As regards Article 8, Mr Smart accepted the private life element but argued that there
was no error in the Immigration Judge’s assessment at paragraph 26 of the
determination. There was also a question of whether if the appeal was allowed
under Article 8 what relief would be provided. A person would normally get a three
year period of discretionary leave, but in this case the application had been for
indefinite leave to remain. In any event there was no material error of law in the
determination.
14. By way of reply, Mr Gill said, with reference to the quotation from Macdonald, that it
was not disputed that the Immigration Rules could be treated as a source of law, but
that did not take the issue any further. The Rules were not delegated legislation or
rules of law of a normal sort. He disagreed with Mr Smart’s argument that if the
Tribunal differed from the Immigration Judge that would have the effect of declaring
the Rule to be ultra vires. It was a matter of interpretation only. The IDIs were no
more than the Secretary of State’s view and were of even less weight than the Rules.
Often they had not been put in place at the time when the Rule was placed before
Parliament under the negative resolution procedure. This particular IDI was only
introduced after OS was promulgated and it would be necessary rather to look at the
old long residence concession as being the equivalent of the IDI at the time. As
regards Article 8, there would be no reason why the Tribunal could not give a
direction under Section 87 of the 2002 Act for indefinite leave to remain to be
granted. The Tribunal was in as good a position as the Immigration Judge to decide
the Article 8 issue.
15. We reserved our determination.
16. This appeal raises a question of interpretation of paragraph 276A of HC 395, and it is
therefore convenient if we set out the entirety of that provision before going on to
consider the proper meaning of the Rule.
“276A.
For the purposes of paragraphs 276B to 276D:
(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
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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)
(b)
has spent a total of more than 18 months absent from the
United Kingdom during the period in question.
"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.”
17. We have not found it necessary to set out the chronology of the appellant’s
immigration history in this case, since the issue before us resolves itself into the
relatively narrow point that we have identified above, namely whether a proper
interpretation of paragraph 276A(a) the term “existing limited leave to enter or remain
upon their departure and return” encompasses the situation of the appellant in this
case of having twice left the country with leave to remain, which leave expired while
she was out of the country, but who prior to the expiry of that leave obtained leave to
enter from an Entry Clearance Officer and returned on the basis of that leave; or
whether it is limited, as the Secretary of State contends, to the situation of a person
who both leaves and returns on the basis of the same leave, in other words leaves
the United Kingdom during the course of a period of leave to remain and returns to
the United Kingdom before that leave has expired.
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18. The Immigration Judge founded his decision in favour of the Secretary of State on
two bases. The first of these was his reading of the part of paragraph 276A(a) that
we have quoted above. He said, at paragraph 22 of the determination, that it seemed
to him to be clear from the conjunctive “and” that the proviso required the same leave
to exist at both the point of departure and the point of return.
19. He then went on to quote, as we have seen, from the IDI which at 2.1.3 “Time Spent
Out of the UK”, says,
“continuity shall not be considered to have been broken where an applicant is
absent from the United Kingdom for a period of six months or less at any one
time, provided that the applicant has existing limited leave to enter or remain
upon his departure and return. To benefit from this, an applicant must have
current leave covering the whole of the period spent out of the country and will
have been readmitted, on return from his absence, to continue that period of
existing leave.”
20. The question then before us is whether the Immigration Judge was right to place that
interpretation on paragraph 276A(a). Before addressing that point, it is convenient if
we deal with a couple of other matters first. The first of these is the question of
whether if we disagree with the Immigration Judge we would be in effect declaring the
Rule to be ultra vires. We agree with Mr Gill that it is essentially a matter of
interpretation rather than a declaration of ultra vires. We do not therefore need to
address the question of whether or not we have jurisdiction to declare an Immigration
Rule ultra vires.
21. In Ishtiaq the Court of Appeal at paragraph 3 referred to the nature of IDIs. They
were said to contain guidance to case workers as to how they should apply the
Immigration Rules when they make decisions in individual cases (see also NA (Iraq)
[2007] EWCA Civ 759 at paragraphs 25 and 26). IDIs are not, as Mr Gill pointed out,
placed before Parliament at any stage, and they represent in our view no more than
an internal guidance for Home Office officials. They can in no sense be said to bind
the Tribunal and any decision as to the correctness or otherwise of the guidance
contained in an IDI or in IDIs by the Tribunal does not in any sense raise questions of
jurisdiction. Clearly IDIs will have been drafted as a consequence of a careful
consideration of an Immigration Rule or Rules and the circumstances in which it or
they should be applied and though they are, as we say, not binding on the Tribunal,
nevertheless they deserve careful consideration.
22. It is relevant in considering this matter to bear in mind the points made in Mr Gill’s
supplementary note. Although he is clearly right to make the point that the
Immigration Rules are not to be treated as statute they are more than simply Rules of
Guidance to Immigration Officers. As the quotation from Pearson makes clear, they
have the force of law for those hearing immigration appeals. Nevertheless, we agree
with Mr Gill that the Rules are to be interpreted purposively in a rational and logical
manner, and also consistently with human rights legislation. But, in particular we
consider the Rules have to be construed in accordance with their natural meaning.
Paragraph 276A(a) is clear that a period of continuous residence shall not be
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considered to have been broken when an applicant is absent from the United
Kingdom for six months or less at one time, with the proviso that we have referred to
above. The sub-paragraph then goes on to define, as we have seen, five
circumstances in which continuity will be considered to have been broken. It is
common ground that none of those factors applies in this case. It is relevant also to
note the contrast at paragraph 276B between the requirements for indefinite leave to
remain on the grounds of long residence in the case of a person who has had at least
ten years lawful residence in the United Kingdom and a person who has had at least
fourteen years continuous residence, excluding any period spent in the United
Kingdom following the service of notice of liability to removal or notice of a decision to
remove by way of directions or a notice of intention to deport from the United
Kingdom. Various factors are set out to be taken into account with regard to the
fourteen year period requiring regard to be had to the public interest in concluding
that there are no reasons why it would be undesirable for the person to be given
indefinite leave to remain on the ground of long residence. Those factors do not
apply to the person coming under 276B(i)(a) who has had at least ten years
continuous lawful residence in the United Kingdom.
23. The principle, as it seems to us, under paragraph 276A, is that, subject to stated
exceptions, a person who has had at least ten years continuous lawful residence in
the United Kingdom is entitled to indefinite leave to remain. Such indeed is what is
spelt out at paragraph 276B. But it seems to us to be inconsistent with the purpose
of the provision to write into it, as it were, a further requirement that a person who is
absent for a period of six months or less at any one time both left and returned with
the same leave. If it had been thought to be sufficiently important to make that a
requirement of the Rule, then we can see no reason why it would not have been
drafted in those terms. There is no suggestion that the appellant has behaved
unlawfully in this case at any stage. She has, on both occasions which are in issue
before us, obtained further leave before the previous leave expired. The only
difference is that she happened to be out of the country at the time when she
renewed that leave rather than being within the country. We do not take the same
view as the Immigration Judge about the use of the words “and”. We do not see it as
requiring the same leave to exist at the point of departure and the point of return that
the Immigration Judge considered that it required. It is at least as consistent with the
interpretation we put on it, and we consider that our interpretation is more consistent
with the purpose and spirit of this particular Rule.
24. Nor do we consider that we should come to any different view on the basis of the IDI.
We have indicated above the nature of IDIs and their purpose and their status. We
are not bound by the IDI, and there is no indication as to why it was thought that that
was the proper interpretation to place on paragraph 276A, in the absence of any
wording to support that interpretation.
25. Accordingly we conclude that the Immigration Judge erred in his interpretation of
paragraph 276A in this case. It is not necessary formally for us to go on and consider
the situation under Article 8, but on the basis of our interpretation it can hardly be said
that if the decision of the Secretary of State is not in accordance with the Immigration
Rules, it is nevertheless in accordance with Article 8. We therefore conclude that the
appellant has made out her claim under both paragraph 276A and under Article 8,
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and therefore for the decision of the Immigration Judge dismissing the appeal on both
grounds is substituted a decision allowing the appeal on both grounds.
Signed
Date
Senior Immigration Judge Allen
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