England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM: ASYLUM AND IMMIGRATION TRIBUNAL
IMMIGRATION JUDGE BLAIR-GOULD
IA/09588/2006

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/02/2008

Lord Justice Hooper:

1. This appeal concerns paragraph 276B of the Immigration Rules. By virtue of that paragraph a person who has had 14 years continuous residence in the UK excluding any period following service of a notice of liability to removal or of a decision to remove or of intention to deport may make an application for indefinite leave to remain on the ground of long residence, albeit that part or all of the 14 year residence was unlawful. He may (see paragraph 276C) be granted indefinite leave to remain if the Secretary of State is satisfied that each of the requirements of paragraph 276B is met but must be refused indefinite leave to remain if the Secretary of State is not so satisfied (paragraph 276D). Those requirements are:

(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; ...

2. Prior to this insertion of these paragraphs into the Rules there was a policy the application of which tended to favour the grant of indefinite leave to remain for those with 14 years continuous albeit unlawful residence. The policy stated:

When considering an application, where a person has 10 years or more continuous lawful residence, or 14 years continuous residence of any legality, indefinite leave to remain should normally be granted in the absence of any strong countervailing factors, such as:

an extant criminal record, apart from minor non-custodial offences; or

deliberate and blatant attempts to evade or circumvent the control, for example by using forged documents, absconding, contracting a marriage of convenience etc.

Criminal offences which are spent under the Rehabilitation of Offenders Act and behaviour which happened 5 years or more ago should not normally be sufficient to outweigh positive ties with the United Kingdom. Where the continuous residence is in excess of 14 years unless the countervailing factors are exceptionally serious indefinite leave should normally be granted.

Indefinite leave should normally be granted to a person who has completed a continuous period of residence of 14 years or more, regardless of its legality. Leave should only be refused if there are serious countervailing factors.

Where a person has completed between 10 and 14 years continuous residence, but where it is not all lawful the quality and length of the residence should be the guiding factors. The length of the period of continuous residence and the proportion of it which is lawful and the strength of the ties to the United Kingdom (particularly family ties) should all be taken into account. The factors in each case must be considered on the individual merits. (Underlining added)

3. Mr Cox for the appellant accepted during the course of argument that the policy was of little help in interpreting the paragraph. He was right to do so. I would go further (subject to what I say in paragraph 32 below) and hold that it is of no help. See OS (10 years' lawful residence) Hong Kong [2006] UKAIT 31 and MO (Long residence rule-public interest proviso) Ghana [2007] UKAIT 14.
4. The appellant arrived in the United Kingdom as a visitor on 20 September 1991 and was granted leave to enter as a visitor until 20 March 1992. In March 1992 he successfully applied to take what turned out to be a three month English course at the Hotel and Travel Training College in Oxford Street and, on the application, he gave the same address. On 16 March 1992 he made an application to the respondent for leave to remain as a student and, on the application, he gave the same address. In September 1992 he, so it appears, went to Goldsmiths College, but he did not notify the respondent that he had moved "because no-one told him to do so" (see para. 9 of the decision of IJ Boyd).
5. By reason of that application his leave to enter was automatically extended. He became an over stayer on 22 April 1992.
6. The respondent refused the application for leave to remain as a student on March 25 1992. He appealed that decision, giving as his address the Hotel and Training College. That appeal was heard on 12 November 1992, by which time he had left the College. During the appeal he gave his address as 1 Lycett House and that address was recorded on the respondent's file. The appeal was dismissed on 4 December 1992.
7. On 22 January 1993 the respondent sent a letter to the principal of the appellant's college notifying the appellant that he had no basis of stay and that if he failed to embark the respondent would consider whether, on the basis of facts known to him, it would be right to make a deportation order against him. The appellant did not embark.
8. Towards the end of 1991 he had begun part-time employment in breach of the conditions attached to his leave to enter as a visitor. For the purposes of his employment and for certain other purposes he adopted the name and national insurance number of a person named Drissi Khalid. He remained in employment until 2006 when he was made redundant. During the period of his employment he paid taxes. He used his correct name with friends and in his dealings with his bank. He also used the correct name to obtain some at least of his educational qualifications.
9. Following the letter sent to the principal of his college on 22 January 1993 the respondent did not seek to contact him again nor consider whether to remove him.
10. On 15 April 2002 the appellant made an application to the respondent for leave to remain on the grounds of long residence. There was no reply to that application and no action was taken to remove the appellant.
11. A further application was made on 26 July 2005. That application was refused on 3 August 2006. The respondent decided that the appellant did not meet the requirement of 14 years continuous residence because there was insufficient evidence that he was living in the United Kingdom from 1992 to 2002.
12. The appellant then showed that he was living in the United Kingdom during that period. The respondent reconsidered the application and decided on 19 September 2006 that the letter of 22 January 1993 sent to the principal of the college "stopped the clock" under the relevant paragraph. The respondent also said that it was not appropriate to grant leave to remain because the appellant had assumed a false identity to work.
13. In October 2006 IJ Boyd heard the appeal against the respondent's decision to refuse the appellant's application for leave to remain on the grounds of long residence. The appellant gave evidence that he was living at 1 Lycett House, SW2 (from which address he had made his student application) until autumn 1993 and that he had not seen the letter of 22 January 1993 until recently.
14. IJ Boyd dismissed the appellant's appeal. He held that the letter of 22 January 1993 "stopped the clock". He also held, in the alternative, that even if no notice had been given to the appellant his appeal should be dismissed under paragraph 276B(ii) on public interest grounds.
15. In November 2006 SIJ Allen refused to order re-consideration.
16. Following an order made by Collins J on 10 May 2007 IJ Blair-Gould held a re-consideration hearing.
17. By now the appellant had obtained disclosure of his file under the Freedom of Information Act. The file showed that the respondent knew when the letter of 22 January 1993 was written that the appellant was living at 1 Lycett House, SW2. He had told the adjudicator that he was living there at the hearing of his appeal in November 1992 and the address was noted by the respondent's representative at the hearing and put on the respondent's file. One may presume that he also told the adjudicator that he was no longer at the Hotel and Travel College.
18. IJ Blair-Gould held that the finding made by IJ Boyd that the clock had stopped was based on a material error of law, namely a mistake as to whether the appellant had given the respondent his residential address. However, the immigration judge decided that IJ Boyd had made no material error in his alternative public interest conclusion.
19. If the appellant is to succeed he has to show that IJ Boyd made a material error of law. If he shows that he did, then he is entitled to the second stage reconsideration refused by IJ Gould.
20. Before examining what IJ Boyd said in so far as the issue of public interest is concerned, it is necessary to look briefly as to what he said about stopping the clock.
21. In paragraphs 19 and 20 he said:

19. The Appellant did not notify the Secretary of State of any change of address to which any documentation should be served. He did not notify the Secretary of State of his change of college. Accordingly, therefore, the Secretary of State was perfectly entitled to use the address of the appellant at 287 Oxford Street, London, namely the Hotel and Travel Training College as the place for service of the RON67 Notice.

20. The issue is therefore whether that Notice was properly served on the appellant. The Notice itself did not give the appellant's address. I am not satisfied the address was required on that Notice as it was attached to a letter to the Hotel and Travel Training College at 287 Oxford Street, London, the address given by the appellant in his Notice of Appeal. As the college was named as the appellant's authorised representative there appears to be no reason why service of the letter dated 22 January 1993 with the copy RON67 attached thereto should not be treated as effective service. The fact that the appellant may have changed address or left the college at that time and did not know that this had been served is of no consequence, that is the appellant's fault. The appellant should have notified the authorities directly of any change of address, that is his obligation in order to prosecute any appeal. The net effect of the appellant's appeal to the Adjudicator being refused is that he appears to have gone to ground and he assumed a false identify, in other words he has sought to evade the consequences of the refusal of his appeal.

22. Given that (unknown to IJ Boyd) the appellant had notified the respondent during the hearing that he was living at 1 Lycett House and given that he was living in Lycett House at the time the letter was sent, it was not true to say that the appellant had gone to ground "to evade the consequences of the refusal of his appeal." Nor was it true to say that he had assumed a false identity "to evade the consequences of the refusal of his appeal." He had started to use a false identity for the purposes of obtaining work late in 1991.
23. In paragraph 23 IJ Boyd went on to say:

In the event that I had been of the opinion that the appellant had not been served with an appropriate Notice, I would then have to have considered the implications of paragraph 276B(ii) of the Immigration Rules. The appellant is a divorced man. There is no evidence that he has formed any relationship in the United Kingdom apart from friendships. He is 39 years of age, is generally fit and well. He suffers from asthma and is having investigations on a liver condition carried out. There is nothing to suggest that these are in any way serious or life threatening or that he would be at any risk on return to Algeria from those conditions. He has formed friendships in the United Kingdom as evidenced by the documentation provided. His strengths of connection to the United Kingdom comprise simply his friendships and his employment in the United Kingdom. He has studied here but the first 22 years of his life were spent in Algeria where he has his parents, two brothers and four sisters. He has been employed in the United Kingdom but this has been carried out illegally. The appellant's conduct from the refusal of his leave to remain as a student has been to take whatever steps are necessary to avoid being removed from the United Kingdom. This included him assuming a false identity and National Insurance number in order that he could obtain employment. The appellant stated that his was so he could survive. I am satisfied that it was so that he could avoid detection.

24. It will be noted that the alternative is based on the assumption that the appellant had gone to ground and had assumed a false identity to evade the consequences of the refusal of his appeal, as well as on the assumption that the appellant had not been properly served. Given what we now know, it is not true to say that the appellant had from the time of the refusal of leave to remain taken whatever steps were necessary, including assuming a false identity and NI number, to avoid being removed from the United Kingdom. IJ Boyd in the last sentence disbelieves the appellant's explanation that he had used a false identity to obtain work and thus to survive. He concludes that he had assumed the false identity to avoid detection. The conclusion cannot be right, particularly in the light of the fresh evidence. The most that can be said is that the respondent not having sent the letter of January 23 to the appellant's then known address, and the respondent not having taken any further steps to locate the appellant, the appellant did not tell the respondent that he had moved from 1 Lycett House.
25. The respondent, through Miss Grey, accepted that the conclusion that the appellant had assumed a false identity to avoid detection as an overstayer was open to question. I have no doubt that the conclusion of IJ Boyd in paragraph 23, in the light particularly of the fresh evidence, contained a material error. IJ Blair-Gould, in deciding that the error of law was not material, made the same error when he relied on the "overwhelming fact" "emphasised by" IJ Boyd, namely that the applicant had assumed a false identity and national insurance number in order to obtain employment and to avoid detection as an overstayer.
26. What should this court then do? In the light of the fact that the appellant in 1991 assumed a false identity and NI number to work whilst a visitor and continued thereafter to use that identity for some but not all purposes, is it inevitable that, having regard to the public interest, it would be undesirable for him to be given indefinite leave to remain on the ground of long residence? The respondent, through Miss Grey, fairly and rightly accepted that an IJ could rationally reach the conclusion on the facts of this case that, 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 (although, equally, she maintained that the opposite conclusion was also one rationally open to the Tribunal). It follows that I would order the appeal to be remitted for reconsideration by another tribunal.
27. I should, however, say something about the case of MO Ghana, on which the IJ placed reliance. That appellant entered the UK on 29 September 1989 as a visitor. Thereafter he overstayed. On 28 August 2003 he applied for indefinite leave to remain on the grounds of long residence. At the time of his application he informed the Home Office that he had been using not his real name but an assumed name to gain employment. The IJ had said:

Whilst the Appellant has produced good character references and has evidenced employment and self-employment for periods of the 14 years, his whole personal history and conduct in the United Kingdom has been based on a life of deliberate deceit. As his Representative noted in the letter of 11 August 2003 the Appellant "has committed a most serious offence". I agree with that comment.

28. Unlike Ms Fielden who was counsel for MO, Mr Cox, rightly, in my view, did not accept that the appellant in this case had committed a most serious offence. Offence yes. Most serious offence, no. Nor can it be said in the appellant's case that "his whole personal history and conduct in the United Kingdom has been based on a life of deliberate deceit."
29. The Tribunal went on to say:

12. Ms Fielden sought to argue that this assessment was an unreasonable one for three main reasons. It failed to differentiate between persons who had gone to ground and persons (like the appellant) who had not hidden their whereabouts. It also failed to give the appellant any credit for the fact that the only reason why he had used a false identity (alongside his own) was so that he could work and avoid claiming public funds. Thirdly, it failed to take account of the fact that the appellant had only been able to "clock up" a lengthy residence because of the failure of the Secretary of State to pursue criminal charges or take enforcement action against him earlier.

30. The Tribunal responded to these submissions in the following way:

13. We do not see that the immigration judge was required by the provisions of paragraph 276B to make the differentiations urged by Ms Fielden. She herself accepted that the appellant's use of a false identity was a serious matter and indeed, accepted that it could be viewed as within the category of a particularly serious crime. The fact that such conduct may have been less serious than other types of conduct does not make it wrong for an immigration judge to regard it as a weighty factor counting against the appellant under this rule. In any event it is clear that when weighing up the appellant's circumstances the immigration judge took fully into account that the appellant had worked. We also find no merit in Ms Fielden's submission that the immigration judge failed to take into account that the appellant's situation was a consequence of Home Office inaction. This was not a case of someone simply continuing to stay in the United Kingdom living and working illegally or without authority. This was a case of a man who had taken active steps to use deception by employing a false identity when it suited him. He did this within a very short time of arriving. As correctly noted by the immigration judge:

"he used that false identity to deceive his employers (who might not have otherwise employed him as an illegal immigrant), the Department of Health and Social Security, the Inland Revenue, Hackney Borough Council, at least one credit card company…, Barclays Bank and no doubt many others".

14. Ms Fielden's argument amounts to a plea that the appellant be able to benefit from his own wrongdoing, notwithstanding the length of time over which it was carried out and its serious nature. Even if, to use her words, the appellant's offence of using a false identity was not "causative" of the Home Office inaction, it was properly treated by the immigration judge as a weighty factor telling against the appellant when deciding whether for public interest reasons it was undesirable or not for the appellant to be given indefinite leave.

31. Mr Cox submits that many applicants under the 14 year rule will inevitably have used a false name to obtain work. He points out that under the Immigration Directorate instructions which were published in April 2007 (and therefore not applicable to this appeal), it will not normally be in the public interest to grant indefinite leave to remain to a person unless he has been economically self-sufficient for a significant period of the time he has spent here. Thus, he submits, the main purpose of the long residence rule is to enable persons who have been working here albeit unlawfully to regularise their position. He submits, as Miss Fielden did, that if persons like the appellant are excluded from the benefit of the long residence rule solely because they have assumed a false name in order to work, then most of those eligible to take advantage of the rule will be excluded.
32. In my view MO Ghana should be treated with caution. Unlike this case, counsel had accepted that the conduct of MO amounted to a particularly serious crime. If applied too literally MO would automatically exclude in the public interest from the long residence rule many who, absent other factors, are intended to have the benefit of the rule and who have (I believe) in the past enjoyed it. Whilst the policy which preceded the rule is of no help in interpreting the rule, it may assist in applying the rule. If under the policy it would not have been in the public interest in certain circumstances to refuse exceptional leave to remain, that may be of some help in those circumstances in deciding where the public interest lies to-day.
33. It seems to me that by her correct concession that an IJ could rationally reach the conclusion on the facts of this case that having regard to the public interest there are no reasons why it would be undesirable for the appellant to be given indefinite leave to remain, the respondent is acknowledging that MO Ghana does not necessarily require an IJ to find on the facts of this case that the appeal should be refused.
34. I would accordingly allow the appeal and return the case to an immigration judge for reconsideration afresh.

Rimer LJ: I agree

Sedley LJ: I also agree