COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE KEENE
LADY JUSTICE SMITH
| ZH (BANGLADESH)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Mr A Payne (instructed by the Treasury Solicitors) for the Respondent
Hearing date: Thursday 11 December 2008
Crown Copyright ©
Lord Justice Sedley :
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.
"33. In short, weighing up the factors listed at paragraph 276B(ii) nothing is in his favour except that he has no criminal record and has been in the United Kingdom for a long period of time. That should count as some sort of compassionate circumstance but the rule only applies to people who have been in the United Kingdom for at least a decade so sub-paragraph (f) must amount to more than that and no other compassionate circumstances were raised by the appellant. I bear in mind that for all of the time the appellant has lived in the United Kingdom save for the first six months he has been very aware that he is not entitled to remain in the United Kingdom. I find that he has not discharged the burden on him to show that the decision of the respondent was not in accordance with paragraph 276B(ii) of the immigration rules. He has not demonstrated on the balance of probabilities that there are no reasons why it would be undesirable for him to be given indefinite leave to remain. "
"This appeal has real prospects of success. I give permission on all 3 grounds. Ground 2 raises a point of some general importance i.e. whether, in the light of Aissaoui, the factors identified by IJI at paras 27-29 of his determination are capable of justifying the conclusion that, having regard to the public interest and taking account of the factors set out at para 276B (ii) (a)-(g) of the Rules, it would be unreasonable for A to be given indefinite leave to remain on the ground of long residence. "
"Consideration has also been given to Paragraph 395C of the Immigration Rules. Paragraph 395C requires that consideration will be given to the following factors when deciding whether to remove an offender under Section10 of the Immigration and Asylum Act 1999:
(ii) length of residence in the United Kingdom;
(iii) strength of connections with the United Kingdom;
(iv) personal history, including character, conduct and employment record;
(v) domestic circumstances;
(vi) previous criminal record and the nature of any offence of which the person has been convicted;
(vii) compassionate circumstances;
(viii) any representations received on the person's behalf.
You are aged 49 and claim to have lived in the United Kingdom for 16 years and 6 months, but only 6 months of this was with leave to enter. It is not considered that either your age or length of residency provide grounds for not removing you from the United Kingdom. It is not considered that either your ties to the United Kingdom or domestic circumstances are sufficiently compelling to justify you to remain in the United Kingdom. It is noted that you have no close family ties to persons present and settled in the United Kingdom or employment or business interests in the United Kingdom. It is also not considered that there are any sufficiently compelling or compassionate circumstances to justify allowing you to remain in the United Kingdom. Regard has been given to all the representations you have submitted, however for the reasons given above it is considered that your removal from the United Kingdom is appropriate."
"6. In his evidence in chief the appellant adopted his statement and confirmed that he came to United Kingdom in 1991 when he was aged about 34. He gave a list of different places where he had lived: first in Barness in Windemere where he worked in the Raja Tandoori restaurant; then in Manchester where he worked in various places; Wigton in Cumbria where he worked in Oh Calcutta! for 4 months; Edinburgh where he worked for a few months at the Raj restaurant in Leith then the Bangalore restaurant. After that he said he worked in Guildford and Haslemere in Surrey then at the Farringdon Indian Tandoori, in Oxfordshire.
7. He said that he had moved around so much because he did not have a National Insurance number so when people needed him they employed him and when they were able to employ genuine people with NI numbers they would stop employing him. He said that the longest time he worked in any one place was in Mumbles in Newport, where his witness was from. From January 2007 until now he had lived at a friend's house in Birmingham.
8. Mr Hussain said that he had made many friends: most of them Bangladeshi. The bosses at the places where he worked were friends. Otherwise he said he spent his time surfing the internet on his laptop looking at Bangladeshi newspapers, or looking up the Home Office website to see information about his application. He said that he was on the electoral role and had voted once. He had applied for a NI number.
9. In answer to questions from the Presenting Officer he said that he had arrived in the United Kingdom on the 7th April 1991. He came as a visitor and said "then there was a political problem so I delayed my journey and I liked this country so I stayed. My uncle travelled here with me but did not settle in the United Kingdom: he went on to USA. I Iived with various people then got jobs. I knew that I was illegal. Some of my friends knew that I was here illegally, so did the restaurants where I worked, and Abu Bakar my witness here today. Some of them advised me to make a claim for settlement. I used an alias in 2001 because I was told that if you use genuine details then people will catch you so I was scared. I have seen a doctor in the time I have been here. I once went to hospital. I have a doctor's card I registered about four years ago.
10.Asked about the evidence of his time spent here he said that he was paid in cash but had a bank account which he obtained by using his passport, a driving licence and the help of his previous solicitor. Before he came to the United Kingdom he lived with his parents. He was still in contact with them and they were described as "OK generally". He also had a sister in Bangladesh. He said that he was not able to send money back to his parents because he did not earn enough. He said that when I became jobless his circle of friends helped him get the next job and he was not concerned about how far away that was. He became nervous and got a fever and went to hospital for one night 1992 or 1993. He said that he did not return after his visit visa because there were political problems in Bangladesh and his family was rich and everyone knew him so he had problems. He said that he did not have a particular problem as such but was scared all the time of the opposition party.
11. Next to give evidence was Mr Abu Bakkor who also adopted his statement of 10th January 2008, with one small correction as to a date when the appellant had been his tenant which was January 1997 not 1996. He confirmed that he had been a British citizen since 1989. He said that he ran a restaurant called Lal Qila in Mumbles and had owned restaurants there since 1984. He met the appellant when he came with a friend to visit his restaurant: he had employed the appellant when he was short staffed, then the appellant moved to Mumbles.
12. He said that he knew that the appellant was not entitled to work in the United Kingdom but sometimes when he was short staffed he just took whoever was available. He said that they had become friends since 1996 and even when he was not working in Mumbles they would stay in contact.
13. ln answer to questions from Mr Khalfey, Mr Bakkor said that the appellant worked in his restaurant on and off since 1996, and sometimes he worked elsewhere. The appellant had paid him £40 per week. He said that he had become aware that the appellant had no status in United Kingdom after a few years because normally if you ask someone about their status they did not like it. He said "l do know that I should employ people who are legal, but the restaurant was co-owned by a partner and we made a joint decision. It is wrong that I did not pay NI or tax for him but I wish to apologise for this now."
14. In re-examination Mr Bakkor said that he needed to employ staff who could cook Indian and Bangladeshi food. Mr Husain was a second chef, and the longest continuous period of time he worked for him was more than one year. "
"24. The decision of the Secretary of State does not explicitly refer to sub paragraph 276(ii). The decision does however consider all the same information as is contained in that sub-paragraph under the auspices of paragraph 395C of the Immigration Rules. This contains exactly the same wording of the factors which have to be considered with the addition of a category of "length of residence in the United Kingdom"; a consideration which is obviously missing from paragraph 276B(ii) since long residence will already be established by paragraph 276B(i). "
Ground 1: introducing Rule 276B
Ground 3: failure to deal with Rule 395C
Ground 2: the application of the long residence rule
"27. Mr Hussain's situation is slightly different to that of the appellant in MO in that Mr Hussain did not use his deception to deceive his employers, who all appeared to know that they were employing him illegally. It is a similar situation in the sense that Mr Hussain has accepted that he used a false identity to avoid being detected by the authorities, and has gone to extraordinary lengths to avoid detection by moving many times, sometime hundreds of miles, and using a network of people prepared to help him avoid detection by housing and employing him despite being aware of his status.
28. The Secretary of State considers that the appellant should be prevented from benefitting from ILR by the facts of his circumstances. While it is true that the decision letter does not consider it explicitly with regard to paragraph 276B(ii) MO makes clear at paragraph 5 of that decision that all aspects of paragraph 276B have to be met, and particularly so where the, as in this case, the contents of the refusal letter do raise "public interest reasons for deciding to refuse the appellant's application."
29. In his statement of evidence, Mr Hussain minimises the circumstances under which he has been living in the United Kingdom since he arrived as a visitor. He says, for example at paragraph 11 that "I respect this country and am a law-abiding citizen. I have never been involved in any immoral or illicit activity and have always cherished the laws and freedoms that this country has preserved..." Elsewhere he describes himself as being of "good character". Even for an application under a rule which acknowledges that a person may be in the United Kingdom illegally, it is not accurate to describe his situation as one where he has never been involved in illicit activity. His evidence was that for the past 17 years he has been involved in regular, routine illegal work, evading the authorities by travelling around the country, using a false identity where necessary and colluding with others to maintain his deceit. That is not a description of a "law-abiding citizen". I therefore find that his personal history including character, conduct and employment history make it undesirable for him to be given indefinite leave to remain.
30. His personal connections to the United Kingdom are also not strong. He has never married and is not in any relationship. He has no children and has no family members living in the United Kingdom. In Bangladesh on the other hand he has his parents and a sister. His evidence was that he used to live with his parents before coming to the United Kingdom and that he is from a well respected family. He is still in regular contact with his parents. There is nothing to prevent him returning to resume his family life in Bangladesh.
31. His domestic circumstances in the United Kingdom show that he has not been able to settle in one place for very long and is used to moving around to different places. I accept that he has no criminal record and that counts in his favour. His age is a neutral factor: he came to the United Kingdom as a mature adult and has spent most of his life outside of the United Kingdom."
There followed his conclusion, quoted earlier in this judgment.
MO (Ghana) and Aissaoui
"From the list of factors …. It is clear that the intention behind the rule is to ensure that whether a person with a history of illegal or unlawful stay can nevertheless succeed will depend on a wide range of circumstances, including the nature and extent of his unlawful stay."
"[Counsel] herself accepted that the appellant's use of a false identity was a serious matter, and indeed accepted that it could viewed as within the category of a particularly serious crime.
The status of the IDI
Until April 2003 there was no provision in the Immigration Rules for a person to be granted indefinite leave to remain on the grounds of long residence. The long residence concession allowed for a discretionary grant of settlement after 10 years continuous lawful residence or 14 years continuous residence of any legality, provided there were no serious countervailing factors.
Under the provisions of the Nationality, Immigration and Asylum Act (NlA) 2002, which came into effect in April 2003, there is no right of appeal against refusal for those seeking leave to enter or remain under concessionary arrangements. As a consequence the long residence concession was brought within the scope of the Immigration Rules from 1 April 2003.
2.3. DECIDING WHETHER TO GRANT LEAVE
It is important to remember that possession of the required period of continuous residence in the UK does not entitle the applicant to a grant of leave, but only to be considered for a grant. Whether leave is granted or not is a matter of judgement.
That said, the general rule is that a person who satisfies the appropriate continuous residence requirement should normally be granted ILR, unless a grant would, in all the circumstances of the case, be against the public interest.
Paragraph 276B(ii) of HC395 sets out a number of points which should be considered in all cases. This guidance provides further advice on some of those points.
Personal history, including character, conduct, associations and employment record
"Character, conduct and associations" goes beyond criminal convictions and enables the caseworker to consider whether anything we know about the appellant's activities in the UK or abroad makes it undesirable for us to grant ILR.
This could include concern about the applicant on the basis of national security, war crimes, crimes against humanity, serious criminality (whether convicted or not) or other activities that make the applicants presence in the UK not conducive to the public good.
A history of anti-social behaviour or low level criminality, especially if it has led to the issue of an ASBO, or the applicant's having signed the sex offenders register might be grounds to refuse ILR.
The applicant's employment record will often be a significant consideration. The main purpose of the two Long Residence rules is to enable people who have been working here, or otherwise contributing to the economy, to regularise their position. Therefore, caseworkers need to consider what the person has been doing while here, and what economic contribution, if any, he has made. It will not normally be in the public interest to grant ILR under these Rules to someone unless he has been economically self-sufficient for a significant period of the time he has spent here.
Lord Justice Keene:
Lady Justice Smith: