United Kingdom Asylum and Immigration Tribunal

OS (10 years' lawful residence) Hong Kong [2006] UKAIT 00031

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 1 March 2006

Date Determination notified: 20 March 2006

Before
Mr C M G Ockelton (Deputy President) Mr A A Wilson(Designated Immigration Judge) Mr J W H Law (Immigration Judge)
Between

OS	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Mr Vokes, instructed by Nelsons Solicitors For the Respondent: Mrs K Heath, Home Office Presenting Officer
DETERMINATION AND REASONS

Paragraphs 276A-D of HC 395 stand alongside the published concession in long residence cases. The terms of the concession are not to be used as an aid to interpretation of the rules. The rules mean what they say and a person who does not meet the requirements of the rules may have the benefit of the Secretary of State's exercise of discretion in his favour under the concession.

1. The Appellant is a British National (Overseas) from Hong Kong. He appealed against the decision of the Respondent on 7 September 2005 refusing to grant him indefinite leave to remain in the United Kingdom on the grounds of ten years' lawful residence here. His appeal was allowed by an Immigration Judge, Mr D Taylor, but reconsideration was ordered at the instance of the Respondent on the ground that it was arguable that the Immigration Judge had erred in his interpretation of paragraph 276A of the Immigration Rules HC 395. Thus the matter is before us.

The facts

2. There is no doubt about the facts. The Appellant has been engaged in education in the United Kingdom since 1995 when he came here aged ten in order to attend school. He has been absent from the United Kingdom for a number of short periods associated with school and college holidays. It is not suggested that as a whole those periods are sufficient to prevent him being regarded as having been continuously resident in the United Kingdom since early 1995. There are, however, three periods of absence which cause a particular difficulty. First, in the summer of 1996 (when he was aged twelve) he had leave to remain until 30 June. He did not depart until 3 July. He returned on 9 September, and was granted leave to enter apparently without any difficulty. Secondly, in the summer of 1997 he had leave to remain until 31 October. He did not depart until 6 December. On his return on 5 January 1998 he was granted leave to enter, again apparently without any difficulty. Thirdly, in the summer of 2002 he had leave to remain until 3 September. He appears to have remained in the United Kingdom until some time in December. When he returned on 14 January 2003, he was granted leave to enter, again apparently without any difficulty.

The law

3. The grant of indefinite leave to remain to those who have had ten years' lawful residence in the United Kingdom has its origin in a long-standing concession outside the Immigration Rules. On 1 April 2003, paragraphs 276A-276D were inserted in HC 395 under the general heading "Long Residence". We shall set out only those parts which are relevant to this appeal. Paragraph 276A contains definitions. "Continuous Residence" is defined as meaning:

"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 appellant is absent from the United Kingdom for a period of six 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 the paragraph goes on to provide that continuity shall be considered to have been broken in a number of circumstances, none of which is said to apply to this Appellant. By the terms of paragraph 276A(b), "lawful residence" means:

"residence which is continuous residence pursuant to:

(i) existing leave to enter or remain; or

(ii) temporary admission within s11 of the 1971 Act where leave to enter or remain is subsequently granted;

…"

4. Paragraph 276B provides that 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 he has had at least ten years continuous residence in the United Kingdom and 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", various grounds being there set out.
5. As we have indicated, the practice of granting indefinite leave to remain originated in a concession. At the hearing before the Immigration Judge, the Home Office Presenting Officer stated that the concession had been withdrawn when the rules relating to long residence were introduced. That was not true. Not only had the concession not been withdrawn then, but we were told by both parties before us that on 28 February 2006 the concession still appeared on the Home Office website, within the Immigration Directorate's instructions. The chapter in question is Chapter 18, headed "The Long Residence Concession" and the version we have seen is dated September 2004. It begins, rather surprisingly, as follows:

"1. Introduction

There is no provision within the Immigration Rules for a person to be granted indefinite leave to remain solely on the basis of the length of his or her residence. The grant of indefinite leave to remain on the basis of lengthy continuous residence is discretionary, each case should be considered on its merits."

6. There is a note on background and there are further provisions of which we give edited extracts for present purposes as follows:

"2. Considerations

When considering an application, where a person has 10 years or more continuous lawful residence, … indefinite leave to remain should normally be granted in the absence of any strong countervailing factors [none of which are said to exist in the present case].

Applications from people who have not completed 10 years continuous lawful residence should normally be refused, unless there are very strong compelling circumstances. …

3. Lawful Residence

Where a person has completed 10 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 10 years, the following breaches of conditions made for the purposes of this concession be considered as lawful:

A short delay in submitting an application, provided the application is subsequently granted;

…

5. What constitutes Continuous Residence

Continuity need not be broken by a small number of short absences abroad of up to six months at any one time during the 10 year period. These absences should normally be ignored, unless such trips are frequent. … In each case the strengths that the ties to the United Kingdom, the reason for, and effect of the absence should be taken into account.

…

10. Refusal of Indefinite Leave to Remain

Applications that do not meet the criteria set out in the above paragraphs should normally be refused unless the circumstances are particularly exceptional and it would, in view of those exceptional circumstances be unreasonable to consider removal. Any case where it is proposed to refuse the application despite the lengthy residence should be referred to a senior officer.

Applications for indefinite leave to remain on the basis of long residence which fall for refusal should be refused under Paragraph 322(1) of HC 395 (no provision in the Rules)."

The Immigration Judge's determination

7. Despite the Presenting Officer's assertion, the Immigration Judge had the terms of the concession before him as it was produced by those acting for the Appellant, and he therefore took it into account in making his determination. It is not suggested that he was wrong to do so. He accepted the Appellant's evidence that his overstaying was accidental. The Immigration Judge noted that there had been no difficulty in the Appellant's obtaining leave to enter on his three returns after the periods when he had departed without existing leave.
8. Paragraphs 16 and 17 of the Immigration Judge's determination are as follows:

"16. As to the interpretation of paragraph 276A of the Immigration Rules I concur with the submission of the appellant's Counsel that, for the purposes of considering whether there has been continuous lawful residence for the requisite ten years, the requirement under 276A(a) for the applicant to have existing leave to enter or remain upon departure and return must be read in the context of sub-paragraph (b)(ii) which provides that there is continuous residence which becomes lawful where leave to enter or remain is subsequently granted. In other words the hiatus is cancelled retroactively by the subsequent grant of admission.

17. As to the respondent's declared policy in such matters I find it to be highly relevant that the Immigration Officer did not seek to apply paragraph 320(11) of the Immigration Rules on any of the three occasions in question. Paragraph 320(11), as I have stated above, provides that leave to enter where there has been an earlier breach of time limits should normally be refused. But this appellant was granted leave to enter on each of the three occasions without any difficulty at all. It was only on the third occasion that the problem was pointed out to him but he was, nevertheless, given leave to enter. I am reinforced in that view by the respondent's declared policy on the IND website at chapter 18 to which I have referred above. It is abundantly clear that the respondent's policy takes account of breaches of conditions in the ten year long residence rules where an application is subsequently granted. The respondent's policies may equally be deduced from the document prepared by the appellant's solicitors setting out 20 similar cases. Those decisions support the appellant's position and I note that no answer or evidence in reply was given on this issue by the respondent."

9. The Immigration Judge concluded that the Immigration Officer dealing with the applicant's leave to enter on each of the three occasions had effectively waived the immediately previous non-compliance. He decided as a result that the decision against which the Appellant appealed was one which was not in accordance with the Immigration Rules as he interpreted them and that, in addition, the Secretary of State had not applied his own policy.

The application for review and the reconsideration hearing

10. The Secretary of State sought reconsideration on the basis that, on the facts as found, the Appellant did not meet the requirements of the Immigration Rules and that, if application of a discretionary concession was in issue, the Immigration Judge ought to have allowed the Secretary of State to exercise his discretion by holding that the application was still outstanding before him.
11. At the hearing, Mr Vokes, for the Appellant, submitted that the differences between the concession and the Immigration Rules amounted to direct contradiction unless the concession was used as an aid to interpret the Rules. His case was therefore that the Immigration Judge's use of the concession to assist in interpreting the rule was correct and that the Appellant had indeed been entitled to succeed under the Immigration Rules. Mrs Heath, for the Respondent, submitted that the Rules were clear and that the existence of the concession would at best only justify the Immigration Judge in allowing the appeal in order that the Secretary of State could consider whether to apply the concession to the Appellant.

Discussion

12. There is no doubt that the difficulties that have arisen in this case arise at least partly from the co-existence of the concession and the Rules. There is no reason in principle why a rule and a concession should not exist side by side, but two matters in this case cause us considerable concern.
13. The first is the Presenting Officer's denial at the hearing that the concession was still in force. We do not suggest that the Presenting Officer was acting in anything other than entire good faith (and it is right to say that Mrs Heath readily accepted the error and apologised for it) but it is troublesome.
14. Secondly, the concession denies the existence of relevant Immigration Rules. It does so specifically in its opening sentences, and it does so again in its closing sentences when it suggests that refusals should be made under paragraph 322 (appropriate for situations for which there is no Immigration Rule) rather than paragraph 276D, which has been the appropriate rule since 1 April 2003. Immigration law is in any event far from simple. Everyone involved in it ought, however, to be able to have some confidence that the system of immigration law promoted and administered by the Immigration and Nationality Department of the Home Office is coherent. It is difficult to take that view when one finds that the draftsman and revisers of the Immigration Directorate's instructions are so unaware of the Immigration Rules as to deny the existence of individual Immigration Rules and that Home Office Presenting Officers (who know the Rules) are so ignorant of the Immigration Directorate's instructions as to deny the existence of individual concessions. As Mr Vokes submitted, members of the public and lawyers who are trying to discover what the law and practice is are entitled to a better service than that.
15. That said, however, we do not accept Mr Vokes' submission that the concession in the Immigration Directorate's instructions is properly used as an aid to the interpretation of the Rules. We say that for three reasons. The first is that it pre-dates the Rule; the second is that it specifically distances itself from the Rule (by denying the latter's existence). The third is that if it is so used it has the effect of contradicting the Rule by not requiring existing leave in circumstances in which the Rule does require existing leave. For reasons which we explain below, there is no need to interpret either the Rule or the concession in a way which would diminish the effect of both.
16. The Immigration Judge accordingly made an error of law in using the concession as an aid to the interpretation of the Rule.
17. The Immigration Judge also erred in law in his approach to paragraph 276A(b). We cannot understand quite how experienced counsel who appeared before the Immigration Judge came to make the submission that the effect of paragraph 276A(b)(ii) was to cause the Appellant's overstaying in the present case to be regarded as lawful residence. He must have been aware that the Appellant had never been granted any temporary admission. Nevertheless, it is clear that the Immigration Judge accepted his submission to that effect. The Immigration Judge erred in law in so doing.
18. In our judgment, those errors were material because as a result of them the Immigration Judge imposed a meaning on paragraph 276B which, properly interpreted, it cannot bear.
19. Despite the errors to which we have drawn attention in the wording of Chapter 18 of the Immigration Directorate's instructions, it seems to us that the co-existence of the Rules and the concession is entirely understandable. The Rules give, in essence, a right to indefinite leave to remain after ten years' lawful residence, but that right is contingent on there having been no illegality. The concession survives the introduction of the Rule to lay out the terms of an exercise of discretion to grant indefinite leave to remain after ten years residence which has not been entirely lawful. It is better to have a right than to have the possibility of benefit under a discretion. That is why, as the Tribunal held in HS (Long Residence – effect of IDI September 2004) Pakistan [2005] UKAIT 00169, the Rules should be applied first.
20. Absences from the United Kingdom are treated differently under the two systems. Under the Rule, a period of absence associated with no taint of illegality is not considered to break the continuity of residence. A period of absence following a period of overstaying does not have that advantage, so it no doubt is to be regarded as breaking the period of continuity. The effect of that is that, under the Rule, the absence resets the clock, enabling a continuous period of ten years' lawful residence to be restarted. The right under the Rule to indefinite leave to remain after ten years' lawful residence arises only when all the residence during the ten years has been lawful.
21. Under the concession, in contrast, there is no absolute requirement that every day of residence during the ten years be a day of lawful residence. The comments in the concession about absences impose no such requirement, and the statement of policy under "Lawful Residence" in the concession indicates the possibility of condoning short delays in submitting applications for leave to remain. A person who has overstayed for one day may fail to meet the requirements of the Rules, but he may well have a strong case under the concession.
22. Thus, although we have held that the terms of the concession cannot be used as an aid to interpreting the Rule, the existence of the concession helps to make it clear that the Rule means exactly what it says. Cases that fall outside the Rule are amply dealt with by the concession.
23. In the present appeal, it is clear from the notice of refusal in the explanatory statement, and was we think accepted on both sides, that no attention had been given to the application of the concession. (In view of what we have said above, it may well be that the Immigration Officer dealing with the application had, like his Presenting Officer colleague, a view that the concession did not exist.) The application of the concession in an individual case is a matter for the Secretary of State's discretion and it would not be right for us to attempt to make the decision for him. What we do say, however, is that it appears to us that the Appellant has an exceptionally strong case under the concession. For the purposes of paragraph 5 of the concession, there has been no break in the continuity of his ten years' residence; for the purposes of paragraph 3 of the concession, the delays after the expiry of existing leave have all been quite short and two of them were when the Appellant was a minor; and we cannot see that there are any strong countervailing factors against the grant of indefinite leave to remain.
24. We have found that the Immigration Judge materially erred in law. We substitute a determination allowing the appeal on the ground that the Secretary of State's decision was not in accordance with the law in that it failed to apply existing policy. We direct that the Secretary of State now consider the Appellant's application for indefinite leave to remain under his policy as contained in Chapter 18 of the Immigration Directorate's instructions and in the light of the contents of this determination.

C M G OCKELTON

DEPUTY PRESIDENT

Date: