OS (10 years' lawful residence) Hong Kong  UKAIT 00031
Date of hearing: 1 March 2006
Date Determination notified: 20 March 2006
|Secretary of State for the Home Department||RESPONDENT|
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.
"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;
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."
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
"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."
The application for review and the reconsideration hearing
C M G OCKELTON