Tribunal decisions

The decision

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: Mr M S Gill QC, instructed by Harvey Son & Filby, Solicitors
For the Respondent: 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.
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.

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 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 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) has spent a total of more than 18 months absent from the United Kingdom during the period in question.
(b) "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.

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 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, 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