Tribunal decisions

The decision

ASYLUM AND IMMIGRATION TRIBUNAL

MO (Long residence rule-public interest proviso) Ghana [2007] UKAIT 00014

THE IMMIGRATION ACTS

Heard at: Field House
On 8 January 2007
Determination Promulgated
On 09 February 2007

Before

SENIOR IMMIGRATION JUDGE STOREY
MS M GRIFFITHS
MRS J HOLT

Between

Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:
For the appellant: Ms C Fielden of Counsel instructed by David A Grand
For the respondent: Mr P Deller, Home Office Presenting Officer

Whilst the 14 year rule as set out in paragraph 276B(i)(b) and (ii) presupposes applicants with some history of illegal or unlawful residence, its inclusion of a public interest proviso at paragraph 276B(ii) makes clear that to succeed applicants must show their circumstances considered as a whole do not make it undesirable for them to be given indefinite leave to remain.

DETERMINATION AND REASONS

1. The appellant is a national of Ghana. He seeks reconsideration of a determination by Immigration Judge Strowger notified on 18 January 2006 dismissing his appeal against a decision to refuse to grant leave to remain on the grounds that removal would not place the United Kingdom in breach of its obligations under the Human Rights Act 1998 and to give directions for removal from the United Kingdom.

2. The 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 under the long residence rule. At the time of his application he informed the Home Office that he had been using an assumed name (CK) which he admitted was not his real name.

3. Paragraphs 276A-D set out the immigration rules dealing with long residence. Paragraph 276A defines “continuous residence” and “lawful residence”. The structure of paragraph 276B is first to identify two types of long residence (10 years continuous lawful residence and 14 years continuous residence) and then to apply to each a public interest proviso (paragraph 276B(ii)). A person must first show 10 years continuous lawful residence or 14 years continuous residence under paragraph 276B(i). If he can do that then he must show he meets the further requirement set out in paragraph 276B(ii). Paragraph 276C and D establish that if a person cannot satisfy all the requirements of paragraph 276B he must be refused (paragraph 276D), but that if he does satisfy them all, he may be granted indefinite leave to remain (paragraph 276C). Paragraph 276B states:

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.

4. The long residence rules are based on pre-existing policy concessions known as the “10 year” and “14 year” concessions: see OS (10 years’ lawful residence) Hong Kong [2006] UKAIT 00031 and HS (Long Residence – effect of IDI September 2004) Pakistan [2005] UKAIT 00169. These rules were first inserted into HC395 from 1 April 2003; there have been further amendments since.

5. The immigration judge accepted that the appellant met the requirements of paragraph 276B(i)(b), but did not accept he met those of paragraph 276B(ii). The grounds for reconsideration contended that it was wrong of the immigration judge to have dismissed the appeal on paragraph 276B(ii) grounds since the respondent had not taken the paragraph 276B(ii) issue in the refusal letter nor had it been canvassed by the Home Office Presenting Officer at the hearing or raised by the immigration judge. We can deal with this ground straightaway. We find it has no merit. Whilst the refusal letter of 24 November 2003 does not make specific reference to paragraph 276B(ii), it is clear that its contents raised public interests reasons for deciding to refuse the appellant’s application: see in particular paragraph 4. Further, the appellant was represented at the hearing and it was for him to show that he met all the relevant requirements of the Immigration Rules. In any event an immigration judge is only entitled to allow an appeal under the Immigration Rules if satisfied that an appellant meets all its requirements: see RM (Kwok On Tong: HC395 para 320) India [2006] UKAIT 00039. Ms Fielden rightly did not pursue this ground with any vigour.

6. The principal contention made in the grounds for reconsideration was that the immigration judge had erred in failing to understand that the very purpose of paragraph 276B(i)(b) taken together with paragraph 276B(ii) is to regularise applicants whose stay in the UK has been unlawful: they cited a passage from a judgment of Sullivan J (Popatia and Chew CO 4984 98) stating that: “the 14-year concession is by definition applicable to those who have been guilty of some breach of immigration controls”. We find that this contention fails. In the first place, the immigration judge correctly identified the basic structure of this rule. At paragraph 16 he stated:

“Under Rule 276B ‘having regard to the public interest’ indefinite leave may be granted (it is a discretion) taking into account the listed factors under (ii) (a) to (g). Under 276C the Secretary of State may grant leave if each of the requirements of 276B are met.”

7. Secondly, this contention overlooks that whilst the provisions of paragraph 276B(i)(b) taken together with those in paragraph 276B(ii) are clearly intended (like the 14 year concession which preceded them) to cater for applications from persons not lawfully resident and so with a history of illegal or unlawful residence of some sort, they clearly do not regard everyone with such a history as able to qualify. They impose a public interest proviso. In other words, they recognise that while persons with a history of illegal or unlawful residence can qualify under the 14 year provision (paragraph 276B(i)(b)) they will not qualify if reasons of public interest make that undesirable (paragraph 276B(ii)). From the list of factors set out in paragraph 276B(ii) (a)-(g) 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 illegal and unlawful stay. It should also be kept in mind that the paragraph 276A(a) definition of “continuous residence” excludes breaks of a number of kinds.

8. Thirdly, Sullivan J’s statement in Popatia and Chew was made in respect of the long residence concession, whereas we are concerned with provisions now contained in the immigration rules. The terms of the long residence concession are not to be used as an aid to interpretation of the rules: see OS (10 years’ lawful residence) Hong Kong [2006] UKAIT 00031.

9. That brings us to Ms Fielden’s next submission (based on the third main ground for reconsideration) which was that, even if the requirements of the rule could treat illegal or unlawful stay (depending on its nature and extent) as a relevant factor in deciding whether there was a public interest reason for finding that it would be undesirable to grant indefinite leave, the immigration judge erred in law in the way he assessed its nature and extent in this case. She contended that even taking the appellant’s deception (which she sought to summarise as use of a false name to gain employment) at its highest, that did not suffice as a reason for finding it undesirable in the public interest for indefinite leave to be given to this appellant.

10. We note that Ms Fielden did not repeat the wording given to this argument in the grounds for reconsideration. This spoke of it not being sufficient to amount to any of the “exceptions listed in paragraph 276B for withholding indefinite leave”. That wording misreads paragraph 276B (ii): the list given in 276B(ii) (a)-(g) is not one of “exceptions”; it merely sets out relevant factors or considerations.

11. Returning to the argument as advanced by Ms Fielden, we see no basis for regarding the immigration judge as having failed to take into account all the considerations set out in paragraph 276B(ii). At paragraph 17 he stated:

“Taking the list of factors under 276B(ii) the Appellant is not of an age that would make it difficult for him to return to Ghana and resume his life there. He clearly had established connections in the UK (as indeed would presumably almost anyone applying to remain after 14 years residence) but he has family in Ghana even if he has not kept up close contact (no doubt exacerbated by the fact of his illegal status that has prevented him from visiting Ghana). Most of the other factors broadly favour the Appellant and the exercise by the Respondent of his discretion but there are significant provisos. 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. “

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.

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.

15. Ms Fielden, quite properly, did not seek to pursue any separate arguments under Article 8 beyond raising the point that in her view the immigration judge was wrong to say in paragraph 18 that to reward the appellant’s deceit by giving him indefinite leave would also “inevitably” reward his partner as well, notwithstanding that she was here unlawfully just like him. Her point was that in fact, even if the appellant succeeded, his partner would still need to go abroad to apply for entry clearance. We see nothing at all in this point. Whether or not the partner would have to go abroad, success for the appellant would have provided a viable option for the partner to seek to apply under the immigration rules to be in the United Kingdom as an unmarried partner/fiancée or spouse.

16. For the above reasons we conclude that the immigration judge did not materially err in law. Accordingly his decision dismissing the appellant’s appeal must stand.

Approved for electronic distribution
Signed:

DR H H Storey (Senior Immigration Judge)