Tribunal decisions

The decision

JR/7355/2015

UPPER TRIBUNAL
(Immigration and Asylum Chamber)

Judicial review Decision Notice

The Queen (on the application of Zahra Shojaei Asadiyeh)
[ANONYMITY ORDER NOT MADE]
Applicant

and

Secretary of State for the Home Department Respondent

Before Upper Tribunal Judge Gill

Application for judicial review: substantive decision

Having considered all documents lodged and having heard the parties' respective representatives, Mr J Walsh of Counsel instructed by Behbahani & Co Solicitors on behalf of the applicant and Mr Z Malik of Counsel instructed by the Government Legal Department on behalf of the respondent, at a hearing at Field House, London, on 1 September 2016

Decision: the application for judicial review is refused

Judge Gill:
Introduction and background facts:
1. A Tier 1 (General) Migrant (amongst others) who has "spent a continuous period" of 5 years lawfully in the United Kingdom (hereafter referred to for short as the "continuous residence" requirement) and who satisfies the other requirements listed in para 245CD of the Statement of Changes in the Immigration Rules HC 395 (as amended) (hereafter referred to individually as a "Rule" and collectively the "Rules") will on application be granted indefinite leave to remain ("ILR"). Para 245CD provides that, if the requirements listed in para 245CD are not met, the application "will be refused".
2. The issue in this case is whether the respondent made a public law error in deciding that the applicant had not "spent a continuous period" of 5 years lawfully in the United Kingdom as required by para 245CD(c) and (d). If she did not, whether she erred in law in failing to exercise her discretion outside the Rules and grant the applicant ILR.
3. The applicant contends that all (or nearly all) of the period between 15 March 2010 (the date when she was granted entry clearance as a Tier 1 (General) Migrant) and 17 October 2010 (the first date she arrived in the United Kingdom after entry clearance was issued on 15 March 2010) should have been included by the respondent in calculating the continuous residence requirement because she had submitted medical evidence which explained that she was unable to travel to the United Kingdom in the period between 24 May 2010 and 17 October 2010. She had also explained that she was present in Iran when entry clearance was issued on 15 March 2010 for work-related reasons. Alternatively, the failure to grant her ILR outside the Rules was unlawful, given her entire history and background, including the explanation given for travelling to the United Kingdom on 17 October 2010.
4. The applicant's case is explained in greater detail below. In a nutshell, she contends that the continuous residence requirement in para 245CD(c) and (d) must be interpreted flexibly, from which it follows (it is contended) that the Secretary of State has a discretion in deciding whether the continuous residence requirement is satisfied. The Secretary of State was therefore obliged to consider the medical evidence she had submitted but failed to do so or erred in doing so. Alternatively, the Secretary of State was obliged to consider the medical evidence in her consideration of the discretion outside the Rules but failed to do so or erred in doing so.
5. The applicant is a national of Iran, born on 15 October 1962. She first arrived in the United Kingdom in 2002 with her husband (born on 21 June 1964) and two sons (born on 18 September 1991 and a date that is not apparent from the papers). She pursued her studies in the United Kingdom and qualified as a food consultant. She subsequently gained employment. Further details of her background are given at para 36 below. It is accepted on her behalf that there were gaps in her lawful residence in the United Kingdom prior to 15 March 2010 because her leave expired in September 2009.
6. In October 2009, the applicant left the United Kingdom and travelled to Iran. Whilst in Iran, she applied for entry clearance as a Tier 1 (General) Migrant. On 15 March 2010, she was granted entry clearance as a Tier 1 (General) Migrant, valid from 15 March 2010 until 15 March 2013. The grant of entry clearance operates as leave to enter.
7. On 16 March 2015, the applicant applied for ILR. This means that the relevant 5-year period of continuous residence required to be satisfied under para 245CD(c) and (d) was the period from 17 March 2010 until 16 March 2015. However, as is evident from the above, the applicant did not arrive in the United Kingdom until 17 October 2010.
The decisions and the grant of permission to apply for judicial review
8. The respondent refused the applicant's application for ILR by a decision of 16 March 2015 (hereafter the "refusal decision"). This states (inter alia):
"As you entered the United Kingdom as a Tier 1 (General) Migrant on 17 October 2010 a continuous period of 5 years lawful residence in the United Kingdom, commenced from this date. You have therefore not completed a continuous lawful period of 5 years as of 16 March 2015 and your application falls for refusal."
(emphasis added)
9. On 29 March 2015, the applicant applied for administrative review.
10. In both her initial application of 16 March 2015 and her application for administrative review, the applicant relied upon medical evidence, as follows:
(i) As at the date of the refusal decision, the respondent had before her a letter dated 8 March 2015 (A13) from Dr Sayed Majid Reza Alavi Dehkordi (MD, PhD) in which he said that he examined the applicant on 24 May 2010 after she had fallen heavily backwards, sustaining an injury to her back and bruising to her arm, hip and wrist. He found that her condition "affected [her] body spine, discs between the vertebrae, ligaments around the spine and discs, spinal inflammation, spinal cord, nerves and muscles". He said that he recommended complete bed rest and physical therapy sessions consisting of traction, massage and diathermy three times per week from 24 May 2010 until 17 October 2010. During this period, it was advised that the applicant avoid standing, using the stairs, driving a car and travelling.
(ii) With her application for administrative review, the applicant submitted the following:
a) A second letter dated 18 March 2015 from Dr Dehkordi (A14) in which he clarified that his previous letter was a summary. He said that the applicant had been examined in hospital on 24 May 2015 because she could not move and had intolerable pain. She was therefore unable to travel at all in any circumstances in the period from 24 May 2010 to 17 October 2010.
b) A letter dated 18 March 2015 from Dr Clare Mason (A16) of Park View Surgery in Loughborough. Dr Mason was the applicant's general practitioner. Dr. Mason said, inter alia, that the applicant was seen twice in 2010 when she was noted to have some bruising over her coccyx. An X-Ray of the lumbar spine in October 2010 showed no bony abnormality.
11. By a decision of 31 March 2015 (hereafter the "administrative review decision"), the respondent maintained the refusal, stating (inter alia):

"Reasons why the decision has been maintained

You claim that when your application was assessed, the exercise of discretion was exercised in an unreasonable manner by the Secretary of State.

The test of unreasonableness that is used in assessing administrative review decision is 'Wednesbury' unreasonableness, that is, so unreasonable that no reasonable person acting reasonably could have made it (?).

You asked that discretion be exercised in your favour due to a medical condition which prevented you from travelling and therefore can account for your exceeding the 180 day limit permitted during the past 5 years of your continuous residency. The Secretary of State is unwilling to exercise discretion because a medical report by the [ ] Surgery in Leicester described symptoms that the Secretary of State does not find compelling enough to restrict travel.

We considered that discretion was exercised in a 'Wednesbury' reasonable manner because it was exercised in a manner such that a reasonable person could reasonably have reached that decision. Therefore we have maintained the original decision."
12. Para 6 of the respondent's response dated 5 June 2015 to the applicant's pre-action protocol ("PAP") letter (A98-101) states, insofar as relevant:

"iv) The SSHD carefully considered the medical evidence submitted, including the medical report dated 08 March 2015 and letter dated 18 March 2015 from [Dr Dehkordi], an orthopaedic and arthroscopic surgeon based in Iran. The SSHD also considered the letter from [Dr Mason] dated 18 March 2015. Dr Mason confirmed that your client was seen twice in 2010 following a fall where she twisted her ankle in Iran. Dr Mason noted that your client had, "Some bruising over the coccyx and was treated with simple analgesia".

?

vi) Regardless of whether the facts and evidence contained in your client's application were referred to in the decision of refusal or Administrative Review decision, the SSHD would contend that your client's circumstances and evidence (including those submitted on 16 March 2015 and 29 March 2015), were carefully considered. Anxious scrutiny was applied when the decision to refuse your clients' application was made, on 16 March 2015 and also maintained on 31 March 2015.

?

x) Consequently, the refusal decision dated 16 March 2015 and administrative review decision dated 31 March 215 are maintained."
13. On 2 November 2015, the Upper Tribunal (the "UT") granted permission to apply for judicial review. The decision granting permission states, inter alia, that neither the refusal decision nor the decision on administrative review made any reference to the medical evidence from Dr Dehkordi. It is apparent from the UT's decision that the judge considered it arguable that the medical evidence had not been considered. The judge refused permission in relation to Article 8, stating that the applicant had an alternative remedy because it remained open to her to make a formal Article 8 ECHR application.
The relevant provisions and framework
14. Section 3(2) of the Immigration Act 1971 (the "1971 Act") provides:

"The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality).
If a statement laid before either House of Parliament under this subsection is disapproved by the resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid). "
15. Para 245CD and 245AAA of the Rules, insofar as relevant, read:

245CD. Requirements for indefinite leave to remain

To qualify for indefinite leave to remain, a Tier 1 (General) Migrant must meet the requirements listed below. If the applicant meets these requirements, indefinite leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.

Requirements:

(a) DELETED

(b) ?

(c) The applicant must have spent a continuous period as specified in (d) lawfully in the UK, of which the most recent period must have been spent with leave as a Tier 1 (General) Migrant, in any combination of the following categories:
(i) as a Tier 1 (General) Migrant,
?
(d) The continuous period in (c) is:

(i) 4 years, if ?
(ii) 5 years, in all other cases.

245AAA. General Requirements for indefinite leave to remain

For the purposes of references in this Part to requirements for indefinite leave to remain, except for those in paragraphs 245BF, 245DF and 245EF:

(a) "continuous period of 5 years lawfully in the UK" means, subject to paragraphs 245CD, 245GF and 245HF, residence in the United Kingdom for an unbroken period with valid leave, and for these purposes a period shall not be considered to have been broken where:

(i) the applicant has been absent from the UK for a period of 180 days or less in any of the five consecutive 12 month periods preceding the date of the application for leave to remain, except that any absence from the UK for the purpose of assisting with the Ebola crisis which began in West Africa in 2014 shall not count towards the 180 days, if the applicant provides evidence that this was the purpose of the absence(s) and that his Sponsor agreed to the absence(s);

(ii) the applicant has existing limited leave to enter or remain upon their departure and return except that where that leave expired no more than 28 days prior to a further application for entry clearance, that period and any period pending the determination of an application made within that 28 day period shall be disregarded; and

(iii) the applicant has any period of overstaying between periods of entry clearance, leave to enter or leave to remain of up to 28 days and any period of overstaying pending the determination of an application made within that 28 day period disregarded
(b) ?

(c) ?
16. The respondent has guidance entitled: "Indefinite leave to remain: calculating continuous period in UK". The version in force as at the date of the two decisions in the instant case was version 11.0 which was in effect from 23 January 2014 (hereafter the "Guidance"). Page 2 of the Guidance states:

"This guidance tells you how to calculate the five year continuous period in the UK requirement for an applicant in the following categories:

?"
17. Pages 19-22 of the Guidance (insofar as relevant) read:

"Indefinite leave to remain: calculating continuous period in UK

Absences which will not break continuity in the continuous period

This page tells you when absences will not break continuity when calculating if the continuous period requirement has been met.

No more than 180 days absence are allowed in any of the five, four, three or two consecutives 12 month periods, depending on the category, preceding the date of application for indefinite leave to remain (ILR).

?

Absences must be for a reason consistent with the original purpose of entry to the UK or for a serious or compelling compassionate reason in the following categories:

? work permit holder
?

And the following sub categories of the points-based system

? Tier 1 (General)
?

Absences must be connected to the applicant's sponsored or permitted employment, or the permitted economic activity being carried out in the UK, for example, business trips or short secondments. This also includes, any paid annual leave which must be assessed on a case by case basis and must be in line with the UK statutory annual leave entitlement.

?

Evidence in the form of a letter from the employer which sets out the reason for the absences, including annual leave must be provided.

?

Compassionate reasons will vary but can include:

? serious illness of the applicant or a close relative
? a conflict, or
? a natural disaster, for example, volcanic eruption or tsunami.

The applicant must provide evidence in the form of a letter which sets out the reason for the absence with documents of support. For example:

? medical certificates
? birth or death certificates
? evidence of disruption of travel arrangements

?

The period between entry clearance being issued and the applicant entering the UK may be counted toward the qualifying period, as long as it does not exceed 90 days. This can occur if the applicant is delayed travelling to the UK. The period of delay will not be counted as an absence if it does not exceed 90 days. If the delay is more than 90 days, none of the period between entry clearance being issued and the applicant entering the UK can be included in the continuous period calculation."

(emphasis added)
18. At the hearing, Mr Malik submitted that the part of the Guidance that concerned absences of 180 days applies to absences from the United Kingdom once an individual has arrived in the United Kingdom. He submitted that this part of the Guidance was of no relevance in the instant case because the period in issue in the instant case concerns a period after entry clearance had been issued but before the applicant had arrived in the United Kingdom.
19. Mr Walsh did not seek to suggest that the part of the Guidance that concerned absences of 180 days was relevant in deciding whether any part of the period between 15 March 2010 and 16 October 2010 should be included in calculating the continuous residence requirement.
The applicant's case
20. Although the applicant's application for ILR stated that she was submitting a letter from her employer to explain her absences from the United Kingdom for work-related reasons, Mr Walsh informed me that this letter could not be found. He did not request an adjournment although I drew attention to the fact that I did not have this letter before me.
21. In relation to the refusal decision, Mr Walsh submitted that the respondent erred in law by applying too inflexible an approach in deciding whether the applicant satisfied the continuous residence requirement. The refusal decision gives as the sole basis for the refusal decision the mere fact that the applicant had not entered the United Kingdom until 17 October 2010.
22. In this regard, Mr Walsh relied upon the decision of the Upper Tribunal in BD (work permit - "continuous period") Nigeria [2010] UKUT 418 (IAC) (Cranston J and Senior Immigration Judge McKee), the head-note of which reads:

"Paragraph 134 of the Immigration Rules provides for indefinite leave to be granted to a work permit holder who has spent "a continuous period of 5 years lawfully in the UK" in that capacity. Unlike the 'long residence rule' at paras 276A-D, no definition of this requirement is given in HC 395, and there is currently no guidance to be had from the Immigration Directorates' Instructions. However, "a continuous period" must be construed sensibly, so as to allow periods of absence abroad. Where such absence has been required by the appellant's employer in the course of his work permit employment, it need not impair the strength of connexion to the United Kingdom which is normally established by five years' residence."
23. Mr Walsh also relied upon Granovski v SSHD [2015] EWHC 1478 (Admin) (HHJ Coe sitting as a judge of the High Court). The judge accepted the case of the claimant in that case that his application for ILR should have been decided under para 135 of the Rules as it was when he entered the "Highly Skilled Migrant Programme". The judge therefore decided that the claimant did not need to satisfy the continuous residence requirement in para 245CD of the Rules. It is clear from paras 4 and 5 of the judge's decision that, if the claimant's application had fallen under para 245CD of the Rules instead, he would have had to show that he had spent a continuous period lawfully in the United Kingdom of 4 years and that the issue in that case was not whether a period between the date of issue of entry clearance and the date of arrival after entry clearance was issued counted towards the relevant continuous residence requirement but whether periods of absences outside the United Kingdom during the 4-year qualifying period exceeded the maximum of 180 days per calendar year. Nevertheless, although the observations of the judge concerning the continuous residence requirement were obiter, Mr Walsh relied upon para 79 of the decision, where the judge said:

"79. ? The meaning of continuous residence cannot be literal. I consider the approach in BD to be correct. There is a wealth of evidence here which would support the fact that the Claimant resides here. ? The Defendant has applied a rigid mathematical formula without considering the broader picture. There is significant material which she could and should have considered in deciding the issue of residence. She did not. She only considered the percentage of time the Claimant spent abroad. There is a proper analogy made by the Claimant, for example, with an airline pilot resident in the UK, but who is abroad most of his working time. In this respect the Defendant's decision was flawed. Similarly, the Defendant failed to exercise her discretion on this point properly or at all. She did not consider whether or not to disregard the absences by balancing them against the other factors. The exercise of discretion was not carried out in an appropriate manner."
24. Mr Walsh submitted that the respondent failed to consider the medical evidence in the refusal decision. It is the applicant's case that the medical evidence was relevant in deciding whether she satisfied the continuous residence requirement under para 245CD. Mr Walsh drew attention to the fact that the respondent's Guidance showed that medical evidence was relevant in deciding whether the continuous residence requirement was satisfied.
25. Put another way, it is the applicant's case that there was a discretion under the Rules in relation to the continuous residence requirement. Mr Walsh submitted that the discretion is to be inferred by reason of the fact that the continuous residence requirement must be interpreted flexibly.
26. It is the applicant's case that, as the Guidance had raised the possibility of a period between the date of entry clearance being issued and the date of actual arrival being counted towards the continuous residence requirement, the maximum limit of 90 days cannot be regarded as a "hard-edge" issue. Mr Walsh submitted that it was incumbent upon the respondent to consider the circumstances and decide whether a period in excess of 90 days should be counted towards the continuous residence requirement.
27. In the alternative, it was impermissible for the Guidance to provide that a period in excess of 90 days cannot be counted towards the continuous residence requirement because the Guidance had not been subject to Parliamentary approval: Alvi v SSHD [2014] UKSC 33.
28. Mr Walsh submitted that it is not the case that the Guidance concerned the exercise of the respondent's discretion outside the Rules. This is because page 2 of the Guidance states: "This guidance tells you how to calculate the five year continuous period in the UK requirement for an applicant in the following categories: ?" He submitted that it was therefore clear that the Guidance concerned the continuous residence requirement under the Rules. Accordingly, it was not the case that the 90-day maximum concerned the exercise of the respondent's discretion outside the Rules.
29. Although Mr Walsh accepted that it was not necessary for the Secretary of State to refer, in terms, to every piece of the evidence that was before her, the medical evidence that was relied upon by the applicant called for such consideration. The Secretary of State failed to consider the medical evidence and failed to exercise her discretion in the light of the medical evidence in assessing whether the continuous residence requirement under the Rules was satisfied.
30. Mr Walsh stressed that, in relation to the refusal decision, it was not the applicant's case that inadequate reasons were given why the medical evidence was not sufficient but that the medical evidence had not been considered at all. He submitted that this is clear from the respondent's use of the word "therefore" in the refusal decision.
31. In the administrative review decision, Mr Walsh submitted that the respondent had introduced a new ground of refusal. This is because the administrative review decision considered whether the discretion should be exercised in the applicant's favour, an issue that was not considered in the refusal decision. This is not permissible, given the terms of paras 2.2-2.4 of Appendix AR of the Rules. Given that a new ground of refusal was introduced in the administrative review decision, the respondent should have conferred a further right to seek administrative review, which she failed to do. He submitted that the administrative review decision cannot be relied upon to cure any defects in the refusal decision.
32. Furthermore, in the administrative review decision, the respondent considered the letter from Dr Mason but impermissibly, and without explanation, failed to consider the letter from Dr Dehkordi.
33. Mr Walsh accepted that the applicant did not state in her application that she had been planning to travel to the United Kingdom within 90 days of entry clearance being issued but was delayed due to her injury. However, he asked me to consider the application as a whole. In particular, it was clear from the heading of the letter from Dr Dehkordi, which reads: "Re: Medical report of [the applicant] for her absences from the UK (24.05.2010 - 17.10.2010 and 29.01.2012-08-03.2012)". Mr Walsh submitted that it was clear that Dr Dehkordi was advancing the contents of his report as the reasons why the applicant was prevented from travelling to the United Kingdom.
34. Mr Walsh submitted that para 6 iv) of the respondent's PAP response shows that the applicant's medical evidence was only considered in the administrative review decision.
35. In the alternative, the respondent failed to exercise her discretion outside the Rules and grant ILR in the light of the medical evidence. Mr Walsh submitted that it was clear that the respondent failed to consider the exercise of the discretion outside the Rules in the refusal decision because the refusal decision states that the appellant arrived in the United Kingdom on 17 October 2010 and "therefore" did not to satisfy the continuous residence requirement.
36. At para 12 of the applicant's skeleton argument, it is contended that a proper exercise of the respondent's discretion, whether under the Rules or outside the Rules, would have entailed not only consideration of the medical evidence from Dr Dehkordi but also of certain factors set out at para 12 of the skeleton argument as follows:
i) The applicant's long connection with the United Kingdom. She was first granted leave to enter the United Kingdom in 2002 to study for her doctorate which she obtained in 2006 (student visas from 1 July 2002 to 31 December 2006; HMSP visa from 12 September 2007 to 12 September 2009; Tier 1 General visa issued on 15 March 2010, valid for 3 years and two years to 2015). Her two sons and partner resided in the United Kingdom since the family moved here in 2002. Her older son (the child dependant in the application of 16 March 2015) has been educated in the United Kingdom and attends university here. Her younger son entered the United Kingdom in 2002 with the family and was educated here. He has returned to Iran.
ii) The applicant has held a number of academic and research posts in the United Kingdom related to food management. She has lived in the United Kingdom for 14 years now, albeit that the Secretary of State considers that it has not been continuous residence for the purpose of the Rules. she and her family have invested huge amounts of money in their education and residence in the United Kingdom.
iii) The applicant's immigration history shows (it is contended) that her intentions at all material times were to reside permanently in the United Kingdom. She returned to Iran in 2010 to renew her United Kingdom visa when she sustained the injury which delayed her return to the United Kingdom.
The respondent's case
37. Mr Malik submitted that contrary to the applicant's submissions, the term "continuous residence" was defined under the Rules. Para 245AAA provides that "continuous period of 5 years lawfully in the UK" means "residence in the United Kingdom for an unbroken period with valid leave" (emphasis added). Mr Malik submitted that, unlike leave to enter which is deemed conferred upon issue of entry clearance, residence cannot commence until the individual has actually arrived in the United Kingdom. Para 245CD clearly provides that the 5-year continuous residence requirement is mandatory. Para 245CD provides that, if this requirement is not satisfied, the application "will be refused" (emphasis added). The respondent's Guidance provides an exception when residence in the United Kingdom can be inferred provided the individual arrives within 90 days of the grant of entry clearance. The Guidance sets out how the respondent will exercise her discretion to "count in" a period between the date of issue of entry clearance and the date of actual arrival towards the continuous residence requirement provided the individual actually arrives in the United Kingdom within 90 days. However, there is an absolute bar to counting-in any period that exceeds 90 days.
38. Mr Malik submitted that it follows that any challenge to the respondent's refusal to exercise her discretion in a case where the period between entry clearance being issued and the date of arrival in the United Kingdom exceeds 90 days is a challenge to the respondent's decision on her discretion outwith the Rules and the Guidance. He submitted that the respondent's decision as to whether or not to "count in" a period that exceeds 90 days concerns a matter of pure residual discretion.
39. Mr Malik accepted that the refusal decision did not make any reference in terms to the medical evidence. However, this must be seen in the context of the Guidance and the fact that the Guidance made it clear that any period in excess of 90 days between entry clearance being issued and arrival in the United Kingdom will not be counted towards the continuous residence requirement and therefore that the discretion will not be exercised. Mr Malik therefore submitted that the respondent did consider the exercise of discretion in the refusal decision. Her decision was that it would not be exercised.
40. Mr Malik submitted that the mere fact that the respondent did not expressly refer to the medical evidence in the refusal decision does not mean that it was not taken into account.
41. Mr Malik submitted that the administrative review decision confirmed that the discretion had been considered in the refusal decision. It also gave reasons for not exercising the discretion. At para 6 iv) of her PAP response, the respondent made it clear that she had "carefully considered" the evidence from Dr Dehkordi when the refusal decision was made; it is not the case that the respondent only considered the medical evidence when the administrative review decision was made. This much was clear (in Mr Malik's submission) from the fact that para 6 x) of the respondent's PAP response referred to both the refusal decision and the administrative review decision.
42. In the event that I decided that the respondent had not lawfully engaged with the medical evidence in the refusal decision, Mr Malik submitted that the error was not material in the light of para 6 iv) of the respondent's PAP response. The applicant would have to show that the evidence in support of her case was so compelling that no reasonable Secretary of State could refuse to grant her ILR.
43. Mr Malik drew my attention to the fact that there was no explanation why the applicant decided to remain in Iran in the period between entry clearance being issued and 24 May 2010 when she was injured. The letter from her employer which is said to explain that her absence during this period was for work-related reasons has not been submitted to the UT nor has the letter from the applicant explaining her absence.
44. Furthermore, there was no evidence before the respondent that the applicant had been planning to travel to the United Kingdom within the period of 90 days from the date that entry clearance was issued and that her plan to do so was delayed due to her injury. This was only raised in her grounds of administrative review (A26 (i) of the bundle), after the refusal decision had been made. Mr Malik drew may attention to the fact that the evidence that was before the respondent when the refusal decision was made was the evidence at A8-12 of the bundle. However, the letters listed at A8 are not before me. At A9, the applicant said that she injured her back within 90 days. However, she did not say that the injury was the reason why she did not travel to the United Kingdom within the 90 days.
45. In relation to the decision in BD, Mr Malik asked me to note that, at the time that BD was decided, there was no definition of continuous residence in the Rules. The Upper Tribunal construed the phrase "continuous residence" because there was no definition of this term in the Rules. The Rules were amended subsequently and para 245AAA inserted by HC 760 with effect from 13 December 2012. Accordingly, Mr Malik submitted that BD could no longer apply.
46. In any event, Mr Malik submitted that BD and Granovski should be distinguished on the ground that the claimants in BD and Granovski had arrived in the United Kingdom. The issue in BD and Granovski was not whether the period between entry clearance being issued and the date of arrival should be counted towards the relevant period of continuous residence but whether the claimants' absences after their arrival in the United Kingdom broke the continuity of their residence in the United Kingdom, whereas the issue in the instant claim is whether a period subsequent to the issue of entry clearance but before the claimant's arrival in the United Kingdom should be included in the calculation of the period of continuous residence.
47. Mr Malik submitted that the real issue in this case is whether the respondent's refusal to exercise her discretion outside the Rules is unlawful. He submitted that, as the discretion was that of the Secretary of State and not the Courts, the respondent's refusal could only be challenged on traditional judicial review grounds.
48. Mr Malik relied upon the decision of the Upper Tribunal in Castro (Removals: s47 (as amended)) [2014] UKUT 234 (IAC) adopting para 36 of the judgment of Lord Brown in South Bucks District Council v Porter (No. 2) [2004] UKHL 33. Decision letters must be read in a straightforward manner. The fact that evidence has not been mentioned in a decision letter does not mean that it was not considered. Reasons can be briefly stated.
49. At para 89 of R (Hamzeh) v SSHD [2013] EWHC 4113 (Admin), Simler J said that the Court should not intervene on the ground that inadequate reasons were given unless the defective reasoning indicates or demonstrates that there would have been a different outcome so that the decision is in error of law.
Assessment
50. I consider first Mr Walsh's submission that it is impermissible for the Guidance to provide for a 90-day maximum on the period between entry clearance being issued and the date of arrival that may be included in the calculation of the period of continuous residence. He submitted that this was because the Guidance had not been laid before Parliament. In this respect, he relies upon the Supreme Court's judgment in R (Alvi) v SSHD [2012] UKSC 33.
51. In Alvi, the Supreme Court considered s.3 of the 1971 Act and held (in summary) that any requirement that must be satisfied for leave to enter or remain to be granted that is in the nature of a rule as to the practice to be followed in the administration of the 1971 Act must be laid before Parliament. It is not permissible for a rule to refer to a document outside the Rules which sets out the requirement to be satisfied.
52. The leading authorities on the interpretation of Rules include Mahad (Ethiopia) v Entry Clearance Officer [2010] 1 WLR 48, [2009] UKSC 16 and Odelola v Secretary of State for the Home Department [2009] 1 WLR 1230. Para 25 of Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 00088 (IAC) sets out the relevant passages from Mahad and Odelola, as follows (the emphasis is mine):

25. The law is settled as to the proper approach to the construction of the Rules. As observed by Lord Brown in Ahmed Mahad v ECO [2009] UKSC 16 at paragraph [10]:

"There is really no dispute about the proper approach to the construction of the Rules. As Lord Hoffman said in Odelola v Secretary of State for the Home Department [2009] 1 WLR 1230, 1233 (paragraph 4):

'Further, like any other question of construction, this [whether a Rule change applies to all undetermined applications or only to subsequent applications] depends upon the language of the Rule, construed against the relevant background. That involves a consideration of the Immigration Rules as a whole and the function which they serve in the administration of immigration policy.'

That is entirely consistent with what Buxton LJ (collecting together a number of dicta from past cases concerning the status of the Rules) had said in Odelola in the Court of Appeal [2009] 1WLR 126 and indeed, with what Laws LJ said (before the House of Lords decision in Odelola) in the present case. Essentially it comes to this. The Rules are not to be construed with all the strictness applicable to the construction of a statute or statutory instrument but, instead sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy. The respondent's Counsel readily accepted that what she meant in her written case by the proposition 'the question of interpretation is ? what the Secretary of State intended his policy to be' was that the court's task is to discover from the words used in the Rules what the Secretary of State must be taken to have intended. After all, under s.3(2) of the Immigration Act 1971, the Secretary of State has to lay the Rules before Parliament, which then has the opportunity to disapprove them. True, as I observed in Odelola (paragraph 33): 'The question is what the Secretary of State intended. The Rules are her Rules'. But that intention is to be discerned objectively from the language used, not divined by reference to supposed policy considerations. Still less is the Secretary of State's intention to be discovered from the Immigration Directorates' Instructions (IDIs) issued intermittently to guide immigration officers in their application of the rules. IDIs are given pursuant to paragraph 1(3) of Schedule 2 to the 1971 Act which provides that:

'In the exercise of their functions under this Act immigration officers shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given them by the Secretary of State ?' (emphasis added)."
53. Accordingly, the first point that I draw attention to is the fact that the Secretary of State's intention is not be discerned by reference to the Guidance in the instant case. In my judgement, this point is of particular significance in the instant case because, whilst the Guidance permits the possibility of a period of non-residence to be included in the calculation of the relevant period of lawful continuous residence, it is clear from para 245CD(c) and (d) and the definition of "continuous period of 5 years lawfully in the UK" in para 245AAA(a) not only that actual residence is necessary but also that an application "will be refused" if the individual has not resided in the UK for an unbroken period for the relevant period with leave. The use of the term "residence" is plain and admits of no ambiguity. It requires the individual to be physically present in the United Kingdom. Once an individual has commenced residence in the United Kingdom, such residence will not be considered to have been broken where any of the three scenarios provided for in para 245AAA(a)(i)-(iii) apply.
54. It is clear, in my view, that once residence in the United Kingdom has commenced, it will not be broken in the circumstances set out at para 245AAA (a) (i)-(iii). However, it is necessary for residence to have commenced before para 245AAA can apply.
55. In contrast to the clear terms of paras 245CD and 245AAA(a), the Guidance provides for a period to be included during which the individual was not resident in the United Kingdom subject to a maximum of 90 days.
56. In my judgment, the Guidance cannot be used to interpret the clear words in para 245AAA(a). To do so would empty the word "residence" in para 245AAA(a) of content and thus rob para 245AAA(a) of its clear intention. This is so notwithstanding that page 2 of the Guidance states: "This guidance tells you how to calculate the five year continuous period in the UK requirement for an applicant in the following categories: ?". The interpretation advanced by Mr Walsh - that there is a discretion in how caseworkers are to apply the continuous residence requirement - does violence to the clear language of para 245CD(c) and (d) and para 245AAA(a), in my judgement.
57. There are the following further difficulties with Mr Walsh's submission that the Guidance sets out how caseworkers were to apply the continuous residence requirement under the Rules and that there is a discretion in how caseworkers are to apply the continuous residence requirement which is to be inferred by reason of the fact that the UT decided in BD that the continuous residence requirement must be interpreted flexibly:
(i) There was no definition of the continuous residence requirement at the time that BD was decided, whereas it is the case that not only does para 245AAA(a) provide a definition for the purposes of para 245CD, it makes it clear that residence in the United Kingdom is necessary. Accordingly, reliance upon BD is misplaced.
(ii) Likewise, reliance upon Granovski is misplaced. The observations of HHJ Coe at para 79 of Granovski were clearly obiter.
(iii) More importantly, in Granovski, the judge relied upon BD which, for the reasons I have given, cannot apply in relation to applications under para 245CD given the clear definition in para 245AAA(a).
(iv) Furthermore, both BD and Granovski concerned periods of absences after the individuals concerned had arrived in the United Kingdom whereas the instant case concerns a period between entry clearance being issued and arrival in the United Kingdom. It is clear from the definition of "continuous residence" in para 245AAA(a) that these two issues are treated differently. Accordingly, it is not appropriate to read across observations about whether absences after an individual's arrival break continuity to whether, as a matter of discretion, the period between entry clearance being granted and arrival in the United Kingdom counts towards the continuous residence requirement.
58. Given that para 245AAA(a) requires "residence" - which, in my view, means that residence must have commenced - that para 245CD specifically states that if the requirements of the Rule are not satisfied the application will be refused, the only way of making sense of the part of the Guidance that permits a period between entry clearance being issued and the date of arrival to be included in calculating the period of continuous residence - without doing violence to the language of paras 245AAA(a) and 245CD - is to acknowledge that this part of the Guidance sets out how the Secretary of State will exercise her discretion outside the Rules. The Secretary of State is in effect stating that, notwithstanding that such a period cannot amount to "residence", she is prepared to permit such a period to be included in certain circumstances provided the maximum of 90 days is not exceeded.
59. Accordingly, I agree with Mr Malik that this part of the Guidance concerns the exercise by the Secretary of State of her discretion outside the Rules.
60. The next question is whether it is permissible for the Secretary of State to impose a maximum of 90-days of such non-residence (i.e. between entry clearance being issued and the date of arrival) to be included in the calculation of the relevant continuous residence requirement.
61. Mr Walsh submitted that, once the respondent has opened the possibility of a period between entry clearance being granted and arrival in the United Kingdom being included, it is impermissible to impose a maximum. In doing so, he relied upon Alvi. This submission is misconceived, because the principle in Alvi concerns requirements that are in the nature of a rule, whereas the 90-day maximum concerns the exercise of the Secretary of State's discretion outside the Rules. The requirement in issue in the instant case is that of residence. Paras 245CD(c) and (d) and 245AAA(a) set out the requirement of residence which is in the nature of a rule and which has been laid before Parliament. Accordingly, there has been compliance with the principle in Alvi.
62. The 90-day maximum on the period of non-residence between entry clearance being issued and the date of arrival which, in the Secretary of State's exercise of discretion, may in certain circumstances be included in the calculation of the continuous residence requirement can therefore only be challenged on the ground that it represents an unlawful fetter of her general discretion.
63. In this respect, I have found the judgment in R (Thebo) v Entry Clearance Officer [2013] EWHC 146 (Admin) where Mostyn J considered the mandatory grounds of refusal in paras 320 (7A) and 7(B) of the Rules and said, at para 31:

"31. ? I am also satisfied that these rules fall outwith the no-fettering of discretion principle. ? In Alvi at para 42 (per Lord Hope) and 111-112 (per Lord Walker) it was emphasised that the immigration system had to be both predictable and workable. Therefore the Secretary of State must be entitled to lay down ? "bright-line rules". Given that she is enjoined to make rules which control immigration I simply cannot see how a rule which, subject to her residual discretion, requires her to refuse entry in certain (understandable) circumstances can be categorised as irrational and therefore unlawful. On the contrary, I consider these rules to be completely rational. If their language is tendentious then that does not amount to an impermissible fettering of discretion since they are made in pursuance of an important legislative aim."
64. If (as is plainly the case) it is not unlawful for the Secretary of State "to lay down ? "bright-line rules"" in setting down mandatory provisions under the Rules, it cannot a fortiori be unlawful for her to lay down in guidance that she publishes a bright-line beyond which she will not exercise her general discretion outside the Rules, in my judgement.
65. I have therefore decided that the Guidance is not unlawful in imposing a limit of 90 days on the period of non-residence between the issue of entry clearance and the date of arrival that may be included in the calculation of the continuous residence requirement.
66. Having decided these issues, I turn to consider the applicant's case against the refusal decision.
67. For the reasons given above, I reject the applicant's case that the Secretary of State failed to apply the continuous residence requirement under the Rules flexibly. I have given my reasons for interpreting the continuous residence requirement in para 245CD and para 245AAA(a) as I have. Given that the applicant did not arrive in the United Kingdom after entry clearance had been granted until 17 October 2010 and the fact that para 244AAA(a) plainly requires residence to have commenced before any period of residence can be included, the respondent was plainly entitled to conclude that she did not satisfy the 5-year continuous lawful residence requirement and refuse the application under the Rules on the basis that she did arrive in the UK until 17 October 2010, without more.
68. The same applies to the Secretary of State's decision on the exercise of her discretion outside the Rules and under the Guidance. Since the Guidance provided for how the discretion outside the Rules would be considered and given that this makes it clear that any period between entry clearance being granted and the date of arrival which exceeds 90 days will not be taken into account, the Secretary of State was plainly entitled to apply her published policy, without more. In my judgement, she was entitled to say simply that, as the applicant did not arrive until 17 October 2010, her application fell to be refused. Mitting J said in R (Fu) v SSHD [2010] EWHC 292 (Admin) (para 13 of the respondent's skeleton argument), "it is only to be expected that the rules will be applied in the ordinary case automatically without the exercise of careful discretion based on individual facts". If (as is the case) that is so in the case of a rule, it must apply equally in relation to a policy that limits the circumstances in which the discretion outside the Rules will be applied in an individual's favour (in this case, that the maximum of 90-days is not exceeded). There is no need for the Secretary of State to consider whether the particular circumstances of an individual who has exceeded the 90-day maximum justify the exercise of discretion in the individual's favour outwith the Rules and the Guidance.
69. Accordingly, I have concluded that the respondent did consider the exercise of her discretion in the refusal decision, as is confirmed in the administrative review decision. The fact that she did not refer in terms to the medical evidence does not mean that it was not considered. It was sufficient for her to apply her policy for the exercise of her discretion and state simply that, as the applicant did not arrive until 17 October 2015, her application was refused.
70. Mr Walsh submitted that such was the nature of the medical evidence of Dr Dehkordi that it was incumbent upon the respondent to consider the evidence. He stressed that it was not the applicant's case that the respondent had failed to give adequate reasons for not accepting the medical evidence but that she had simply failed to consider the medical evidence. He relied upon the fact that the Guidance showed that medical evidence is relevant in deciding whether the continuous residence requirement is satisfied.
71. However, the fact is that there is nothing in the Guidance that shows that medical evidence is relevant in deciding whether the continuous residence requirement is satisfied in cases where the period between entry clearance being issued and the date of arrival exceeds the maximum of maximum of 90 days stated in the Guidance.
72. In my judgement, it was not necessary for the respondent to say in terms that the medical evidence did not assist the applicant. It was self-evidently the case that the medical evidence could not surmount the clear requirement in para 245AAA(a) for "residence" and the 90-day maximum imposed by the Secretary of State in the exercise of her discretion outside the Rules for including a period of non-residence between entry clearance being issued and the commencement of residence in the calculation of the continuous residence requirement.
73. I have therefore decided that the Secretary of State was entitled to refuse the application under the Rules and outside the Rules in the exercise of discretion, on simple basis that the applicant did not arrive in the United Kingdom until 17 October 2010. This single fact meant both that she could not satisfy the continuous residence requirement under para 245AAA(a) and that she fell outside the 90-day maximum for the exercise of discretion outside the Rules as stated in the Guidance.
74. Accordingly, I agree with Mr Malik that the applicant can only challenge the refusal decision on the basis that the respondent's refusal to exercise her general discretion outwith the Rules and the Guidance is unlawful, i.e. on the basis that no reasonable Secretary of State could have refused to exercise her general discretion outside the Rules and the Guidance and grant ILR.
75. In this regard, I have decided that, whilst the factors relied upon at para 12 of the applicant's skeleton argument (para 36 above) may well be considered by many to be strong, it is impossible to say that no reasonable Secretary of State could have refused to grant ILR outwith the Rules and the Guidance given the following:
i) There was nothing before the respondent as at the date of the refusal decision that showed that the applicant had planned to travel to the United Kingdom prior to the end of the 90-day period from the date that entry clearance was issued and that her travel was delayed because she sustained an injury on 24 May 2010. Mr Walsh asked me to read the application as a whole. He submitted that the contents of the letter dated 8 March 2015 from Dr Dehkordi (A16) made it clear that he was advancing the reasons given in the letter to explain why the applicant was prevented from travelling to the United Kingdom. I agree with this proposition but for an important qualification, that it is clear that Dr Dehkordi was advancing reasons why the applicant could not travel to the United Kingdom in the period from 24 May 2010 until 17 October 2010. He made no mention of the period prior to 24 May 2010 and plainly restricted his comments, in terms, to the period from 24 May 2010 to 17 October 2010.
ii) The letter from the applicant's employer, which is said to have explained that her absence from the United Kingdom in the period prior to 24 May 2010 was for work-related reasons, was not in the bundle and no request for an adjournment was made notwithstanding that I drew attention to the omission.
iii) The period between 15 March 2010 and 17 October 2010 amounts to 216 days, i.e. 2.4 times the period of 90-days set out in the Guidance as the maximum period of such non-residence that can be included in the calculation of the continuous residence requirement.
76. I have therefore concluded that there is no public law illegality in the refusal decision.
77. Accordingly, I do not need to decide whether there was any public law illegality in the administrative review decision. Mr Walsh and Mr Malik agreed that, in the event that I concluded (as I have) that there is no public law illegality in the refusal decision, the claim would be dismissed.
77. For all of the above reasons, this claim for judicial review falls to be dismissed.
78. I will hear the parties on any application for permission to appeal to the Court of Appeal, costs and any ancillary matters when the judgment is handed down.
Order
79. I make an order that this judicial review application be dismissed.

Signed Date: 27 October 2016
Upper Tribunal Judge Gill