Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005028

First-tier Tribunal No: HU/62680/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

10th April 2025

Before

UPPER TRIBUNAL JUDGE LANDES
DEPUTY UPPER TRIBUNAL JUDGE BARTLETT

Between

OLATOUN TOLUWANIMI MAJEKODUNMI
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Jones (Counsel instructed by Freemans Law LLP)
For the Respondent: Mr Parvar (Senior Home Office Presenting Officer)

Heard at Field House on 12 March 2025

DECISION AND REASONS
1. The appellant is a citizen of Nigeria and the United States. On 30 March 2023 she applied for indefinite leave to remain. The appellant’s application was brought on the basis of 10 years’ lawful residence under paragraph 276B of the immigration rules. She came to the United Kingdom as a visitor in March 2012 and as a child student from August 2012. She held leave in various student visa categories until 17 October 2022. On 10 October 2022 she applied for indefinite leave to remain. Whilst that application was pending, she left the United Kingdom on 12 December 2022 and the application was automatically withdrawn in accordance with paragraph 34K of the immigration rules. The appellant re-entered the United Kingdom on 26 March 2023 on a medical visitor’s visa and applied for indefinite leave to remain on 30 March 2023. It is that application which has given rise to these proceedings.
2. The appellant’s claim was refused by the respondent on 23 October 2023.
3. The respondent’s refusal letter set out the following:

1. the application was one for indefinite leave to remain under paragraph 276B of the immigration rules;
2. the total number of absences for the qualifying period from 7 March 2012 until 7 March 2022 was 552 days which was in excess of the permitted amount within paragraph 276A(a) and note was made that the total absences may be more;
3. one reason for refusal was the assertion that deception had been used;
4. consideration was given to whether the appellant’s circumstances were exceptional or significantly compelling to warrant discretion being exercised in the appellant’s favour on an exceptional basis and it was determined that there were no such circumstances;
5. it was acknowledged that the appellant’s absences from 19 March until 16 August 2020 and from 11 December 2020 until 26 February 2021 were during the Covid pandemic and whilst those were unprecedented times the appellant had been aware of the advice which was given on 17 March 2020 advising against all non-essential travel. The appellant had travelled on 19 March with the knowledge that there was a lot of uncertainty at the time;
6. the appellant did not meet the requirements of PL7.3(b) because though she was aged 22 and had resided in the United Kingdom for an approximate total of 11 years and seven months her total absences of 685 days exceeded the amount permitted by PL4.1.
4. The appellant appealed to the First-tier Tribunal who dismissed her appeal in a decision dated 12 August 2024.
5. At paragraphs 10 and 11 of that decision the judge set out the issues as: (i) did the appellant use deception; and “it being accepted that the rules do not contain a discretion to disregard excess absences” (ii) “whether the refusal to disregard the excess absences combined with other factors represents a disproportionate interference in the appellant’s private life rights.”
6. The judge concluded that the appellant had not used deception but that the respondent’s decision was not a disproportionate interference with the appellant’s private life rights. He concluded that she did not meet the rules, but on the face of it she did not meet any discretionary policies excusing absences either [28]. As a result, her appeal failed on human rights grounds.
7. The appellant was granted permission to appeal by a judge of the Upper Tribunal in relation to all four grounds which can be summarised as follows:

1. the respondent’s review relied on the “Covid concession Visa policy” which the judge also relied on. This policy related to those who left the United Kingdom before 17 March 2020 and could not return to the UK before the expiry of their visas and this was the incorrect policy. It was asserted that the correct policy was “Continuous Residence guidance version 6.0 published for Home Office staff on 8 October 2024”;
2. the judge committed an error of law by requiring the appellant to produce the correct version of the correct policy. Under AA (Afghanistan) v Secretary of State for the Home Department & Anor [2007] EWCA Civ 12 the duty falls on the Secretary of State to put relevant policy material before a tribunal to avoid it being misled;
3. the appellant clearly qualified under the policy as it covered travel disruption due to a natural disaster, military conflict or pandemic;
4. the judge applied paragraph CR.2.1 of Appendix Continuous Residence and found that the appellant did not qualify under that provision. The judge did not go on to consider paragraph CR.2.3 and if he had he would have found that the appellant clearly satisfied it. Appendix Continuous Residence was not in force at the date of the application however as the judge decided to take it into consideration he was obliged to consider all of it which he did not do.
Decision
Ground 1
8. Paragraph 25 of the judge’s decision is in the following terms:
“As noted above I have not been provided with copies of any guidance, but the Respondent notes in the review that there was a guidance in the Covid Visa Concession Scheme which is hyperlinked and available to me. The Respondent noted that the concession only applies to those who left the UK before the 17 March 2020. It is noted that the Appellant left the UK on the 19th March 2020 at a time when the UK government had advised against all non-essential travel. The Appellant does not challenge the Respondent’s summary of this guidance. The Appellant claims to have not seen the advice against travel which seems strange given how widely it was publicised at the time. In any event the Appellant did not fall within the scope of the guidance. I do not agree that the Respondent acted unreasonably by not disregarding the 225 days of absence the Appellant attributes to covid.”
9. In the paragraph above the judge identified that the respondent relied on the Covid Visa concession scheme in the review but found that this did not apply to the appellant. It is not disputed that this is correct as the Covid Visa Concession Scheme did not apply. Therefore, it cannot be said that the judge applied the wrong policy.
10. It is asserted that the judge should have applied the “Continuous Residence guidance version 6.0 published for Home Office staff on 8 October 2024”.
11. At the start of the hearing we put to Ms Jones that we were of the view that the “Continuous Residence guidance version 6.0 published for Home Office staff on 8 October 2024” was not in fact applicable to the appellant’s situation and instead the correct guidance was the old version of the “Long Residence” guidance (the version at the date of decision being version 19 published on 5 October 2023) on the basis that this guidance applied to applications on the 10 year route to settlement under paragraph 276B of the immigration rules, whereas the immigration rules had changed post decision and the 10 year route to settlement could now be found in Appendix Long Residence.
12. Ms Jones submitted that the Continuous Residence Guidance applied because it referred to the legal tests and how they should be applied.
13. The Continuous Residence Guidance in force at the date of the First-Tier Tribunal’s decision (version 5 which is not different in these material respects to version 6) sets out (the emboldening is ours):
“This guidance for decision-makers explains how to assess the continuous residence requirement for applications for Settlement (indefinite leave to remain) in the UK under the following routes where Appendix Continuous Residence applies:…Appendix Private Life (previously paragraph 276 ADE(1)-276DH of Part 7) this guidance applies to all settlement applications with the exception of a child born in the UK… Appendix Long Residence (previous paragraphs 276A-276B).”
14. Mr Parvar submitted that the Continuous Residence Guidance was not the correct guidance and the Long Residence Guidance was in fact the correct guidance. This is because the Continuous Residence Guidance does not identify that it applies to paragraph 276B whereas the Long Residence Guidance does.
15. We have concluded that the Continuous Residence Guidance did not apply to paragraph 276B of the immigration rules. It did not apply because Appendix Continuous Residence did not apply to paragraph 276B. That can be seen from considering the immigration rules in force at the date of the application and at the date of the decision. The beginning of Appendix Continuous Residence in force at both those dates sets out the provisions to which it applies and paragraph 276B is not one of them. This makes sense because the continuous residence provisions for that route were, at the time, contained in paragraph 276A of the immigration rules. Therefore, the argument that the judge failed to take into account the correct guidance, namely the Continuous Residence Guidance, is flawed and consequently rejected.
16. Ms Jones submitted to us that if there was another policy, the respondent should have produced it, and because they did not produce another policy, the judge should have applied the Continuous Residence Guidance referred to by the appellant. There would have been a policy of course, but where, as here, the policy referred to by the appellant did not on its face apply to the appellant’s situation, the judge would have had no basis for taking that policy, not even in existence at the time of the decision, into account.
17. The judge did not therefore err as set out in ground 1.
Ground 2
18. This concerns on whom the duty to provide the correct policy lies.
19. Ms Jones relied on AA Afghanistan and we asked if there was any other relevant case law considering that duty. Ms Jones stated that there was no Court of Appeal authority going against the point.
20. Though no other cases were cited by the parties we have considered other case law which does consider the scope of the duty on the respondent. This includes Mandalia v Secretary of State for the Home Department [2015] UKSC 59 and UB (Sri Lanka) v Secretary of State for the Home Department [2017] EWCA Civ 85.
21. In UB Sri Lanka Urwin LJ set out:
16. “In my view there was the clearest obligation on the Secretary of State to serve relevant material and ensure it was before the Tribunals at both levels. In AA (Afghanistan) v SSHD [2007] EWCA Civ 12, Keene LJ made the point clear beyond doubt:
"27. [It was submitted by the appellant that] the attention of the adjudicator should have been drawn by the Secretary of State's representative to the policy on interviewing unaccompanied minors, so as to avoid him being misled: see R v. Special Adjudicator, ex parte Kerrouche [1997] Imm AR 610.
28. As a matter of law, that is right. The Secretary of State should draw relevant parts of his policy to the adjudicator's attention. Merely because those policy documents are publicly available in print or on a website is not enough: where issues of risk of persecution are involved, a decision to return a person or not to his country of origin should not depend on the diligence of that person's representatives."
17. The point was reinforced by Lord Wilson in Mandalia v SSHD [2015] 1 WLR 4546 [2015] UKSC 59. Lord Wilson referred to the judgment of Keene LJ in AA (Afghanistan) and re-emphasised the obligation:
"irrespective of whether the specialist judge might reasonably be expected himself to have been aware of it, the Home Office presenting officer clearly failed to discharge his duty to draw it to the tribunal's attention as policy of the agency which was at least arguably relevant to Mr Mandalia's appeal." (paragraph 19)
18. It is necessary to distinguish the question whether such policy or guidance should be regarded as material to a case in anticipation, before factual findings have crystallised, from whether it is material to the decision actually reached: in other words whether, viewed in retrospect, the guidance might realistically have affected the outcome. I now address the first….
21. I deprecate any suggestion that this obligation of service is displaced or diminished by the availability of the material online. Mr Hare for the Secretary of State did not in fact mount this argument, although it seems likely from exchanges before the hearing that he was pressed to do so. He was right to decline such an argument. Apart from the clear obligation in law derived from authority, many appellants in immigration and asylum cases are unrepresented. In a number of cases where there is legal representation, the quality of representation is less than optimal.
22. The obligation is clear but must not be taken beyond the proper bounds. There is no obligation on the Secretary of State to serve policy or guidance which is not in truth relevant to the issues in hand, and complaints as to alleged failures of disclosure of material which is truly peripheral or irrelevant should readily be rejected.”
22. We have found the guidance in UB (Sri Lanka) particularly helpful. There is an obligation on the Secretary of State to serve policy or guidance which is relevant to the issues in hand.
23. The grounds of appeal submit that the “FTTJ said it was for the appellant to produce the correct version of the correct policy. This is an error of law.” This appears to be a reference to paragraphs 22, 24 and 25 of the judge’s decision. We find that this does not set out that it was for the appellant to produce the correct version of the correct policy. It identifies that the appellant’s skeleton argument referred to guidance without properly naming or identifying where the documents can be found. It is right that at paragraph 26 the judge said that it would be for the appellant to evidence a policy if it existed, but that was specifically in relation to school trips; it was not suggested to us that absences in relation to school trips should be disregarded.
24. Ms Jones submits that there was a footnote to paragraph 17 in the skeleton argument which would have taken the judge to the Continuous Residence Guidance.
25. We accept that the skeleton argument contained a link in a footnote to paragraph 17 to the Continuous Residence Guidance. When we click on it, it becomes page not found and therefore it is not clear that at the time of the skeleton that link worked. However, proceeding on the basis that it did link to the version of the guidance that was in force at the time of the hearing, we accept that the judge did not use that link to obtain the guidance.
26. We find that the judge’s criticisms had some foundation. It is unsatisfactory for both skeleton argument and submissions not to clearly identify what is relied on by a party. The duty lies on both parties to assist the Tribunal and unclear references can put the tribunal in a difficult position.
27. Neither party has behaved as they should have here. The respondent had a duty to the tribunal to produce the correct policy. However, the appellant was represented throughout; if her case had been that it was impossible for her to find the correct policy then she should have asked the tribunal to direct the respondent to produce the policy applicable at the relevant time or have asked for a case management review. Instead, her representatives relied on a policy which was obviously not the correct policy because Appendix Continuous Residence did not apply to applications made under paragraph 276B immigration rules.
28. We accept that the judge was incorrect in stating that the appellant’s skeleton argument did not properly identify where any documents could be found as a result of the footnote. However, the link is to the entire policy, no particular part is identified by section or page number and we consider that the reference in the skeleton could have been substantially clearer and better set out.
29. We accept that the respondent did not provide a copy of the long residence policy and that it is arguable that this was relevant.
30. However, we do not consider that the respondent not providing this policy and the judge’s criticisms of the lack of clarity in the way the appellant’s position was put amount to a material error of law. This is because as we have said above the appellant has relied on a policy which was not applicable to her situation. The skeleton argument before the judge did not submit that the respondent had not produced the right policy; rather the appellant’s case was that the Continuous Residence Guidance was the applicable policy and the way the absences had been treated was not rational or consistent with that policy.
Ground 3
31. Ms Jones submitted that the appellant qualified under the Continuous Residence Guidance because applying it, a sufficient amount of the appellant’s absences would be discounted so that she was below the number of accepted absences.
32. As we have found that the Continuous Residence Guidance does not apply this ground must fail.
Ground 4
33. It is accepted that the judge referred to paragraph CR2.1 in paragraph 29 of his decision. Paragraph 29 reads as follows:
“I also note that under Appendix Private life the Appellant is under 25 and has lived more than half her life in the UK albeit on that basis the Respondent asserted that there were at least 685 days of absence in that longer period and 730 allowing for the additional 45 days f or which the passport could not be provided. CR 2.1 of Appendix Continuous Residence confirms that absences in excess of 180 days in a consecutive 12 month period interrupts continuous residence for the purposes of a private life application. The Appellant was absent for 225 days between 19th March 2020 and 26 February 2021. Appendix private life at PL.7.3 confirms that total absences in excess of 550 days will also break continuous residence. The appellant is well in excess of that and so the appellant cannot qualify under that provision.”
34. As set out above the respondent’s refusal letter referred to Appendix Private Life and we find that as a result the judge was required to consider Appendix Private Life as he did.
35. The judge was wrong to consider Appendix Continuous Residence. Appendix Continuous Residence did not apply, even looking at matters as at the date of the hearing. Appendix Continuous Residence (see paragraph 13 above) only applies to applications under Appendix Private Life for settlement (unless the applicant was born in the UK; this appellant was not). It is right that the appellant applied for settlement but that was not under Appendix Private Life. The only way the appellant could qualify under Appendix Private Life would be on the basis that she was under 25 and had lived more than half her life in the UK but if she were successful this would lead to a period of leave but not to immediate settlement. To qualify for settlement on that basis an applicant must already have permission to stay on that route unless they were born in the UK (see PL 11.3)
36. If, as we find, the judge was wrong to consider Appendix Continuous Residence then it would have been wrong for him to consider CR2.3.
37. The judge did not therefore err as averred in ground 4 of the grounds of appeal. We note that ground 4 as set out in the appellant’s skeleton argument is rather different from ground 4 as set out in the grounds of appeal. The argument in the skeleton argument is that the appellant met the rules at the date of the hearing. However, she did not meet the immigration rules in force at the date of the hearing if Appendix Private Life is relied upon. She had too many absences, as the judge explained and, as we have set out above, Appendix Continuous Residence did not apply. The appellant did not apply under Appendix Long Residence and it does not appear to have been argued before the judge that the appellant would qualify under Appendix Long Residence if she had made an application as of the date of the hearing. We observe that this is likely to have been a “new matter”.
Rule 15 Application
38. Near the end of the hearing, after the conclusion of submissions, Mr Parvar made an application under Rule 15(2)(a) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to file and serve the Long Residence Guidance in force at the date of the hearing before the First-Tier Tribunal Judge. We rejected that application on the basis that this application was made so late in the hearing (after the conclusion of submissions), that it would cause substantial delay and was not in the interests of the overriding objective. It should have been produced long before and at this late stage would not assist.
Notice of Decision
39. The decision of the First-tier Tribunal did not involve the making of an error of law and stands.

J Bartlett

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

3 April 2025