Before the Points Based System was implemented (in stages, starting in April of 2008) the Immigration Rules provided routes for immigration into the United Kingdom in a range of categories related to employment or more generally to work and business.
These included the holders of work permits and those in “permit – free employment” (private servants in diplomatic households and domestic workers in private households, and sole representatives (now renamed “representatives of an overseas business”)), overseas government employees, ministers of religion, businessmen, self employed persons, investors, innovators, “retired persons of independent means”, “writers composers and artists” and so on.
Many of these routes have been subsumed into the Points Based System’s Tiers 1 and 2 and many others have been deleted altogether. However some remain, notably representatives of an overseas business, private servants in diplomatic households and domestic workers in private households.
Obviously there are many people still in the UK who have work permits which are still current or who have leave to remain in one of the now deleted categories. So the Immigration Rules still include those Rules containing the criteria whereby people in one of those categories become eligible for indefinite leave to remain in the UK – despite the deletion of the equivalent Rules relating to entry clearance or to the initial grant of leave to remain.
The criteria for indefinite leave to remain all include the requirement that the applicant must have:
“spent a continuous period of 5 years lawfully in the UK”
In BD (work permit – “continuous period”) Nigeria [2010] UKUT 418 (IAC) the Upper Tribunal’s Asylum and Immigration Chamber, chaired by Mr Justice Cranston, had to consider whether the Appellant BD had met this requirement.
BD had been in the UK for thirteen years. For the five years before his application for indefinite leave to remain in the UK as the holder of a work permit he had had a work permit for the necessary five years. However his appeal had been dismissed by an Immigration Judge because he’d spent much of this period working for his UK based employer in Germany and in the United States.
BD argued that the requirement for applicants to have spent a continuous period of 5 years lawfully in the UK could not have been intended to be literally interpreted since if this were the case anyone who simply left the UK for a day trip to France on one occasion would fail to meet the requirement.
He further argued that as far as work permit holders (such as himself) were concerned, the requirement must include periods spent abroad at the direction of the holder’s employer.
The Tribunal was concerned to locate guidance as to how the lawful residence requirement was to be interpreted. It noted that this was difficult because the implementation of Tier 2 of the Points Based System in November 2008 which had entirely replaced the work permit regime had led to the deletion of the guidance issued by the United Kingdom Border Agency (UKBA) to its case workers as to how the requirement was to be applied for work permit holders. The UKBA’s representative before the Tribunal was unable to locate any applicable guidance.
What was available was UKBA guidance as to the appropriate interpretation of the period of ten years’ lawful residence required for applications under the Immigration Rules whereby “long residence” can entitle a person to indefinite leave to remain. Indeed the Tribunal noted that that Rule (Rules 276A) itself set out what periods of time could and could not be included in the calculation of the ten year period.
Significantly – the ten year long residence Immigration Rule enabled people who had lawfully remained in the UK for ten years in a category that in itself did not lead to settlement in the UK (for example as a student) to obtain settlement. The Tribunal said:
“The reason for this, we apprehend, is that for categories which do not in themselves lead to settlement, the strength of connexion to the United Kingdom which merits the grant of indefinite leave is established by actual residence in the United Kingdom for most of the ten years, with a cap being put on the amount of time spent abroad.”
The absurdity of losing an entitlement to settlement because of one day trip to France, taken with the rationale it ascribed to the long residence Rule led the Tribunal to conclude that the continuous residence requirement in categories such as BD’s – which did lead to settlement – was not to be construed literally.
They went on to find that because a literal construction of the Rule led to nonsensical results it followed that the Rule must import a discretion upon decision makers and therefore upon the Tribunal. As to how that discretion should be exercised:
“Of relevance, in our view, will be the reason for the abscence, and the strength of the person’s ties to the United Kingdom, as shown in other ways.”
They found that since each of BD’s absences during the five year period had been due to his commitments to his UK-based employer, and since he’d been domiciled in the UK for tax purposes and had plainly made the UK his home – he did meet all the requirements of the applicable Immigration Rule. The Tribunal accordingly allowed BD’s appeal.
This is a very helpful case for the interpretation of any of the many remaining Immigration Rules which as indicated above cover many people who are in the UK with leave to remain granted prior to the implementation of the Points Based System. The identification of discretion in the calculation of the period – and the relevance of connexions to the UK to its interpretation is a rare instance of the giving back of some power to the Tribunals charged with determining appeals against immigration decisions.
Anyone holding a work permit, or who has leave to remain in any of the other categories listed above to which the requirement of five years' continuous residence also applies for applications for indefinite leave to remain - is strongly advised to obtain professional legal advice when applying for indefinite leave or when appealing against any refusal of indefinite leave.