Lawful residence and the public interest - treat MO (Ghana) "with caution"
Two recent decisions - GK (Long residence –immigration history) Lebanon [2008] UKAIT 00011 (18-2-2008) in the Asylum and Immigration Tribunal and Belkacem Aissaoui v Secretary of State [2008] EWCA Civ 37 (7-2-2008) provide valuable guidance as to the proper interpretation of the immigration rules relating to the grant of indefinite leave to remain in the UK on the basis of somebody’s long residence here.
Rules 276A and 276B of the immigration rules provide for people to be granted indefinite leave to remain in the United Kingdom if they have completed either a) 10 years’ “continuous lawful residence” or b) 14 years’ “continuous residence”. These terms are explained in rule 276A as follows:
276A. For the purposes of paragraphs 276B to 276D:
(a) "continuous residence" means residence in the United Kingdom for an unbroken period, and for these purposes a period shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time, provided that the applicant in question has existing limited leave to enter or remain upon their departure and return, but shall be considered to have been broken if the applicant:
(i) has been removed under Schedule 2 of the 1971 Act, section 10 of the 1999 Act, has been deported or has left the United Kingdom having been refused leave to enter or remain here; or
(ii) has left the United Kingdom and, on doing so, evidenced a clear intention not to return; or
(iii) left the United Kingdom in circumstances in which he could have had no reasonable expectation at the time of leaving that he would lawfully be able to return; or
(iv) has been convicted of an offence and was sentenced to a period of imprisonment or was directed to be detained in an institution other than a prison (including, in particular, a hospital or an institution for young offenders), provided that the sentence in question was not a suspended sentence; or
(v) has spent a total of more than 18 months absent from the United Kingdom during the period in question.
(b) "lawful residence" means residence which is continuous residence pursuant to:
(i) existing leave to enter or remain; or
(ii) temporary admission within section 11 of the 1971 Act where leave to enter or remain is subsequently granted; or
(iii) an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain.
As was reported on this site in March of last year – before the introduction of the rules there was a concession, or a policy instruction, in operation under which people could be granted indefinite leave to remain. Confusingly what was then the Immigration and Nationality Directorate (the “IND”) of the Home Office (and is now the Border and Immigration Agency (the “BIA”)) continued to operate the policy after the implementation of rules 276A and 276B. They didn’t withdraw the policy until July of 2006, by which time the Asylum and Immigration Tribunal had found that the policy and the rules created two different routes whereby someone could lawfully apply for indefinite leave to remain.
What constitutes lawful residence was examined recently by the Asylum and Immigration Tribunal in GK (Long residence –immigration history) Lebanon [2008] UKAIT 00011 (18-2-2008). That case involved a national of the Lebanon who had been granted leave to enter the UK for 6 months in November of 1995. GK had then applied for asylum in January of the following year. In April of 2001 he was granted exceptional leave to remain in the UK until April of 2005, a period of 4 years. Then in January of 2005 he applied for indefinite leave to remain in the UK. This was refused in February of 2007. GK appealed against this decision.
A panel of two Immigration Judges dismissed his appeal. They considered the definition of lawful residence in rule 276 A (b) and decided that the only kind of lawful residence which GK could rely on was that referred to in rule 276A (b) (ii) – temporary admission (“TA”), where leave to remain had subsequently been granted. They said that GK had been granted TA but that he hadn’t later been granted leave to remain, so his temporary admission did not count. They dismissed his appeal on the basis that he could not satisfy the immigration rules relating to long residence. GK applied for reconsideration to the Asylum and Immigration Tribunal – and was granted an order for reconsideration.
At the reconsideration hearing the single Senior Immigration Judge found that the panel of judges had materially erred in law. Their summary of the facts of the case, upon which the judges had relied, had been entirely incorrect. GK had in fact never been granted TA. Moreover he had been granted to enter for 6 months on his arrival and he had later been granted 4 years’ leave to remain. These grants of leave to remain were relevant to the accumulation of lawful residence under the category in rule 276A (b) (i) “existing leave to enter or remain”.
Crucially what were also relevant under this category were the 5 years and 4 months spent by the IND in reaching its determination of GK’s asylum application which he had made in 1995, and the 2 years the Directorate had spent considering his application for indefinite leave to remain between January of 2005 and its decision in February of 2007. During the second of these two periods GK’s leave to remain had been extended by the operation of section 3C of the Immigration Act 1971. The Act had been amended to include section 3C in October of 2000 but the law whereby where somebody makes an application to extend the leave he or she already has the existing leave is extended until a decision on the application to extend it is reached was previously contained in the Immigration (Variation of Leave) Order 1976. This covered the first of the two periods.
The upshot of all this was that GK had had “at least 10 years’ continuous lawful residence in the United Kingdom” at the time the BIA had refused his application in February of 2007. In the light of this conclusion the Senior Immigration Judge would have allowed GK’s appeal outright on the basis that the Secretary of State’s decision was not in accordance with the immigration rules had it not been for the fact that rule 276C states that if all the conditions of rules 276B is met the Secretary of State “may” grant indefinite leave to remain. So instead he allowed the appeal to the extent of finding that the decision was “not in accordance with the law” (section 86 (3) (a) of the Nationality Immigration and Asylum Act 2002), leaving the Secretary of State to reach a new decision on the basis of his findings.
In Belkacem Aissaoui v Secretary of State [2008] EWCA Civ 37 (7-2-2008) the Court of Appeal considered the discretionary power retained by the Secretary of State to refuse to grant indefinite leave to remain to an applicant who had completed 14 years’ continuous residence. This power is contained in rule 276B (ii) as follows:
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; .
(It should be noted that the rule has recently been amended to include a sub paragraph (iii) which requires applicants between the ages of 18 and 65 to have “sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom” – but this was not in the rule when the decision was made in Mr Aissaoui’s case).
Mr Aissaoui’s application for leave under the long residence rules was based upon his having been living in the UK since 1991, when he was granted leave to enter as a visitor. Then within the period of his leave to enter he successfully applied to take a three month course at a Hotel and Travel Training college (in Oxford Street). Also within the period of his existing leave he applied to the Secretary of State for leave to remain as a student. Shortly after the expiry of his leave he switched to a different college but, because he was not aware that he had to, he did not tell the Secretary of State of this. His application for leave to remain was refused in March of 1992. He appealed against the refusal, giving his address as the Hotel and Travel Training college. At the hearing of his appeal he gave his address as “No 1 Lycett House, London SW2”. The address was recorded on the Secretary of State’s representative’s file. The appeal was later dismissed, and in January of 1993 the Secretary of State wrote to the head of the college telling Mr Aissaoui that he had no basis of stay in the UK and that if he remained here the Secretary of State would consider deporting him.
In 1991 Mr Aissaoui began to work part time. In order to work he adopted somebody else’s name and national insurance number. He remained in employment until 2006. In his dealings with his bank, and with his friends, and in obtaining some qualifications he used his real name.
In 2002 Mr Aissaoui made an application for leave to remain on the basis of his long residence. It was refused by the Secretary of State who said that the letter to his college had “stopped the clock”, and that therefore he had not accumulated the necessary 14 years’ continuous residence. This was the invocation of the provision in rule 276B (i), whereby the period is to be calculated:
“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;”
The Secretary of State also said that due to his assumption of a false identity in order to work it was not appropriate to grant Mr Aissaoui leave to remain.
At the hearing of his appeal Mr Aissaoui told the Immigration Judge that he had been living at No 1 Lycett House, SW2 until the autumn of 1993 and that he’d not seen the letter which allegedly “stopped the clock” until recently.
The Immigration Judge dismissed Mr Aissaoui’s appeal, saying that the letter of January 1993 had stopped the clock. Even if it had not, the appeal would have been dismissed on public interest grounds due to the Mr Aissaoui’s having assumed a false identity. The judge explained his findings as follows:
“The Appellant did not notify the Secretary of State of any change of address to which any documentation should be served. He did not notify the Secretary of State of his change of college. Accordingly, therefore, the Secretary of State was perfectly entitled to use the address of the appellant at 287 Oxford Street, London, namely the Hotel and Travel Training College as the place for service of the RON67 Notice.
20. The issue is therefore whether that Notice was properly served on the appellant. The Notice itself did not give the appellant's address. I am not satisfied the address was required on that Notice as it was attached to a letter to the Hotel and Travel Training College at 287 Oxford Street, London, the address given by the appellant in his Notice of Appeal. As the college was named as the appellant's authorised representative there appears to be no reason why service of the letter dated 22 January 1993 with the copy RON67 attached thereto should not be treated as effective service. The fact that the appellant may have changed address or left the college at that time and did not know that this had been served is of no consequence, that is the appellant's fault. The appellant should have notified the authorities directly of any change of address, that is his obligation in order to prosecute any appeal. The net effect of the appellant's appeal to the Adjudicator being refused is that he appears to have gone to ground and he assumed a false identify, in other words he has sought to evade the consequences of the refusal of his appeal.”
(In fact of course Mr Aissaoui had told the Adjudicator and the Secretary of State’s representative at the hearing in 1992 that he was living at No 1 Lycett House, SW2).
After the initial refusal of his application for reconsideration the Administrative Court ordered reconsideration of his appeal by the Asylum and Immigration Tribunal. By the time of the reconsideration hearing Mr Aissaoui had obtained a copy of all the papers contained in his Home Office file under the Freedom of Information Act. This showed that Mr Aissaoui had informed the Secretary of State’s representative of his actual address back in 1992.
The Tribunal accepted that the Immigration Judge’s finding that the clock had stopped when the notice was served on the College in 1993 was erroneous in law. However it found that the error was not material because of the Immigration Judge’s reliance upon the public interest provisions of rule 276B (ii). In doing so he had relied upon the determination of the Asylum and Immigration Tribunal in a case called MO (Long residence rule - public interest proviso) Ghana [2007] UKAIT 00014 with regard to Mr Aissaoui’s use of a false identity.
The judge said:
“He has been employed in the United Kingdom but this has been carried out illegally. The appellant's conduct from the refusal of his leave to remain as a student has been to take whatever steps are necessary to avoid being removed from the United Kingdom. This included him assuming a false identity and National Insurance number in order that he could obtain employment. The appellant stated that his was so he could survive. I am satisfied that it was so that he could avoid detection.”
Lord Justice Hooper stated that he had no doubt that in the light of what was now known the Immigration Judge’s satisfaction (upheld in the reconsideration of the appeal) that Mr Aissaoui’s use of a false identity was in order both to obtain employment and to avoid detection as an overstayer was open to question. The Court therefore had to determine whether it was inevitable that it would be undesirable for the Mr Aissaoui to be granted indefinite leave to remain, given his use of a false identity in order to work.
The Secretary of State’s representative in the Court of Appeal accepted that an Immigration Judge could rationally find that it would not be undesirable for Mr Aissaoui to be given indefinite leave to remain in the UK.
Holding that in these circumstances the appeal would be allowed and remitted for rehearing the Court proceeded to consider the Tribunal’s reasoning in MO (Ghana). It stated that in its view while the use of deceit to obtain work was an offence – it was not, as the Tribunal had described it in MO (Ghana) a “most serious offence”.
Summarising the submissions made by counsel for Mr Aissaoui the Court noted that many applicants under the 14 year long residence rule would have used a false identity in order to obtain work, and that the current Immigration Directorate Instructions indicate that it will not normally be in the public interest to grant indefinite leave to remain to somebody unless he or she has been economically self sufficient for a significant period of the time he has spent in the UK.
Lord Justice Hooper (with whose judgment Rimer and Sedley LLJ agreed) observed that:
“32. In my view MO Ghana should be treated with caution. Unlike this case, counsel had accepted that the conduct of MO amounted to a particularly serious crime. If applied too literally MO would automatically exclude in the public interest from the long residence rule many who, absent other factors, are intended to have the benefit of the rule and who have (I believe) in the past enjoyed it. Whilst the policy which preceded the rule is of no help in interpreting the rule, it may assist in applying the rule. If under the policy it would not have been in the public interest in certain circumstances to refuse exceptional leave to remain, that may be of some help in those circumstances in deciding where the public interest lies to-day.”
