The Long Residence Saga Continues – Rules versus Policy

Since R (on the application of Juned Ahmed) v Secretary of State for the Home Department (para 276B – ten years lawful residence) [2019] UKUT 00010 (IAC) was decided in October 2018, and then reported by the UT in early 2019, satisfying the Long Residence Rule at §276B of the Immigration Rules has become a pot of gold that is out of the reach of many that previously would have expected to be holding it firmly in their hands. There might however be some hope in the form of the Long Residence Policy Guidance which is far more generous than the rule it provides guidance on, and based upon which the Upper Tribunal (IAC) has granted permission in three judicial review claims challenging the refusal of long residence applications where the applicants had failed to meet the strict test in §276B(i)(a).

The long residence rules are set out at §276B of the Immigration Rules, and provide:

“276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:

(i) he has had at least 10 years continuous lawful residence in the United Kingdom.

(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) compassionate circumstances; and

(f) any representations received on the person’s behalf; and

(iii) the applicant does not fall for refusal under the general grounds for refusal.

(iv) the applicant has demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with Appendix KoLL.

(v) the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded.

Any previous period of overstaying between periods of leave will also be disregarded where –

(a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or

(b) the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.”

Paragraph 276A of the Immigration Rules defines lawful residence as follows:

“(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 (as previously in force), or immigration bail within section 11 of the 1971 Act, where leave to enter or remain issubsequently 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.”

The decision of the UT in Juned Ahmed held that the long residence rules in §276B of the Immigration Rules contain a strict requirement of continuous lawful residence such that even a single day of overstaying would result in a failure to satisfy the requirements of the rule. The headnote in the reported decision states:

“If there is no ten years continuous, lawful residence for the purposes of para 276B(i)(a) of the Immigration Rules, an applicant cannot rely on para 276B(v) to argue that any period of overstaying (for the purposes of 276B(i)(a)) should be disregarded. Para 276B(v) involves a freestanding and additional requirement over and above 276B(i)(a).”

Thus the grace period of 14 days provided by §39E of the Immigration Rules, (as well as the previous grace period of 28 days where applicable) would not be able to rescue such an application; and the fact that §276B(v) makes express reference to the aforementioned grace periods has no impact on the strict requirement in §276B(i)(a) of 10 years’ continuous lawful residence. This came as a surprise to many practitioners who had experience of applications being granted were there had been short gaps in lawful residence. It appeared that the previous understanding of the rule had been wrong on all sides. However, as set out below, the experience of practitioners might well have been a result of the application by caseworkers of the SSHD’s policy guidance, as opposed to the more exacting requirements of §276B; and it might well be that in light of the decision in Juned Ahmed, the same caseworkers are now abandoning the policy guidance in favour of the Rule- but the latter is arguably unlawful. Both exist side by side, and both must be applied.

The decision in Juned Ahmed was reported by the UT, and then followed up by the decision in R (on the application of Masum Ahmed) v SSHD [2019] EWCA Civ 1070 were the Court of Appeal affirmed the correctness of the UT’s decision. This was a permission decision, but presided over by two Lord Justices at a hearing, and permission specifically granted by the Court to rely upon the decision- the expectation no doubt being that this would put a stop to any other appeals based on a challenge to the correctness of Juned Ahmed:

“19. In view of the fact that there are numerous appeals to this court which advance the argument with which we have dealt, we direct that this judgment be published, and may be cited notwithstanding that it is a decision on PTA.”

Grant of permission by the UT

Despite the above recent background suggesting that the long residence issue was settled, the UT granted permission last Friday in three judicial review claims challenging decisions by the SSHD to refuse applications for ILR under §276B. In each claim the continuous lawful residence requirement was not satisfied although the shortfalls were within the parameters of §276B(v) of the Immigration Rules. The SSHD also found in each claim that the requirements of §353 of the Immigration Rules were not satisfied (the long residence application was accepted to also amount to a human rights claim). There was thus no right of appeal to the FTT as it was assessed by the SSHD that an appeal would not have a realistic prospect of success.

The UT granted permission on the basis that it is arguable in these three claims that the SSHD failed to properly apply her policy guidance, failed to carry out a proper Article 8 ECHR assessment, and as a result failed to carry out a proper assessment under §353 of the Immigration Rules.

The arguments in favour of a more generous approach to long residence applications

Paragraph 276B was preceded by the long residence concession which was based on the 1955 European Convention on Establishment (which makes reference to the ECHR in its preamble):

“Considering that the aim of the Council of Europe is to safeguard and to realise the ideals and principles which are the common heritage of its members and to facilitate their economic progress;

Recognising the special character of the links between the member countries of the Council of Europe as affirmed in conventions and agreements already concluded within the framework of the Council such as the Convention for the Protection of Human Rights and Fundamental Freedoms signed on 4th November 1950, the Protocol to this Convention signed on 20th March 1952, the European Convention on Social and Medical Assistance and the two European Interim Agreements on Social Security signed on 11th December 1953;

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Article 3

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3. Nationals of any Contracting Party who have been lawfully residing for more than ten years in the territory of any other Party may only be expelled for reasons of national security or if the other reasons mentioned in paragraph 1 of this article are of a particularly serious nature.”

In a written answer to Parliament on 8 February 1996, Mr Kirkhope (Under-Secretary of State at the Home Office) stated:

“Under the long residence concession, a person who has 10 years or more continuous lawful residence in the United Kingdom, or 14 years continuous residence irrespective of legality, may be granted indefinite leave to remain in the absence of any strong countervailing factors. The grant of indefinite leave to remain under the long residence concession is discretionary and outside the immigration rules. The long residence concession has its origin in the European convention of establishment, article 3(3) of which provides that nationals of any contracting party who have been lawfully residing for more than 10 years in the territory of another party may be expelled only for reasons relating to public order, public health or morality. In operating the concession, however, we do not distinguish between nationals of the contracting parties and other overseas nationals.”

Thus, the long residence concession had a connection to the ECHR, and clearly operated within the sphere of private life rights under Article 8 ECHR, but had a very specific focus on length of residence. No other factors, such as the quality of residence, family life, and potential difficulties in country of origin were taken into account. This is the same with §276B of the Immigration Rules which came into force in 2003.

Paragraph 276B has, from the date of its introduction into the Immigration Rules, contained a strict requirement of 10 years’ continuous lawful residence that does not allow for any period of overstaying. The definition of lawful residence for the purposes of the rule is set out exhaustively in §276A(b). However, for the most part the rule has coexisted with a more generous policy. This was recognised by the Court of Appeal in MD (Jamaica) & GE (Canada) v SSHD [2010] EWCA Civ 213, where the Court also set out the different functions performed by the rule and the policy:

“23. …. But the rule and the concession serve different purposes. The rule prescribes in clear terms the requirements for the discretionary grant of indefinite leave to remain on the ground of long residence. The LRC [Long Residence Concession] gives information as to how the discretion is exercised and states (as a matter of concession) what breaches of conditions may “for the purposes of this concession” be considered as lawful. These include “a short delay in submitting an application, provided the application is subsequently granted”. This provision of the LRC is a concession from the rigours of the rule. The LRC indicates the possibility of condoning short delays in the submission of applications for leave to remain, delays which, under the rule, would be fatal to an application for indefinite leave to remain after 10 years lawful residence.”

The policy has evolved over time so that it is far more generous today than it has ever previously been. In light of the strict construction of §276B of the Immigration Rules in Juned Ahmed (affirmed by Masum Ahmed), the policy departs from the rule to such an extent that application of the rule is arguably not a proper benchmark for assessing whether an appeal to the FTT would have a realistic prospect of success because the FTT would be bound to take account of the generous discretion in the SSHD’s own policy guidance when assessing where the fair balance lies in the Article 8 balancing exercise. The policy seems to follow the interpretation of §276B advanced by the applicant in Juned Ahmed in setting out the way in which the SSHD will exercise her discretion (notwithstanding the requirements set out in §276B); and provides for discretion to be exercised beyond this as well.

It is well established that the SSHD must apply her own policy guidance, and that this is the case even where that policy guidance is more generous than the underlying provisions of the Immigration Rules that it seeks to guide caseworkers in relation to- see the recent reported decision of the UT in R (on the application of Prathipati) v SSHD (discretion – exceptional circumstances) [2018] UKUT 427 (IAC):

“53. The essence of the applicant’s case was helpfully summarised as follows in the judgment of Singh LJ granting permission to appeal, at [29]:

“The Secretary of State has, it is conceded, a discretion. That discretion must be exercised in accordance with her publicly pronounced policy …. . Further, it is submitted that there was an acknowledged failure even to consider exercising that discretion. For that reason it is straightforwardly submitted that the outcome of a reconsideration if there were a correct self direction as to the law, cannot be anticipated by the court or by the Upper Tribunal.”

54. It is noteworthy that the reference to a “discretion” in the respondent’s guidance is not found in the Immigration Rules themselves. The text of paragraph 319C contains no reference to any discretion to waive the maximum 28 day overstay disregard. But despite the mandatory language in which paragraph 319C is framed (as pointed out in the Binaura case), the guidance recognises that the inflexibly worded rules must be, to a degree, treated as including an element of flexibility in their application.

55. Thus, while the rules themselves say nothing about such “exceptional circumstances”, the guidance does. ……

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71. I conclude that it was incumbent on the respondent to consider the question of exceptional circumstances and to exercise its discretion; and that it failed to do so.”

Further, an Article 8 claim would require a much wider set of factors to be considered in carrying out the proportionality balancing exercise. The long residence rule and policy guidance is focused entirely on length of residence, and the legality of that residence (as defined in §276A(b) of the Rules). Other factors such as the quality of that residence, the nature and extent of private and family life ties established in the period of residence, the impact on any children, and the implications of being required to return to the relevant country of nationality all need to be considered in an Article 8 proportionality balancing exercise. To be added to all of this is the impact on the weight to be given to the public interest if the applicant has fallen short by a margin that would otherwise fall squarely within the SSHD’s overall immigration policy- i.e. within §39E (if that is in fact the margin by which an applicant has fallen short).

The upshot of this is that, arguably:

i) The SSHD must expressly apply her policy when considering an application for ILR under §276B notwithstanding the fact that the application fails under the rule.

ii) Even if the application fails under the rule and the policy, the SSHD must carry out an independent assessment under Article 8 ECHR that takes account of the numerous factors relevant to Article 8 ECHR rights that are not taken into account in the rule or the policy.

iii) In considering certification under section 94 of the 2002 Act, or application of §353 of the Immigration Rules, the SSHD must take account of the fact that the requirements of §276B do not fully reflect her own immigration policy when assessing whether there is a realistic prospect of a human rights appeal succeeding at the FTT.

Whether these arguable points are ultimately accepted by the UT remains to be seen of course.

Para 276B at odds with overall immigration policy on overstaying?

There remains a sense of unease at the interpretation of §276B in Juned Ahmed, even though this interpretation is on the face of it consistent with longstanding authority on this issue- see, for instance, SA (long residence concession) Bangladesh [2009] UKAIT 00051 and MD (Jamaica). This is because, the introduction into the Immigration Rules of the 28 days grace period initially (on 13 December 2012), and then §39E of the Immigration Rules (on 24 November 2016) represented a significant and clear immigration policy direction by the SSHD. What was acceptable in terms of overstaying was expressly and narrowly set out in the Immigration Rules. The message was clear- if you act in accordance with the grace period provided, you will be treated as though you have not overstayed.

It would appear that only §276B has been omitted from the effect of this policy so that, even though a person complies with this overarching aspect of the SSHD’s immigration policy, he will still fall foul of the continuous lawful residence requirement in §276B(i)(a). There is an undeniable tension between the overarching policy of the Immigration Rules and the long residence policy guidance on the one hand (which is clearly and expressly consistent with the policy reflected in §39E); and the requirement in §276B(i)(a) on the other hand which is oblivious to the §39E policy.

Is this deliberate, or just careless drafting of the rule by simply tacking §276B(v) onto the end of the previous version of the rule? The way in which the SSHD’s policy guidance is drafted suggests that the expectation on the part of the SSHD herself might well have been that §276B(v) would impact upon §276B(i)(a) so that gaps in accordance with §276B(v) would be overlooked. For the time being, however, the effect of §276B(i)(a) is strict as set out in Juned Ahmed, and applicants who cannot satisfy this strict requirement will have to rely upon the policy guidance, and also fully articulate their Article 8 claims in order to have any chance of succeeding in their applications. Whether there is any appetite for revisiting the construction of §276B in light of the change to the general immigration policy of the Rules with respect to overstaying brought about by the introduction of §39E (and the 28 day grace period before that) remains to be seen.

Mr Zainul Jafferji and Mr Arif Rehman of Clarendon Park Chambers acted for one of the Applicants in this matter (instructed by Lawise Solicitors).

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