How different interpretation of the Immigration Rules can alter the outcome of a visa application?
In this complex body of law, it is hard not only to find the relevant rules and policy guidance but also to correctly interpret the relevant provisions of the Rules. In recent years the Home Office has vowed to simplify the Rules, make them more accessible and easier to understand. Sadly, it remains challenging for an ordinary person who does not practise immigration on a day-to-day basis to navigate the Rules.
In practice, issues often arise when applicants’ interpretation of the Rules does not align with that of the Home Office, resulting in refusals with a right to administrative review or appeal as the only remedy.
In this article, we would like to focus on the interpretation of ‘existing limited leave to enter or remain upon their departure and return’ as stated in the definition of ‘continuous residence’ in relation to indefinite leave to remain applications on the grounds of Long Residence (10 years route).
Findings
The Immigration Rules for this visa route were first laid before the House of Commons on 31 March 2003 (Statement of Changes HC 538). Since then, the wording of paragraph 276A(a) has remained unchanged. ‘Continuous residence’ in the Immigration Rules is defined as:
‘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…’
In its ordinary meaning, the phrase ‘existing limited leave to enter or remain upon their departure and return’ should mean existing visa upon departure from the UK and upon arrival to the UK. However, it has come to our knowledge that in the past the Home Office expected that applicants had existing visas upon departure from the UK and upon arrival to the UK under the same visa category.
We would like to address the two following successful appeals in which the applicants challenged the Home Office and their own interpretation of ‘existing limited leave to enter or remain upon their departure and return’.
TT v The Secretary of State for the Home Department
In 2008, in the case of TT v The Secretary of State for the Home Department [2008] UKAIT 00038, the appellant appealed against the Home Office’s decision to refuse her indefinite leave to remain application on the grounds of long residence in the UK, namely due to ‘breaks in continuous residence.
Throughout the concerned 10-year qualifying period, on two occasions the appellant left the UK with leave to remain, which expired whilst she was out of the country, and she obtained valid leave to enter prior to returning to the UK. The Home Office argued that because she had not returned on those two occasions with the same leave which she had when she left the UK, there was a break in the continuous residence and, therefore, the appellant could not satisfy the requirements of the ten-year rule.
It was subsequently held by the Immigration Judge that, for the purposes of 276A-176D of HC 395, a period of continuous residence, as defined in paragraph 276A(a) is not broken in circumstances where a person with leave to remain in the UK obtains further leave from an Entry Clearance Officer while temporarily outside the UK prior to the expiry of the leave to remain. The tribunal was of the view that ‘if it had been thought to be sufficiently important to make that a requirement of the Rule, then we can see no reason why it would have been drafted in those terms’.
Sawehli v Secretary of State for the Home Department (IA/24415/2012)
In 2012, in the case of Sawehli v Secretary of State for the Home Department (Appeal Number: IA/24415/2012), the Upper Tribunal reaffirmed the judgment of TT and its interpretation of ‘continuous residence’. The issue in the appeal also concerned whether or not the appellant had acquired the necessary 10 years of continuous residence to qualify for indefinite leave to remain on the grounds of long residence. In the judgment, Upper Tribunal Judge Kopieczek reiterated the interpretation of the Rules in TT, stating that ‘paragraph 276A does not require a person to have the same leave when returning to the UK as the leave he had when he left.’
Conclusion
It is imperative to contest the Home Office in their own interpretation of the Rules. Challenging the Home Office's decision is not only a tactical ploy in order to preserve one’s immigration status. The successful appeal or administrative review can set a precedent as to how certain provisions of the Rules should be interpreted.
As a result of the abovementioned appeals, the interpretation of the phrase ‘existing limited leave to enter or remain upon their departure and return’ was re-instated to its original meaning.
If you believe that this issue concerns you and that you could be entitled to indefinite leave to remain based on historic 10 years’ continuous residence because of the unfair refusal, please do not hesitate to contact our Immigration team.
Please note that requirements may vary from case to case based on the nuances of your situation, and the information on this page is not intended to replace legal advice.
