SB (Turkey) v Secretary of State for the Home Department

This is an application for permission to appeal against a determination of Senior Immigration Judge Martin, dismissing the appellant’s appeal against the respondent’s refusal to grant his application for indefinite leave to remain (“ILR”) after a first-stage reconsideration. The appellant’s appeal was initially dismissed by Immigration Judge Kealy on 29 April 2008. Reconsideration was ordered, and the matter came before Senior Immigration Judge Martin. After a hearing on 23 July 2008, she dismissed the appeal in a determination promulgated on 8 August 2008.

The appellant had applied for ILR on the basis that he had ten years’ lawful residence in the United Kingdom. As the Senior Immigration Judge said in paragraph 8 of her determination, the appellant’s immigration history is crucial for the purpose of deciding whether or not he complied with the ten-year rule. The Senior Immigration Judge set out that history in paragraphs 9 to 12 of her determination:

“9.

The Appellant arrived in the United Kingdom with leave as a student on 21 June 1997. That leave was successfully extended until 23rd March 1999. On 11^th March 1999 he submitted a further application for extension of his leave as a student. That however was rejected by the Respondent on 31^st March 1999 as being invalid because it was not accompanied by the requisite documents. The Appellant asserts that he resubmitted his application on 3^rd April 1999 with the appropriate documents.

10.

On 30th March 1999 the appellant married a British citizen and on 16 April 1999 he made application for leave to remain as a spouse. That was eventually refused on 12^th January 2001 on the basis that at the date of the application he had no extra leave to be in the United Kingdom. (The Appellant’s marriage did not last.)

11.

On 19^th January 2001 he again made an application by letter to the Respondent for further leave to remain as a student. With the assistance of his MP and further representations to the respondent that application was eventually successful and on 13 May 2003 he was given leave to remain until 21 January 2004. He was deemed to have been given his leave on 29^th September 2001. That leave was thereafter extended through until 30th September 2007.

12.

The Appellant during the currency of the latter leave as a student made application for indefinite leave to remain on the basis of 10 years lawful residence. That was refused by the Respondent on the basis that there had been a gap in his leave between 24 March 1999 when his leave as a student expired until 29 September 2001 when his application to remain as a student was deemed to have been successful. On that basis the clock stopped on 24th March 1999 and only restarted on 30^th September 2001, being the date of grant of his student leave. That means that he would not have amassed 10 years lawful residence until 29^th September 2011.”

In paragraphs 14 and 15 of the determination, the Senior Immigration Judge said that the application on 11March 1999 and the resubmitted application on 3 April 1999 (on the assumption that there was indeed such a resubmitted application) were both invalid. She therefore concluded that the Immigration Judge was correct to accept the respondent’s contention that there was not ten years’ lawful residence because there was a gap between 23 March 1999 when the student leave expired until 29 September 2001 when the appellant’s application to remain as a student was deemed to have been granted.

The Senior Immigration Judge continued (in paragraph 18 of the determination):

“Mr Ali argued that the Immigration Judge should have applied a purposive approach to the Immigration Rules. However, the Immigration Rules represent the government’s immigration policy, and paragraph 276 of the rules provides the circumstances in which a foreign national is to be given permission to remain permanently in the United Kingdom. The rules are quite clear and specific that an applicant must have 10 years continuous residence in order to obtain the considerable benefit of being allowed to remain permanently in the United Kingdom. While the Court of Appeal has, as Mr Ali points out adopted a more purposive approach to the Immigration Rules with regard to student appeals and, in particular, the provisions as to satisfactory progress and the passing of exams, there is a world of difference between temporary admission for a specific purpose such as study and a right to remain in the United Kingdom permanently. The Appellant could have sought to extend his stay as a student within the currency of his leave but he chose not to do so. He applied to remain permanently in the UK. I do not agree that the Court of Appeal’s recent findings as to a purposive approach to the Immigration Rules can be extrapolated to mean that a person should be given a permanent right to reside in the United Kingdom without meeting the requirements of the Rules. There is no ambiguity about the requirements of paragraph 276 of the Rules. They are absolutely clear and are as follows:-”

The Senior Immigration Judge then set out the terms of rule 276A.

In my judgment there is no arguable error of law in those conclusions of the Senior Immigration Judge. Before me Mr Ali, on behalf of the appellant, submitted that the appellant’s position is analogous to the position of someone who, having been granted temporary admission, is then subsequently granted leave to enter or remain. Paragraph 276A(b)(ii) makes it clear that where that occurs the subsequent grant of leave is “carried back” to the beginning of the temporary admission. The practical application of this provision is explained in the relevant IDI: Chapter 18, which deals with long residence. Paragraph 2.2.2 gives this example:

“Mr C applied for leave to enter at Port in 1995. He was granted TA. In 2003, he was granted four years’ Leave to Enter. In 2007, he applied for ILR under the “10 years’ lawful residence” rule.

Mr C will qualify under Rule 276B(i)(a). The grant of leave he received in 2003 means that the time he spent on Temporary Admission between 1995 and 2003 counts as lawful residence, meaning that he has been here lawfully for twelve years.”

Mr Ali submits that the appellant having entered this country with leave and then subsequently having received a further grant of leave is in an analogous position. The difficulty with that submission is that, while I am perfectly prepared to accept that the rules should be construed in a purposive manner, it has to be noted that paragraph 276A is very carefully drafted. Thus, where it is intended that a subsequent grant of leave shall be “carried back” to an earlier event as in the case of temporary admission, express provision is made to that effect. Moreover, it seems to me that the analogy which Mr Ali seeks to draw between the person who is granted temporary admission and the person who has a gap in his leave is not a true analogy. The person who has to wait for a decision on whether or not he is going to be granted leave to enter or remain while he is on temporary admission is waiting for the Home Office to take a decision. In those circumstances he has no control whatsoever over the length of time that the Home Office may or may not take to reach a decision on his application. Thus it may be the case that even a very long delay on temporary admission will mean that a subsequent grant of leave to enter will entitle the applicant to apply for ILR under the ten years’ lawful residence rule. The position is not the same in the case of a person who enters with leave and then, for whatever reason, whether deliberately or through inadvertence, lets that leave lapse, so that there is then a gap of that person’s own making before a further application is made for leave.

The plain fact of the matter is that this appellant did not have temporary admission after 23 March 1999 or at any time. He simply had no permission to be here after 23 March 1999 because his leave as a student had expired on that date. His applications on 11 March 1999 and the resubmitted application on 3 April 1999 (assuming, again, in his favour that that re-submitted application was made on that date) were both invalid. Thus he was not in the position, as would be a person who had been granted temporary admission, of someone who had made a valid application, but was waiting for a decision upon that application. It does seem to me that the rules are clear and precise and there simply isn’t any warrant for putting the gloss upon them that Mr Ali seeks.

He invited me to permit him to pursue an amended Ground 3, which was failure to consider and apply published policy based on the Court of Appeal’s decision in ZH (Bangladesh) v SSHD [2009] EWCA Civ 8. I am perfectly content to consider that amended ground and would not take any pleading point. But the plain fact is, for the reasons I have given, it does not assist Mr Ali. It establishes that IDI’s are not to be used as an aid to construction or as some surrogate from the Rules, but they are relevant in the sense that an Immigration Judge should be aware, when deciding a case, of the underlying IDI. Accepting all that in the appellant’s favour in this case, the fact of the matter is that the IDI deals with temporary admission and how it should be treated, and that, for the reasons that I have given, is quite different from the circumstances here where someone does not have temporary admission but has leave to enter; that leave expires; there is then a gap of that person’s own making before a further application for leave is made.

I turn now to the remaining matter, Article 8. The Senior Immigration Judge concluded that there was no error of law in the Immigration Judge’s conclusion that the appellant’s removal would not be disproportionate. Mr Ali submitted (in paragraph 15 of his skeleton argument on behalf of the appellant) that the ten-year lawful residence rule acted as an admission that it would be disproportionate to expect someone who had been in the United Kingdom for that length of time to leave because that person would be deemed to have created a private life of their own. I do not accept that the 10-year rule acts as such an admission. There may well be other perfectly sound policy reasons for the ten-year rule, and each private or family life case must be considered on its own merits. That, of course, is precisely what the Immigration Judge did. It was further submitted in the skeleton argument that, by reason of the grant of leave to remain as a student in September 2001, the respondent was “estopped from raising the [appellant’s] presence in the United Kingdom whilst he had no leave.” It was also said that if there was a public interest in removing the appellant from the United Kingdom, then the subsequent grant of leave should be taken to have waived that consideration.

In my judgment that submission is not well-founded. It is one thing to decide that an application to remain as a student for a finite period and for a particular purpose, that is to say, to study, should be granted. It is quite another to decide whether an individual should be given indefinite leave to remain in the United Kingdom. There could be no conceivable question of a decision on the former being an estoppel in relation to a decision on the latter. The short answer to this case, even if one has sympathy for the appellant, is that, as the Senior Immigration Judge said, he could have applied to extend his stay as a student. That application might or might not have been successful, but what he chose to do was to apply to remain permanently in the United Kingdom on the basis of the ten-year lawful residence rule when it was quite plain that although he had been in the United Kingdom for ten years there had been a break in his lawful residence. His application was therefore doomed to failure.

For these reasons I refuse permission to appeal, and I have set out my reasons perhaps at somewhat greater length than usual, out of deference to the very clear submissions that Mr Ali has put before me.