EA (Nigeria) v Secretary of State for the Home Department

This is a renewed application for permission to appeal to the Court of Appeal following a refusal by me on the papers dated 1 December 2014. The applicant seeks to appeal a decision of the Upper Tribunal promulgated on 23 December 2013 which dismissed his and his wife’s appeal from the decision of the First-Tier Tribunal which was promulgated on 30 August 2013. That determination itself dismissed their appeal from the decision of the Secretary of State for the Home Department which refused their application for indefinite leave to remain in the UK either on the basis of the immigration rules or on human rights grounds. There may be a question of whether or not an extension of time to make this application is needed. If it is needed, I grant it.

The application before me is made by the applicant husband, but the wife’s position would follow. Both are citizens of Nigeria. The applicants came to the United Kingdom in October 2007. He is an engineer. His wife came to the UK in February 2009 and she has worked in various capacities and also undertaken charity work. Since the applicant came to the UK he has been self-employed as an engineer and has spent much of his time working abroad. Over the five-year period from 2007 to 2012 he has been absent from the UK for a total of approximately 828 days. During three of the five annual periods, 2007 to 2012, he was abroad from the United Kingdom for periods totalling in excess of 180 days in each year. That was, it is accepted, for business purposes, pursuing the applicant’s self-employment.

During the time that the applicant has lived in the UK he has bought a house, he has paid taxes and all other sums due, such as council tax, and has done so regularly. He is involved with his local church, as is his wife.

The refusal letter took the view that the applicant had to demonstrate that for the five years during which he claimed to have spent continuously in the UK he had been in the UK at least 180 days here and that could not be done. It is the submission of Mr Pipi before me today that this was an error on the part of the officer dealing with the application of the applicants.

Before the First-Tier Tribunal the claim for leave to remain indefinitely in the UK based on continuous residence was abandoned expressly by the representative of the applicant and his wife. That fact is recorded in the FTT judge’s decision. The case proceeded only on the basis of “family life”, based on the immigration rules and Article 8. That claim failed.

Before the Upper Tribunal the applicant and his wife were represented by counsel. Counsel attempted to resurrect the claim on the basis of continuous residence of five years. The Upper Tribunal judge refused to allow that to be done, holding that it had been expressly abandoned below and that there was no evidence to suggest that this had been done in bad faith or without the consent of the applicant and his wife or that there had been some other fundamental mistake. However, the Upper Tribunal judge also concluded that the point would have been a bad one anyway. The appeal was therefore dismissed on all grounds.

This morning Mr Emeka Pipi puts forward two arguments in support of the application for permission to appeal in what is a second appeal. First, he submits that it is obvious that the applicant is entitled to seek indefinite leave to remain in the UK on the basis of his continuous period of five years spent lawfully in the UK. He submits it is inexplicable why the representative abandoned this point in the First-Tier Tribunal.

Mr Pipi submits that the principle in the case of R v Secretary of State for the Home Department ex parte Robinson [1997] Immigration AR 568 should be extended so as to apply to cases where an “obvious” point has been expressly abandoned below on behalf of the client, whether with or without the client’s consent. Otherwise, it is submitted, there could be many cases of injustice where rights of clients are not properly taken into account by the courts.

Secondly, Mr Pipi submits that on the proper construction of the relevant rule, together with the policy, it is clear, indeed obvious, that the applicant satisfies the continuous five-year period requirement and therefore this appeal would have a very strong chance of success.

The relevant rule on which the applicant relies on the immigration rules is Rule 245CD(c), under the heading “Requirements for indefinite leave to remain” the body of the rule states:

“To qualify for indefinite leave to remain, a Tier 1 (General) Migrant must meet the requirements listed below. If the applicant meets these requirements, indefinite leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.

Requirements: … (c) Unless the application is being made under the terms set out in appendix S, the applicant must have spent a continuous period of 5 years lawfully in the UK …”

There was from December 2011 until, I think, December 2012 a “policy” that was in force in relation to the application of the rule that I have just read out. At paragraph 2.1 of Annex B to that policy, which is headed “calculation of the qualifying period of continuous leave for settlement”, there is the following statement under the heading “calculation for the five-year period for settlement”:

“When assessing if an applicant has met with the criteria for five years’ continuous residence in the UK, short absences abroad, for example for holidays (consistent with annual paid leave) or business trips (consistent with maintaining employment or self-employment in the UK), may be disregarded, provided the applicant has clearly continued to be based here.”

Paragraph 2.3 of the same Annex B is headed “discretion in cases where continuous residence has been broken”. That provides:

“Time spent here may exceptionally be aggregated and continuity not insisted upon for cases where:

•

There have been no absences abroad (apart from those described in paragraph 2.1 above) and authorised employment or business here has not been broken by any interruptions of more than three months or amounting to more than six months in total for the whole five-year period. Decisions in such cases must be taken at HEO level or above.

Or

•

There have been longer absences abroad provided the absences were for compelling grounds either of a compassionate nature or for reasons relating to the applicant’s employment or business in the United Kingdom. Where continuous residence has been broken, periods may be aggregated or shortfalls disregarded only with the approval of an SEO or Grade 7.

This discretion only applies where the continuity of residence has been broken due to absences abroad. It does not apply where the lawfulness of residence in the UK has been broken. In other words, where the applicant has overstayed during the five years …”

In essence, Mr Pipi’s argument is that there is no case law on the proper construction of what is meant in the rule by the phrase, “Must have spent a continuous period of five years lawfully.” He submits that when one considers that phraseology, in the light of the policy provisions which I have just read out, then it is strongly arguable that the applicant would fulfil that requirement.

In that respect he submits that paragraph 2.1 of the policy document, when dealing with business trips, is not to be construed as stipulating that the business trips themselves should be for only “short absences abroad”. He submits that that requirement in the policy is only relevant to holidays and not business trips. With great respect to him I cannot read it in that way and in my judgment it is plain beyond argument that the requirement that there should be only short absences abroad applies both to holidays and business trips.

With regard to paragraph 2.3 of the policy document Mr Pipi relies on the second bullet point and submits that if there are compelling grounds or reasons relating to the applicant’s employment or business in the United Kingdom, then that can be put in the scales and taken into account in seeing whether or not the applicant has spent a continuous period of five years lawfully. The problem with that argument in this case relates to the facts. The facts are that in total the applicant was abroad for a period of 826 days during the five-year period 2007-2012 and in three of the five years he was abroad for over 180 days. It may well be that that was in connection with his employment as a self-employed person, but it is difficult to say on the facts that I have (which are not very great), that there is a clear argument that these periods relate to the applicant’s employment or business in the United Kingdom.

Accordingly, I am not satisfied that there is such a clear case that this would warrant it being described as an “obvious” point and therefore would fall into an extended “Robinson obviousness” argument if the principle in Robinson were to be extended in the manner that Mr Pipi submits it should be.

Accordingly, this application does not meet the second appeal test despite the very helpful, forceful and attractive argument that has been mounted on behalf of the applicants. I must therefore dismiss this application.