BD v The Secretary of State for the Home Department

This case raises an interesting point of construction. What does it mean to have “spent a continuous period of 5 years lawfully in the UK”, which is required by paragraph 134 of the Immigration Rules in order to obtain indefinite leave to remain as a work permit holder?

The appellant, a citizen of Nigeria now aged 29, first came to this country thirteen years ago, at the age of 16, and after pursuing a course of studies from foundation through undergraduate to postgraduate level, he was recruited in 2004 to the ‘Global Graduate Development Programme’ of a large British company, IMI plc. A work permit was obtained for him, and for the next five years the appellant continued in approved work permit employment. Much of that period – in fact more than half – was spent abroad, posted by the company to branches of IMI in other countries, owing (as he puts it) to the ‘global nature’ of his job. But his earnings were all paid into his bank account in England, he paid UK tax and national insurance, he enrolled onto the company’s UK pension plan, and indeed bought a house of his own in Wolverhampton. Normally, if a person has had leave to remain as a work permit holder for five years, and is still required for the employment in question, he will qualify for indefinite leave to remain. But when the appellant made his application for indefinite leave in September 2009, after his five years, he was refused because, although he had been a work permit holder for five years, he had not “spent a continuous period of 5 years lawfully in the UK”, as required by paragraph 134(i) of HC 395.

The Reasons for Refusal Letter of 12 January 2010 also considers whether the appellant should be granted indefinite leave on the basis of ten years’ continuous lawful residence under paragraph 276B(i)(a) of HC 395, but finds that he is excluded from this category too because, under paragraph 276A(a)(v), continuity of residence is regarded as having been broken if the applicant “has spent a total of more than 18 months absent from the United Kingdom during the period in question.” The letter goes on to consider Article 8, but because of his long absences in Germany and the United States, does not accept that the appellant has established a private life in the United Kingdom.

When the appeal came before Immigration Judge McLachlan on 3 March 2010 she heard evidence from three witnesses, including two senior personnel from IMI plc. It will be pertinent to quote her summary of the evidence of one of those witnesses, set out at paragraph 9 of her determination.

“Mr Adcock is the Group Supply Chain director for IMI plc, joining the company in February 2009. He is aware of the progress made by the Appellant through the Graduate Development Programme and his current employment, achieved despite stiff competition, with the company as Global Logistics Manager. He referred to the Appellant’s outstanding reputation within the company and his value to the company as a member of the team. He confirmed that all candidates under the Global Graduate Scheme are expected to do temporary assignments abroad on behalf of the company. The company make all travel and accommodation arrangements in respect of work done by such graduates for and with subsidiary companies established abroad wholly or jointly promoted by IMI plc. Mr Adcock explained that if the Appellant had to leave the United Kingdom it would have a ‘pretty devastating’ effect upon the company work. Now that the Appellant had achieved his position within the company, which is on a permanent basis, it is expected that the Appellant’s travel outside the United Kingdom will become more focused and will occupy less time.”

The judge dismissed the appeal under paragraph 134 of the Rules. Although she accepted that the appellant had been working abroad at the behest of his employer, that he was employed by a British company and that he intended to make his home in this country, he had simply not spent a continuous period of five years in the United Kingdom. She went on to dismiss the appeal under the ‘long residence’ rule and under Article 8 as well.

The grounds of appeal to the Upper Tribunal, settled by Mr Pipe, deal mostly with Article 8, but also contend that the judge erred in her interpretation of ‘continuous residence’ which, unlike paragraph 276A, is not defined in paragraph 134. “The plain meaning of continuous residence in the context of a work permit holder”, says Mr Pipe, “should include work visits abroad on behalf of the Appellant’s employer.”

Leave to appeal was initially refused by a judge of the First-tier Tribunal, but on renewal to the Upper Tribunal leave was granted by Senior Immigration Judge Allen because he thought it arguable that “a continuous period of five years lawfully in the UK” could include time spent abroad at the direction of a work permit holder’s employer. When the matter came before us, Mr Pipe repeated his contention, while Mr Blundell argued that the plain wording of the rule would simply not bear the strained interpretation sought to be given to it. He acknowledged that if the words were taken literally, then any absence from the United Kingdom, even for one day, would break the continuity of the five-year period, and that the Secretary of State did in fact waive periods of absence abroad, such as for holidays, when calculating whether an applicant had spent “a continuous period” of five years in this country. But Mr Blundell had been unable to find anything in the Immigration Directorates’ Instructions as to how the discretion to waive breaks in the continuity of five years’ residence should be exercised. He did, on the other hand, give us copies of the IDIs on ‘Long Residence’, issued in April 2009 and dealing chiefly with the application of paragraphs 276A-D.

Having also heard submissions on Article 8, we reserved our determination. A striking feature of this case is the absence of anything much to guide us on the interpretation of paragraph 134(i). We suspect that the reason why Mr Blundell was unable to find anything on it among the Immigration Directorates’ Instructions is that the work permit scheme was replaced from 27 November 2008 by Tier 2 of the Points Based System, and that the guidance for Home Office caseworkers on how to implement the work permit scheme has since been deleted. It is not only on the UKBA website that one will now search in vain for guidance on the work permit scheme. Butterworth’s Immigration Law Service used to have a large section on work permit employment, including many decided cases, but this has now been entirely replaced by material on the Points Based System. The same is true for the current edition of Jackson & Warr. The only practitioner’s textbook which still has anything relevant to our purpose is the 7^th edition of Macdonald, which at 5.14 talks about those categories under the Immigration Rules – not only work permit holders, but businessmen, investors, innovators, retired persons of independent means, and so forth – in which people would qualify for indefinite leave after spending a continuous period of five years here in that capacity. There is a tantalizingly brief passage on continuity of residence.

“A person whose continuity of residence in the UK has been broken would only qualify for an extension of stay in the same capacity and not for settlement. The general practice is to disregard absences of three months in any one year, and, exceptionally, longer periods.”

It is not stated where the source of this ‘general practice’ is to be found. It may have been contained in IDIs which have now been deleted. There is a footnote, however, citing an old case of the Immigration Appeal Tribunal, Shahbakhti(16978), in which it was held that “20 months absence in four years was too long for a work permit holder.” Four years, rather than five, used to be the ‘continuous period’ needed for indefinite leave. Shahbakhtidoes not provide us with a precedent, however, as it does not concern an appellant whose periods of absence were spent working for his British employer while his base remained in this country, as is the case with this appellant.

The question of interpretation comes down to this. Paragraph 134(i) is not meant to be taken literally. If it were so taken, anyone who wanted to qualify for indefinite leave after five years would be unable to take even a day trip to France, or visit his own country on family matters. A comparison with paragraph 276B is illuminating. That rule caters for people in categories which do not normally lead to settlement. If such persons have managed to stay in the United Kingdom lawfully for ten years – and this does happen with students – then they can get indefinite leave. But what counts as breaks in the continuity of residence, disqualifying them from indefinite leave, is actually set out in the Rules themselves, at paragraph 276A(a), as well as being the subject of guidance in the Immigration Directorates’ Instructions on Long Residence. The reason for this, we apprehend, is that for categories which do not in themselves lead to settlement, the strength of connexion to the United Kingdom which merits the grant of indefinite leave is established by actual residence in the United Kingdom for most of the ten years, with a cap being put on the amount of time spent abroad.

As Mr Pipe pointed out, there is no such definition applying to rule 134, and as we have indicated, there is no longer any guidance as to how the Secretary of State might exercise her discretion. As a literal construction makes no sense, the rule has to be construed sensibly. It clearly imports a discretion – a discretion which can be exercised by us - as to how much absence can be disregarded in the calculation of a ‘continuous period’ of five years. Of relevance, in our view, will be the reason for the abscence, and the strength of the person’s ties to the United Kingdom, as shown in other ways. In the instant case, the appellant’s absences have been required of him by his employer, a British company, and he has at all times retained his base in the United Kingdom. He is domiciled here for tax purposes, and would seem to have established a domicile of choice for other purposes. He has clearly made this country his home. In those circumstances, we find that he does meet all the requirements of rule 134, and that IJ McLachlan erred in law by giving the rule a restrictive interpretation. She was right, however, to dismiss the appeal under paragraph 276B. As for Article 8, while we think that the appellant has a strong claim, it will not be necessary for us to reach a concluded view on that matter, as he succeeds under the Rules.

The appeal is allowed under paragraph 134 of the Immigration Rules.