MW (Paragraph 276 –long residence - ‘lawful residence’) Pakistan [2007] UKAIT  00008

Asylum and Immigration Tribunal                                    

THE IMMIGRATION ACTS

Heard at Field House		         Determination promulgated on: 05 January 2007
On 21 December 2006                                                                                    

Before

Senior Immigration Judge Gleeson 

Between

Appellant

and

The Secretary of State for the Home Department 
Respondent

Representation:

For the Appellant:		Mr H Rasheed of Counsel
Instructed by A M Law Associates
For the Respondent:	Mr B O'Leary
				Home Office Presenting Officer 

Paragraph 276B defines ‘lawful residence’ for the purpose of paragraph 276B (a).  Where, as here, an appellant has entered the United Kingdom unlawfully, and has never had any leave to enter or remain since that entry, he cannot be regarded as accruing ‘lawful residence’ whilst an application for leave to remain is pending.

DETERMINATION AND REASONS

1.	This is the reconsideration, with permission granted to the Secretary of State, of the determination of Immigration Judge Moore, who allowed the appellant's appeal against his refusal of leave to remain under paragraph 276B of HC 395 (as amended).  The Immigration Judge found as a fact that the appellant had been in the United Kingdom since 1993 (i.e. less than 14 years) but did not believe his allegation that he had originally entered lawfully. 
2.	Senior Immigration Judge Goldstein granted permission for reconsideration because he considered that the Immigration Judge had arguably erred in law in finding that the appellant could be treated as lawfully resident, having entered the United Kingdom unlawfully, because of his pending application to regularise his position.
3.	The appellant seeks the benefit of the 10-year long residence rule.  He does not now seek to come within the 14-year unlawful residence provisions.  In essence, the Secretary of State contends that as the appellant had not entered the United Kingdom lawfully, his residence here remained unlawful and the 10-year provision was not open to the Immigration Judge.
4.	for the Secretary of State, Mr O'Leary relied on the letter of refusal of 18 July 2006, save in relation to the erroneous statement that the Secretary of State has no record of the 1993 or 2001 applications for leave to remain made by the appellant.  That letter, and the notice of removal decision which accompany it, ‘stop the clock’ at July 2006 for the purpose of paragraph 276 and the long residence concession.
5.	In submissions for the appellant, Mr Rasheed argued that it was possible to accrue 10 years’ continuous lawful residence even where an appellant had entered the United Kingdom unlawfully.  The Immigration Judge had accepted as a fact that the appellant’s first settlement application had been pending since February 1993, and in addition, that he had made a subsequent application for indefinite leave to remain in the United Kingdom in January 2001.  
6.	Mr Rasheed was unable to produce any authority for the proposition that a person awaiting the outcome of any application, no matter how unlawful his entry, could be treated as lawfully in the United Kingdom while that application was pending.  He contended that further evidence was available (but not produced or the subject of a counter notice) and asked that the appeal be adjourned for second stage reconsideration. 
7.	I reserved my determination, which I now give. I now remind myself of the relevant provisions of the Immigration Rules and the task of the tribunal in considering reconsiderations.  In DK (Serbia) & Ors v Secretary of State for the Home Department [2006] EWCA Civ 1747, per Latham LJ  - 
“25.   Accordingly, as far as the scope of reconsideration is concerned, the Tribunal is entitled to approach it, and to give directions accordingly, on the basis that the reconsideration will first determine whether or not there are any identifiable errors of law and will then consider the effect of any such error or errors on the original decision. That assessment should prima facie take place on the basis of the findings of fact and the conclusions of the original Tribunal, save and in so far as they have been infected by the identified error or errors of law. If they have not been infected by any error or errors of law, the Tribunal should only re-visit them if there is new evidence or material which should be received in the interest of justice and which could affect those findings and conclusions or if there are other exceptional circumstances which justify reopening them…
30.	Whatever decision the Tribunal makes as to the procedure to be followed on reconsideration, the parties will have had their opportunity to make submissions. It seems to me, however, that the practice direction quite rightly starts from the assumption that the reconsideration should be dealt with at one hearing unless good reason is shown to the contrary. …If a party has not filed a rule 32 (2) notice, the Tribunal is entitled to assume that there is no further evidence or material it wishes to put before the Tribunal for the purposes of the reconsideration. And if he has not filed a reply, the Tribunal is entitled to assume that the party other than the one on whose application the reconsideration was ordered does not wish to rely on any arguments or material other than those upon which the original decision was based.”
8.	Absent any respondent’s notice, or indication of what ‘further evidence’ the appellant has, there is therefore no need for me to adjourn for it to be considered. The burden is on the appellant and he has not discharged it.  the question therefore is a narrow one:  can the appellant’s residence while these applications were pending (although we do not know on what basis) amount to ‘lawful residence’ entitling him to the benefit of the 10-year provision in paragraph 276B.  So far as relevant, the long residence requirement of the Immigration Rules is as follows –

“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)(a) he has had at least 10 years continuous lawful residence in the United Kingdom; …and  
(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)	 previous criminal record and the nature of any offence of which the person has been convicted; and 
(f)	compassionate circumstances; and 
(g)	any representations received on the person’s behalf.”
9.	There was no documentary evidence of the 1993 application, but the Presenting Officer acknowledged that the application had been made.  The appellant was able to produce an acknowledgment of the second application.  The letter of refusal of 18 July 2006 contended that there had been no such applications but the Immigration Judge accepted that there had, on the basis of the Home Office Presenting Officer’s concession and the acknowledgment from the Secretary of State in the appellant’s bundle.  
10.	If the 1993 application existed, then clearly there has been a very long delay in processing it.  It is not entirely clear what was the basis of that application.  What is clear is that it was not an application for asylum (though that was what the appellant asked his solicitors to prepare) as something to do with one of his passport stamps appeared to his solicitors to give him the right to immediately claim indefinite leave to remain in the United Kingdom.  It is a pity that we do not know why.  Similarly, the basis of the 2001 application for indefinite leave to remain in the United Kingdom remains unclear. 
11.	The delay alone cannot avail the appellant.  In  HB and others  (Ethopia) [2006] EWCA Civ 1713, Buxton LJ summarised the present law on delay and said, in relation to delay in immigration matters –
“24. (v) Where the applicant has no potential rights under specifically immigration law, and therefore has to rely on his rights under article 8(1), delay in dealing with a previous claim for asylum will be a relevant factor under article 8(2), but it must have very substantial effects if it is to influence the outcome [Strbac at §25].”
12.	The question is whether the appellant’s mere presence in the United Kingdom with an application of some sort for indefinite leave to remain pending is enough for ‘lawful residence’.  The facts accepted are that the appellant was in the United Kingdom in February 2003 and thus has over 13 years, but less than 14 years’ residence for the purpose of paragraph 276B. The Respondent’s letter of refusal, by reason of the notice of removal decision accompanying it, ‘stops the clock’ at July 2006 for the purpose of paragraph 276 and the long residence concession.  
13.	The definition of ‘lawfully resident’ for the purpose of rule 276B is set out at paragraph 276A(b) –
“276A.   For the purposes of paragraphs 276B to 276E: 
… (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 where leave to enter or remain is subsequently 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."
14.	The appellant cannot comply with subparagraphs (i), (ii) or (iii) of that paragraph, giving the words their natural meaning, and Mr Rasheed has not produced any authority for the proposition that these words should be given any interpretation other than their natural meaning.  Accordingly, I find that the appellant cannot be regarded as ever having been ‘lawfully resident’ and that it was not open to the Immigration Judge to proceed to consider the public interest and other matters pertaining to the proportionality of allowing him to remain:  the appellant simply does not come within the long residence concession at all, and his appeal ought to have been dismissed.  I substitute a decision dismissing the appeal.

DECISION
 
The original Tribunal made a material error of law.

The following decision is accordingly substituted:
1.	The appeal under the Immigration Rules is dismissed, and
2.	The appeal is dismissed on human rights grounds.

Signed                                                   		     Dated:   24 January 2007

Senior Immigration Judge Gleeson