Ten years’ continuous lawful residence - Upper Tribunal puts it straight

11 March 2019
It sometimes happens that a case comes before the First-Tier Immigration Tribunal but the judge decides that the Tribunal has no legal jurisdiction to hear it. So everybody gets sent home and the case does not get heard.

There could be various reasons for this, some of them quite technical. In the recent case of “OA and others” the judge at the First-Tier Tribunal thought that the crucial issue - ie whether the appellants could succeed on the basis of ten years’ continuous lawful residence - was not an issue properly before him, because the appellants had originally applied to the Home Office for leave on a different basis, and they had only acquired ten years’ residence whilst patiently waiting for the appeal to be heard.

In the more standard course of events a migrant can apply to the Home Office for indefinite leave to remain (ie settlement) on the basis of ten years’ continuous lawful residence, but in this case the facts were slightly different. However, waiting times for appeal hearings these days can be many months, and this sort of situation is thus very possible.

So what is the legal position? The judge thought that he could not deal with the ten years’ issue and he could not hear the case. This must have come as a shock to the appellants and they appealed to the Upper Tribunal.

The Upper Tribunal pointed out the unfortunate fact that the judge at the First-Tier Tribunal had been relying on legislation that had been repealed. He could have and should have considered the “new matter” of ten years’ continuous residence.

One of the most striking things about UK immigration law is the speed with which it changes. Rules, laws and policies change frequently, and immigration practitioners - and this includes judges - need to be fully up-to-date.

In any event, the Upper Tribunal adopted a helpful position. They could have sent the case back to the First-Tier Tribunal for it to re-take the decision, but instead they decided to make a new decision themselves, and in the process they provided some useful legal interpretation. Upper Tribunal decisions are binding on the First-Tier Tribunal, and thus the decision is likely to have impact in future appeal cases.

As the Upper Tribunal pointed out, the appeals structure is in some aspects now rather complicated. An appeal such as that of “OA and others” is heard on the basis of whether or not the migrants’ human rights have been violated. If they have then the migrants should succeed and if they haven’t then they should not.

It sounds simple enough, but it isn’t. The new basis of the appellants’ position was that they had accrued ten years’ continuous lawful residence under the UK immigration rules. How can an immigration judge mesh this together with human rights principles?

The relevant immigration rule provides the mathematical criteria. As immigration rules go it is somewhat straightforward. But human rights principles come from one international treaty, at least one Act of Parliament, and millions upon millions of words of caselaw decisions, both from the British courts and the European Court of Human Rights. Human rights consideration involves concepts such as “proportionality”, “balance of interests” and so on and it’s all very complicated.

There is a legal paradox here but the Upper Tribunal provided some clear thinking, and their decision reflected the principles expressed in some previous Upper Tribunal decisions.

If there is an immigration rules matter and a human rights matter in the same case the migrants’ position under the immigration rules may have a strong impact on their situation under human rights principles. If the migrants succeed under the relevant immigration rule then this may enable them to succeed under human rights principles as well.

And so it was in this case. The Upper Tribunal said that where a judge at the First-Tier Tribunal “concludes that the ten years’ requirement is satisfied and there is nothing to indicate an application for indefinite leave to remain … would be likely to be rejected by the Secretary of State, the judge should allow … [the] human rights appeal, unless the judge is satisfied there is a discrete public interest factor which would still make ... removal proportionate”.

But the Upper Tribunal also made clear that, in such a case, the Home Office was not obliged to grant settlement to the successful appellants. Because the leave was being granted under human rights principles then the leave granted should be the same as the type of leave that would be granted under a human rights case - ie a grant of limited leave.

But this was still a very good result for OA and others, and it is likely to be helpful to appellants in the future who have such a mixed immigration rules/human rights case. But this area of law is complex and you are well advised to instruct a good lawyer if you find yourself embroiled in it.


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