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Home Office concedes on the meaning of "Residence" in relation to Paragraph 276B of the Rules

Written by Stephen Vokes

The Appellant was a foreign national student who had studied in the UK for around 9 and a half years. He achieved his doctorate. He then returned to his home country in Africa. However after a short break in his home country, he then entered as a visitor to attend his graduation ceremony. However after entering the country he changed his mind about returning home and applied for indefinite leave to remain (ILR) on the basis of being lawfully present in the UK for 10 years. The Home Office refused his application on the basis that he had not completed his 10 years residence at the date of their decision. The Appellant appealed to the FTT, who upheld his appeal on the basis;

* at the date of the hearing due to extant leave under section 3C of the 1971 Act the Appellant had completed 10 years residence.
* the Appellant had a genuine change of heart, and although his original intention was merely to visit, he had changed his mind whilst present in the UK.

Now the Secretary of State appealed, on the principal ground that his leave as a visitor did not come within the meaning of “residence” for the purposes of Paragraph 276B. In short he was admitted on a temporary basis and no provision was made for “switching” category. Permission to appeal was granted by UTJ Allen on this point.

However the difficulty with this legal argument is two fold;

1) “continuous residence” is defined in Paragraph 276A (a) as having existing leave to enter or remain; no category is specified.
2) this also appears in the Home Office Guidance and moreover the Guidance states that after 10 years lawful residence has been achieved, an Applicant can enter any lawful basis, and then claim ILR.

The thrust is that only lawful leave to enter is needed is relation to this Rule, and the demand for “residence”.

The Senior Presenting Officer after the UT hearing (which had been adjourned for lack of Tribunal time) sought guidance (from the Policy Directorate one presumes), and then proceeded to withdraw the appeal, conceding that the Appellant’s leave to enter was no basis in refusing his application under the 10 year Rule. Therefore it was accepted that his period in the UK as a visitor did count for the definition of “residence” for the purposes of Paragraph 276B of the Rules.

Download No.8 Immigration Seminar notes

No.8 Chambers Immigration Seminar 2016

This year's No.8 Chambers' Immigration Seminar is on Wednesday 8th June 2016 at the Council Chamber Birmingham Council House (map reference here). The event will take place at 5:00pm until 7:00pm (2 hours CPD).

The only way to book places is by emailing This email address is being protected from spambots. You need JavaScript enabled to view it. with delegates' names and your firm's details.

Please note - this event is open to members of solicitors and OISC firms.

Chair: Stephen Vokes

Speakers & Topics:

  • Ruth Manning: A Practitioner's Guide to the Immigration Bill 2015/16
  • Alexander Barnfield: Illegal migrants: passing the buck to employers and landlords
  • Adam Pipe: What's new pussycat? A brief update on the latest case law

The event is FREE but you will need to download your own notes before the event. The download links are below:

A Practitioner's Guide to the Immigration Bill 2015/16

Illegal migrants: passing the buck to employers and landlords

What's new pussycat? A brief update on the latest case law

Judicial Review Notes - Stephen Vokes

Adam Pipe Immigration Law Seminars in Birmingham and Manchester. 3 CPD Hours

Immigration Law - The Recent Changes & Upcoming Developments

Introduction

The past 12 months have seen a number of important developments in immigration law.

This course will provide a comprehensive update of the key changes and will address the important issues facing practitioners working in this area answering questions such as:

  • What is the impact of recent statutory changes?
  • What are the most important case law developments over the last year?
  • What is the current state of the law?
  • Delegates will receive an essential update of case law, statute, rules and policy equipping them with an overview of the latest developments ensuring up to date advice can be provided to clients. This course will also briefly cover the new appeal regime for students and foreign criminals.

Full Seminar details here