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.