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Time spent in the UK as a visitor counts as 'residence' for ILR

Written by
Asad Ali Khan
Date of Publication:
23 July 2021

R (Mungur) v Secretary of State for the Home Department [2021] EWCA Civ 1076 (15 July 2021)

On the important subject of indefinite leave to remain (ILR) on the grounds of 10 years' continuous residence, the Court of Appeal has held that the SSHD had erred in refusing an ILR application made by Mr Chandra Mungur – a citizen of Mauritius – because it could not be said that he had "left the United Kingdom in circumstances in which he had no reasonable expectation at the time of leaving that he would lawfully be able to return" during the period relied upon as 10 years' continuous residence. While Mr Mungur had left the UK in 2001 following expiry of his visit visa, he had done so with the intention and expectation of lawfully returning as soon as possible under a student visa. Mr Mungur had obtained a visitor visa valid from 22 March 2001 to 22 September 2001. He entered the UK as a visitor on 16 April 2001 and left on 1 September 2001 "to return to Mauritius to apply for Entry Clearance as a student". That application was granted on 25 September 2001 and was valid until 25 September 2003. On 5 October 2001, he entered the UK again and by a succession of applications he applied for and was granted further leave to remain successively first as a student and then as a work permit holder. He remained lawfully in the UK from 25 September 2003 until 13 July 2011. He overstayed for 1,947 days when his leave to remain expired on 13 July 2011 until 10 February 2016.

Mr Mungur was granted further leave to remain on human rights grounds until 8 May 2019. He applied for ILR on the grounds of 10 years' continuous residence on 30 May 2019. On 20 September 2019, the decision-maker refused the application on the ground that during the period relied upon by Mr Mungur as continuous residence, he had "left the UK in circumstances in which he had no reasonable expectation at the time of leaving that he would lawfully be able to return" and thus could not satisfy the requirements of the paragraph 276A(1)(a) of the Immigration Rules. In addition to the first ground of refusal, the decision-maker further said that he had been in the past an overstayer and therefore could not satisfy the requirements of paragraph 276B(v). Aggrieved, he challenged the lawfulness of the refusal by bringing judicial review proceedings. He said that when he left the UK on 1 September 2001, he had a reasonable expectation that he would lawfully be able to return, which satisfied the requirements of paragraph 276A(a)(iii) and that, thus, his absence from 1 September to 5 October 2001 did not break the period of continuous residence which had to be taken as starting on 16 April 2001. He accepted he overstayed for 1,947 days but he argued that the Home Office was wrong to decide that he did not meet the requirements of paragraph 276B(v). The government abandoned reliance on this issue and conceded that his overstaying was not a bar to ILR because he was not a current overstayer and not currently in breach of the Immigration Rules and paragraph 276B(v), "the applicant must not be in the UK in breach of immigration laws", did not apply.

Context and Hoque

Notably Mr Mungur submitted that his presence in the UK from 16 April 2001 to 16 April 2011 had been conceded to be "residence" for the purposes of paragraph 276B(i) and that it was lawful, first by virtue of his visit visa and then his student visa. Since he was not absent from the UK for six months or more at any time during that period, his residence was also continuous. He submitted he was not debarred by paragraph 276A(iii) because, when he left the UK on 1 September 2001, he had a reasonable expectation that he would be lawfully able to return as a student. The "breach of immigration laws" is defined in the Immigration Rules (under paragraph 6) where the person is an overstayer; is an illegal entrant; is in breach of a condition of their permission; or used deception in relation to their most recent application for entry clearance or permission; and "previously breached immigration laws" – a person previously breached immigration laws if they overstayed or used deception in relation to a previous application for entry clearance or permission. The ILR application was made 22 days after the expiry of his leave but no point was taken or arose from that period. In the light of the abandonment of the paragraph 267B(v) issue, it was unnecessary for the court to set out the terms of paragraph 39E and address concerns connected therewith.

Notably, paragraph 276B was the subject of a closely reasoned analysis by Underhill LJ and decision (majority) in Hoque v SSHD [2020] EWCA Civ 1357, see here, where the court subdivided Paragraph 276B(v) into three elements: [A] the applicant must not be in the UK in breach of immigration laws, [B] except that, where paragraph 39E applies, any current period of overstaying will be disregarded, [C] Any previous period of overstaying in between periods of leave will also be disregarded where – (a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or (b) the further application was made on or after 24 November 2016 and paragraph 39E applied. In Hoque, the Court of Appeal criticised the rules for their "labyrinthine structure" and "idiosyncratic drafting" and "confused language". The two kinds of overstaying in [B] (current overstaying) and [C] (previous overstaying between periods of leave) are called "open-ended" and "book-ended" overstaying.

The Court of Appeal's decision was that Elements [A] and [B] related to the position at the date of the decision whether to grant ILR. They do not affect the question to be answered under paragraph 276B(i)(a). Element [C] however, is to be read as a qualifying paragraph 276B(i)(a), the court's conclusion being that an error of drafting has occurred and it is in the wrong place. The only context in which previous periods of overstaying in between periods of leave – and thus also a provision that they be disregarded – would matter is the requirement of ten years' continuous lawful residence, which would of course otherwise be broken by a period of overstaying between periods of leave. Addressing the very same point, namely that Elements [A] and [B] are addressing current overstaying and do not cover past overstaying, Underhill LJ said the requirement is framed in the present tense—"must not be in the UK in breach of immigration laws"—and the first disregard refers to "current overstaying". The court did not think that it was possible to read it as meaning "must not at any time in the ten-year period relied on have been in the UK in breach of immigration laws".

The long residence guidance on 10 years' continuous lawful residence that was current at the material time said that once an applicant has built up a period of 10 years' continuous lawful residence, there is no limit on the length of time afterwards when they can apply. It said that if the applicant had existing leave to enter or remain when they left and returned to the UK, the existing leave does not have to be in the same category on departure and return. Moreover, continuous residence is not broken as the applicant had valid leave both when they left and returned to the UK, for e.g. an applicant can leave the UK as a student and return with leave as a spouse of a settled person. The SSHD anchored her arguments on the first issue by reference to the well established principles about how to approach the construction of the Immigration Rules which involves looking at language of the rule, construed against the relevant background. The Immigration Rules must be considered as a whole in light of the function which they serve in the administration of policy and must not construed with all the strictness applicable to the construction of a statue or a statutory instrument but, instead, sensibly, according to the natural and ordinary meaning of the words used. The rules are the SSHD's rules. Her intention is germane but that intention is to be discerned objectively from the language used, not divined by reference to supposed policy considerations. The SSHD's intention is still less to be discovered, in line with the ruling in Mahad v ECO [2009] UKSC 16, from the Immigration Directorates' Instructions (IDIs) issued intermittently to guide immigration officers in their application of the rules.

The Court of Appeal

Nicola Davies and Stuart-Smith LJJ and Sir Patrick Elias allowed Mr Mungur's appeal. Stuart-Smith LJ gave the only judgment and Nicola Davies and Sir Patrick Elias agreed with the result.

Stuart-Smith LJ noted that neither party was able to identify any provision of the rules or the official guidance or any authority that either says or implies that the provisions and guidance involved in the case were not entirely general or that leave to enter on a visitor's visa or lawful presence in the UK on a visit visa should be treated differently or excluded from their ambit and application. To the contrary, the SSHD accepted that the provisions and guidance are framed in terms that cover clearance provided by a visitor's visa and any presence in the UK with the benefit of her clearance. The court agreed and observed that in addition, the SSHD accepted that time spent in the UK with the benefit of a visit visa counts as "residence" under the rules, including for the purposes of calculating continuous residence.

On the first issue, Stuart-Smith LJ held that the Immigration Rules neither expressly nor impliedly excluded from the scope of paragraph 276A(a)(iii) those people who had been present on a visitor's visa. All visas short of ILR were temporary and required the person to leave the UK on their expiry. The SSHD said that, although "residence" was conceded and the lawfulness of Mr Mungur's residence when present between 16 April 2001 and 13 July 2011 was not disputed, he could have had no reasonable expectation of being able to return when he left on 1 September 2001. She submitted that the temporary nature of the residence as a visitor meant that it fell to be excluded under paragraph 276A(a)(iii) and that it was inconceivable that in formulating this particular rule she would have intended an outcome whereby a person is able to include his residence pursuant to a visitor visa in the calculation of 10 years residence to obtain ILR. Albeit in vain, the SSHD submitted that recognising that paragraph 276A(a)(iii) is a statement of her administrative policy, and reading it in context, showed that it intends to avoid the inclusion of residence as a visitor.

The SSHD maintained in pre-action correspondence that as Mr Mungur's visit visa had been granted a visitor visa for 6 months or less, his visa would have lapsed when he left the UK on 1 September 2001. In the light of articles 4(1) and 4(2) of the Immigration (Leave to Enter and Remain) Order 2000 and the fact that the visit visa was expressed to be for multiple visits during the 6 month period of its validity, the court found that to be "an untenable assertion". Indeed, the SSHD conceded the point without much resistance and Stuart-Smith LJ held that:

26. … In my judgment, discussion of these factual permutations is not ultimately of assistance when attempting to interpret paragraph 276A(a)(iii) or 276B(i)(a). The salient facts are that his visitor's visa was expressed to be for multiple visits during the period of 6 months from 22 March to 22 September 2001. It did not "lapse" on 1 September 2001 as had been asserted in the response to the PAP letter.

Stuart-Smith LJ, however, acknowledged that instinctually there is or may be a qualitative difference between the nature of a person's presence with the benefit of a visit visa and in other circumstances. In everyday language, one would not naturally refer to a person's presence in a country on a "visit" (or a succession of visits) as "residence" or as "living in" the country being visited. It would be more natural to refer to "staying in" the country or simply "visiting" it. In view of the concession, this point was not explored and the court assumed that a visitor lawfully present can be said to be "resident" within the meaning of the relevant rules. Examined in isolation the rules did not expressly or impliedly exclude people who have been present on a visitor's visa from paragraph 276A(a)(iii). Any point about the temporary nature of a visitor's visa could not justify reading – or writing – into the rules that a person who has been present with the benefit of a visit visa cannot have a reasonable expectation that he would lawfully be able to return, particularly when it was not part of the SSHD's case that it must be assumed that the application to return will be on the same basis as the previous residence. The long residence guidance at the material time showed the existing leave did not have to be in the same category on departure and return. These points led Stuart-Smith LJ to hold that:

29. There are four reasons why the temporary nature of a visitor's visa cannot justify the conclusion for which the respondent contends. First, all visas short of ILR are, to a greater or lesser extent, temporary and require the person to leave the United Kingdom on their expiry. Second, this argument is an overt attempt to deflect the court from discerning the respondent's intention objectively from the language used and, instead, to persuade the court to divine it from supposed policy considerations. Third, the policy consideration being urged upon the court is that the respondent cannot have intended residence under a visitor's visa to count towards continuous residence for the purposes of obtaining ILR; or, expressed differently, that a visitor's expectation of being able to return with the benefit of a different form of clearance (in this case a student visa) cannot be reasonable. The short answer is that there is no sign of that policy consideration in the Rules. Fourth, paragraph 276A(a)(iii) is concerned with the person's expectation for the future, not the nature of any past lawful residence. In that respect, there is nothing in the fact of his having prior clearance as a visitor that affects the reasonableness or otherwise of his expectation that he will satisfy the criteria for a student's visa. As events have shown, his expectation was objectively reasonable because he satisfied the criteria and was granted the student visa. There is nothing in the facts of this case to suggest that the granting of his student visa was an aberration or not reasonably to be expected.

The SSHD argued that paragraph 276A(a)(iii) must have the effect of excluding persons whose first period of residence is pursuant to a visitor's visa because otherwise it is of no effect. But the court rejected that submission for four reasons; it is not what the paragraph said; it assumes a logic and coherence that is not apparent in the drafting of the paragraph as a whole; if the intended effect was to exclude periods of lawful residence pursuant to a visit visa from the calculation of continuous residence, seeking to achieve it by the words used in the paragraph 276A(a)(iii) was bizarre; and finally the submission was without a good legal premise.

The critical question for Issue 1 was whether Mr Mungur had a reasonable expectation at the time of leaving that he would lawfully be able to return. Stuart-Smith LJ held finding in his favour that:

31. … The answer depends not upon the nature of his previous residence but on whether he had a reasonable expectation of being granted leave to return. The respondent does not and could not submit that the fact of his having held a visitor's visa is of itself capable of prejudicing his application for a student's visa. Therefore, the only relevant information before the court is that the appellant was granted his student's visa, from which it may be deduced that he satisfied the criteria for that grant. He had to leave the United Kingdom in order to make his application for his student's visa; and there is no suggestion that his circumstances changed such that he would not have qualified for a student's visa on 1 September 2001 but did qualify when he made his application shortly after. On this basis, I conclude that his expectation on 1 September 2001 that he would be granted the student visa for which he was going to apply was reasonable.

The court found that the SSHD's abandoning of Issue 2 was correct in the light of Hoque. It was wrong of the SSHD to contend that Mr Mungur's application for ILR was barred by his earlier overstaying. That was wrong because he was not a current overstayer. He was therefore not presently in the UK in breach of immigration laws and was not caught by Element A of paragraph 276B(v). The decision-maker's reliance upon Element C was misconceived as there was no need for Mr Mungur to plug any gaps between periods of leave in order to establish his 10 years' continuous residence between 16 April 2001 and 16 April 2011. Therefore, the court allowed the appeal and set aside the refusal of ILR.

Comment

Mr Mungur and his legal team must be truly delighted with the result in these proceedings and that is especially so given that at first instance UTJ Gill certified the application to be totally without merit when refusing his application for permission to apply for judicial review of the decision to refuse him ILR under paragraph 276B of the Immigration Rules.

This case is a reminder, on the general level, that only the strong survive in immigration litigation and the government was no doubt hedging its bets by hoping that Mr Mungur would give up the battle and take "no" for an answer. But it is plain that his persistence helped him prevail over the SSHD and the court was clear that time spent in the UK as a visitor amounted to "residence" and the fact that Mr Mungur overstayed for 1,947 days between July 2011 and February 2016 made no difference to his ILR application which was based on continuous residence which started on 16 April 2001 and hence his absence from the UK between 1 September and 5 October 2001 did not break the continuity of residence from 16 April 2001 to 13 July 2011. A start date of 5 October 2001 would have left him in the doldrums as on that analysis, which neatly avoided looking back to 16 April 2001 he would have had only had nine years and nine months of continuous lawful residence and the Home Office would have been able to short-change him his ILR which is infamously their favourite pastime. The big lesson for ILR applicants stuck in a similar situation is not to allow the government to short-change them and instead they are well advised to do a Mungur in order to force the Home Office to grant them ILR.