Lisa’s Law’s immigration supervisor, Mahfuz Ahmed, has recently been successful in an appeal of significant importance to our client. The case shows that a well-prepared appeal can lead to a fantastic result, despite our client not meeting the stringent criteria set out by the Home Office for indefinite leave to remain applications.
Background
Our client is a Hong Kong national who came to the UK in 2010, aged thirteen as a child student. He attended a boarding school here in the UK until the age of 18. Thereafter, he obtained a student visa to study his bachelor’s degree and following 10 years of being in the UK as a student he had accumulated 10 years lawful residence in the UK.
During our client’s studies here in the UK, he would return to Hong Kong on all term holidays to spend this time with his family. This meant that over the past 10 years, our client had spent almost 900 days abroad over the past 10 years.
Our instruction
The client approached us and instructed us to make an application for indefinite leave to remain based on 10 years lawful residence.
We informed the client that the requirements for indefinite leave to remain is that absences from the UK in the last 10 years cannot exceed 540 days and therefore the application would be refused, however we would argue his case at appeal on the basis that a refusal would breach our client’s rights under the European Convention of Human Rights and that absences should be waived on compassionate grounds.
As expected, the application for indefinite leave to remain was refused. The matter proceeded to appeal.
The Appeal
The Appeal was heard by the First-tier Tribunal, and we had no doubt that there would be great difficulty in persuading a judge that days spent outside the UK should be waived.
The Secretary of State argued that the requirements were clear, an applicant cannot spend more than 540 days outside the UK and there is no reason to depart from that. They argued that the decision ensures the maintenance of immigration control which is in the public interest.
Our arguments were as follows:
1. Our client over the past 10 years, coming to the UK at the age of 13 had built a private life here in the United Kingdom. He had become accustomed to life here in the UK.
2. Our client did not make this application for an economic advantage but solely because of his private life here in the UK.
3. The time spent outside of the UK between the ages of 13 and 18 should be disregarded as the client had no control and was simply following his parent’s orders.
4. The Secretary of State has historically granted settlement to people who have lived here for fourteen years, lawfully and unlawfully and so it is clear that she has in the past recognized that private life can be established over such a lengthy period. Our client been here in the UK now for 12 years.
5. The general and political landscape of Hong Kong has changed over the past 12 years and therefore the client would not be able to reintegrate.
The judge considered our arguments and agreed. He stated that the refusal of our client’s application did breach our client’s rights to have a private life under article 8 of the ECHR. The judge also agreed that cumulatively when considering the case as a whole, the appeal was both exceptional and compelling and outweighed the public interest in the client’s removal.
Accordingly, the appeal was allowed.
We prepared the appeal with great care, formulating what we believed to be key arguments that was not considered previously. The client was robustly represented at the appeal hearing and the appeal was successful.
Our Comments
We are extremely pleased with the result as our client who came to the UK at 13 can now stay in the UK indefinitely.
This case shows that those who do not meet immigration requirements due to compassionate or exceptional reasons should not be discouraged from proceeding with their case.
Should you require assistance in making an application for indefinite leave to remain, then do get in touch.
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