In today’s article, we look at a recent case, R (on the application of AM) v Secretary of State for the Home Department. This case concerns a person that had been living in the UK for over 22 years but had continuously provided false identities as well as convictions in the UK.
A person who has been living in the UK continuously for over 20 years can make an application for leave to remain under paragraph 276ADE of the Immigration Rules. The rules indicate that leave to remain may be granted to a long residence applicant if he or she has lived continuously in the UK:
- for at least 20 years; or
- for at least 7 years (and the applicant is under 18 years of age); or
- for at least half of his life (and the applicant is aged between 18 and 25 years); or
- for less than 20 years (and the applicant has no ties to the country to which he or she would have to go if required to leave the UK).
R (on the application of AM) v Secretary of State for the Home Department
AM was a Belarus national who came to the United Kingdom in 1998. He made a number of applications over the past 22 years where he lied about his identity and nationality. He had also been convicted of a number of offences.
The Secretary of State had determined that he should be deported however due to the unclear circumstances regarding AM’s identity and nationality, it was not possible to deport him not was there a realistic prospect of him being deported in the near future. This left AM in a state of ‘limbo’.
AM issued Judicial Review proceedings in the Upper Tribunal against the Secretary of State. The Upper Tribunal held that despite AM’s conduct over the last 22 years, the refusal to grant AM leave had infringed his rights under article 8 of the European Convention on Human Rights which reads:
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The Secretary of State appealed the decision to the Court of Appeal.
The Court of Appeal
The Court of Appeal held that the Upper Tribunal had correctly applied the law. The Court of Appeal declared that the Upper Tribunal had paid regard to the following:
- The public interest in the maintenance of effective immigration control
- AM’s own responsibility for his ‘limbo’ situation
- AM’s criminal convictions and the public interest in his removal
- AM’s vulnerabilities
- The prospect of removal was remote
Considering the above the Court of Appeal held that after considering the above, the Upper Tribunal was not wrong and that the Tribunal was entitled to find a that there was an infringement of AM’s rights under art 8 of the ECHR.
Accordingly, the appeal was dismissed.
Our comments
The case shows that the Secretary of State must seriously consider a person’s fundamental rights under the European Convention on Human Rights. Although providing false identities and nationalities is certainly not condoned, we are pleased that the Tribunal and the Court of Appeal recognised the length of time that he had been in the UK and the impact that it has had on his private life.
Should you require assistance in making a long residency application on the basis of 20 years continued residence, then please do get in touch.
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