We are pleased to have been successful in an appeal which has led to our client obtaining leave to remain on the basis that he has a partner settled in the UK. This is despite our client making an application within the UK and therefore not satisfying the eligibility requirement of making an application outside of the UK.

 

Background

 

But first, a bit of background to the case in question.

 

Our client is a Chinese national who initially came to the United Kingdom illegally in 2007. He married his wife, a British national, in 2018.

 

In 2020, our client sadly contracted a form of liver cancer. He underwent a medical trial to assess new medication and on 22^nd June 2021 underwent major surgery.

 

Later that year, our client made an application for leave to remain with his wife. The application was refused as the client failed to meet the eligibility requirement, that is to say making an application abroad. The Home Office further stated that there were no insurmountable obstacles for both he and his wife to continue their relationship in China and that there were no exceptional circumstances to render the refusal unjustifiably harsh.

 

We subsequently appealed the decision.

 

The Appeal

 

The appeal we submitted was heard by the First-tier Tribunal. The Secretary of State for the Home Department (SSHD) relied on their reasons given in the refusal of the application. They further added that the client can simply leave the clinical trial and return to China to make an application for entry clearance.

 

Our key arguments were as follows:

 

1. Although the SSHD’s responsibility of enforcing effective immigration control is in the public interest, similarly our client’s involvement in a clinical trial for the treatment of liver cancer was similarly on the interest of the public.

 

2. We argued that during his current medical state, should he be forced to make an application from abroad, it would result in him being away from his wife who he has relied on heavily since his health has deteriorated. We argued that this was a clear violation of his rights under the European Convention of Human Rights.

 

3. Any air travel would put our client at risk of COVID-19 infection which could cause terrible consequences given his current condition.

 

The case was reserved and after a few weeks, we received a decision allowing the appeal.

 

Our Comments

 

This was an appeal in which we were determined to see a successful outcome as we could see the severe effect that it would have on our client’s condition should he be forced to return to China.

 

The refusal letter by the Home Office had a lack of empathy and understanding when making a decision and we are both pleased and unsurprised that the Tribunal would not share their view.

 

We wish our client all the best for the future.

 

Have questions about this article? Get in touch today!

 

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

 

Email us on info@lisaslaw.co.uk.

 

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

 

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Written by Xijia Xie

 

Imagine this: you are on your tenth year in the UK, thinking you will soon be eligible for settlement based on your long lawful residence. Your personal plans are lining up, but it all depends on the arrival of that one plastic card. However, right before your submission, you come to the shocking realisation that your ten-year residence might have been broken by a long holiday outside the UK in 2021.  If this looks like something you too are worried about, please read on.

 

A Brief Look at the Law

 

What you should understand is a concept called continual residence. This is a requirement that can be seen in the criteria for a number of settlement applications. In essence, it means that you must “NOT have been outside the UK for more than 180 days in any 12-month period“, according to section CR 2.1 of Immigration Rules Appendix Continuous Residence (“Appendix CR” hereafter).

 

Please be aware of the two key points here: one, the 180 days can be distributed to several trips – it is the total days of your absence from the UK. And two, it is ANY 12-month period – it might not start from 1st January and end on 31st December but can be ANY period of 12 months that sees the most absenteeism.

 

How are the days calculated?

 

Let’s apply the rule in an imagined case study. Let’s say for example that your friend John came to the UK in 2017 and has never travelled anywhere ever since. Now John plans to travel abroad on 1st May 2022: how can he avoid breaking the continual residence?

 

The first thing you need to know is that only full days outside the UK would be counted for this purpose, according to Indefinite leave to remain: calculating continuous period in UK Version 22.0, p 9. So, the first day of his absence will be 2nd May, and his 180th full day outside the UK would be 29th October 2022.

 

It is probably not difficult to see that in order to keep his continual residence, John must come back to the UK before 23:59 on 30th October 2022. However, even if John comes back to the UK before that point (say, 31st July 2022) but subsequently leaves the UK on 1st January 2023 and comes back again on 3rd April 2023, his continual residence is still broken. Because, although his trip in 2022 is only 90 days absent and the one in the next calendar year 91, in the 12-month period from 1st May 2022, he will be outside the UK for a total of 181 days.

 

Exceptions in calculation

 

As with all rules in law, the restriction comes with a number of exceptions. The first of which is provided by the next section in the Rules. CR 2.2 says:

 

For any absences from the UK with permission granted under the rules in place before 11th January 2018, the applicant must not have been outside the UK for more than 180 days during any consecutive 12-month period, ending on the same date of the year as the date of the application for settlement.

 

The key difference here is that, instead of looking at ANY 12-month period or any calendar year (ie 1st January to 31st December), if eligible, this exception would reset the clock every year on the date in which the application was submitted. Back to John. Let’s say his visa was a visa granted in 2017 (which means it was a decision made by the Home Office on a rule that existed before 11th January 2018, which means the exception applies). Now, John plans to make his settlement application on 1st August 2023, which requires six years’ continual residence (fictional rule). Will John be eligible if he makes the 90-day and 91-day trips as mentioned above? The answer is no, because although there are 181 days in total in ANY 12-month period, for John, his absence records are made fresh every 1st August, the date of his  application.

 

In addition to CR 2.2, the Rules also specify several other exceptions. These include exceptional humanitarian circumstance, recognised research activities, and, as CR 2.3 (b) provides, “travel disruption due to natural disaster, military conflict or pandemic”. Please be noted that travel difficulty is NOT travel impossibility or travel disruption. It is not yet clear to what extent would the Home Office be willing to accept ground in CR 2.3 (b), but it is very questionable whether it could be used in situations where the applicant postpones his or her travel plan back to the UK for a few months or years simply due to overpriced airfare.

 

 

Is the 10-year Lawful Residence Route subject to continual residence?

 

The short answer is: yes, but it is a different calculation method.

 

Appendix CR ONLY applies to these routes: Skilled Worker, Sole Representative, Global Talent, Innovator, T2 Minister of Religion, International Sportsperson, UK Ancestry, Domestic Worker in a Private Household, Temporary Work – International Agreement, and Hong Kong British National (Overseas). As you can see, the 10-year route is NOT among the routes we just mentioned. Here, the applicant is allowed to leave the UK for “up to 180 days at a time“.

 

However, the allowance was not seen in sections 276 B to D of the Immigrations rules – it was merely published in the Home Office Guidance: Long Residence (Version 17.0), p 12 and the government gateway website for this route: https://www.gov.uk/long-residence/eligibility. Unfortunately, the Government’s explanation in this link is not very clear. On the one hand, it does refer to the “continual residence” requirement, but on the other hand, it explains “continual residence” differently from the Immigration Rules, which explained in the first section.

 

Clearly, the “continual residence” defined for the purpose of 10-year lawful residence route is more lenient than the one defined by section CR 2.1 of the Rules. There are still two things to bear in mind: one, the total days of absence for long lawful residence, within the ten years, are restricted to 540 days; two, the Home Office is obliged to consider whether your absence is “reasonable”. This is a soft test, so in your applications, you should give accounts to the nature and motivation of your absence, even if they are within the 180-day limit.

 

Is Spouse Visa Route subject to continual residence?

 

Here, the answer is no. Spouse visa is not mentioned in the applicable routes of Appendix CR. In Immigration Rules Appendix FM: Family Members (“Appendix FM” hereafter, it is the legal basis of spouse visas), there is no reference of continual residence or any mention of a specific number of upper limit for absent days.

 

However, this does not mean the applicant can leave the UK for however long he or she desires. Instead, what is in place is a test of “intention to live permanently”. Let’s look at it in more details. E-LTRP.1.10 (for extension, but is also a criterion for settlement as listed by E-ILRP.1.3.1A) says:

 

…since the last grant of limited leave to remain as a partner, the applicant and their partner have lived together in the UK or there is good reason, consistent with a continuing intention to live together permanently in the UK, for any period in which they have not done so.

 

Here, the Home Office requires a good reason for any period that the couple did not live together in the UK. This is again a soft test on reasonableness. Applicants must provide an explanation for any time during which they are separate OR not in the UK. Thus, a shorter but unreasonable period abroad may render your application ineligible; whereas a longer period, if accompanied with sufficient explanation and evidence, might not.

 

Conclusion

 

Above is an explanation for “Continual Residence” and some of its exceptions or variations. Please be aware that there may be other requirements on your absence from the UK (eg the 540-day restriction for 10 year lawful residence settlement). Different from requirements on income or English ability, your past experience in or out of a place is not something you can amend once it happened. To avoid unexpected disruptions, you should be careful about these rules from the beginning.

 

That being said, it is not necessary to restrict your mobility more than you are required to. Why not talk to us and find out what are the restrictions you are facing!

 

Have questions about this article? Get in touch today!

 

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

 

Email us on info@lisaslaw.co.uk.

 

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

 

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

 

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.

 

Have questions about this article? Get in touch today!

 

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

 

Email us on info@lisaslaw.co.uk.

 

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

 

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

 

Contact us today and we will assist you in your claim.

Written by Stephanie Chiu

 

With the news that the Home Office is planning to send migrants to Rwanda imminently, the following article takes a look at the Rwanda Asylum plan and gives our legal perspective on the policy. The UK government signed the Asylum Partnership Arrangement with Rwanda on the 14^th April 2022.

 

As part of the plan, the government is planning to relocate some asylum seekers to Rwanda on a one-way ticket.  The relocation plan will target single young migrants who have arrived in the UK since 1^st January 2022.  The government intends to make the first transfer in the next few weeks.

 

Once transferred, Rwanda would take responsibility for those sent there. It said that migrants would be “entitled to full protection under Rwandan law” with equal access to employment and services.

 

The UK government is planning to invest £120 million into the “economic development and growth of Rwanda” as part of the arrangement.

 

The plan will last for 5 years and may be renewed every year upon request.

 

What are the current rules for claiming asylum?

 

Asylum applications must prove they cannot return their home country because they fear persecution due to their race, religion, nationality, social group and political opinion.

 

Their asylum application can include their partner and any children under 18 if they are in the UK as well.

 

Further changes to the asylum system

 

The Royal Navy will take charge of responding to small boats in the British Channel. There is an estimated cost of an additional £50 million for the new arrangement.

 

Migrants arriving in the UK will be sent to processing centres across the UK. In addition, there will also be a new asylum reception centre in Linton-on-Ouse, in North Yorkshire.

 

Our comments

 

This UK government plan is likely to be legally challenged under the 1951 Refugee Convention, the 1967 Protocol and the European Convention on Human Rights.  The Convention should be applied without discrimination as to race, religion or country of origin.

 

While the UK has opened its borders to Ukrainians, other nationalities who have similarly fled persecution are going to be treated with cruelty. This appears to be a double standard based on race and religion which ignores the human dignity of those asylum seekers.

 

The UK government claims this arrangement can solve irregular entries across the English Channel.  The idea of “extraterritorial processing” is not a new policy and has previously been implemented (then abandoned) by Australia who attempted to negotiate a similar deal with Rwanda until it was discontinued following a Supreme Court ruling in 2017.  The experience of Australia shows that relocating asylum did not prevent attempts of boat crossings.  Between 2014 and 2017, Israel also deported asylum seekers to Rwanda and Uganda.  Many are thought to have left soon after and smuggled back to Europe as refugees.

 

Notwithstanding the other factors, Rwanda has human rights issues and been alleged of extrajudicial killings, suspicious deaths in custody, unlawful or arbitrary detention, torture, and abusive prosecutions, particularly in the targeting of critics and dissidents.  UK government has been criticizing the human rights in Rwanda, called for investigations into the above allegations and has even accepted asylum applications from Rwandans in recent years.  Would Rwanda still be considered as “safe place to live” as mentioned by the UK government?

 

Our advice for all those who have entered the UK and fear persecution upon return to their home country is to claim asylum immediately.

 

Contact us today and we will assist you in your claim.

 

Have questions about this article? Get in touch today!

 

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

 

Email us on info@lisaslaw.co.uk.

 

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

 

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

 

Contact us today and we will assist you in your claim.