Ground 1
15. Mr Buley argued that the respondent erred by failing to treat as a relevant circumstance for the entirety of the first and second periods, when the applicant was out of the United Kingdom, the respondent’s published policy which indicated that certain kinds of absence, including legitimate business absence, would not be treated as breaking continuity of residence. He argued that this failed to give effect to the applicant’s legitimate expectation that the policy then in force would apply to her case and failed to recognise that the compelling circumstances in such a case are not found merely in the fact that the absences were pursuant to legitimate business activity. This ground arose in respect of the Secretary of State’s exercise of her discretion. He argued that the policy could not fetter the respondent’s discretion so as to consider only compassionate matters. She could therefore not exclude business absences. The applicant would not have known during those first two years that going a little over the 180 day period would lead to her failure in her subsequent application. Compassionate elements were not just a matter of business absences but also arose since at the time when she thought she was working towards success under the five year Rule, the Rule had changed.