Case No. UKUT-00076(IAC)

[1928] AC 217232, quoted by Lord Scarman in Shah that if ordinary residence had any definite meaning it meant according to the way in which a man’s life was usually ordered. Lord Scarman’s agreement with what had been said by Lord Denning MR as to the meaning of the phrase, at page 342 in Shah , seems to me again to be a definition taking into account both words of the phrase. 25. In any event I think there is force in the argument that Mr Wagner makes that the statutory framework or the legal context, as referred to by Lord Scarman at page 343 has to be taken into account. In this regard I see force in the point made by Mr Wagner that there is significance in the definition of when a period shall not be considered to have been broken, in paragraph 245AAA(a)(i). It is clearly a reference to a period of absence from the United Kingdom the effect of which is to state that if a person has not been in the United Kingdom for 180 days or less their period of residence will not be considered to have been broken. If residence is not to be equated with presence then it is difficult to see what the point of the provision is. Residence cannot mean different things for different purposes in the context of one Rule. If the applicant can point to an absence of 180 days or less during the particular twelve month period then his period of residence will not be regarded as being unbroken. It seems to me that one can only interpret the term “residence” in (a) on the basis that it equates to presence for the rest of the provision to make sense. As such accordingly I agree with Mr Wagner that residence for the purposes of the Rule must in effect be equated to presence to be sensibly interpreted. The Rule provides a straightforward and clear solution to the problem created by the uncertainty of the previous provision. It was only necessary for the Tribunal in BD to go into the question of what was meant by continuous period of five years lawfully in the United Kingdom because it had no further definition to assist it. We now have a definition however and in my view the proper interpretation of the term “residence” is as set out above. One would be left otherwise with the uncertainty as shown in the discussion with Mr Buley about the person who seeks ILR and has a home and pays taxes in the United Kingdom but who for the whole of the five year period is away from the United Kingdom for work reasons. In my view the Rule is designed to get around the uncertainties and the need for the kind of decision-making to which Mr Buley adverted. 26. In many ways the point concerning the proper interpretation of the implications of 245AAA(i) for a period of absence of more than 180 days follows from that. Mr Buley’s argument is, in effect, that the respondent chose not to say in specific terms how a person who had been absent for more than 180 days should be regarded but that it was a matter for interpretation by the decision-maker and potentially, ultimately, the court. But it seems to me to follow ineluctably from the statement that a period shall not be considered to have been broken when the applicant has been absent from the United Kingdom for a period of 180 days or less in any of the five periods, that a period will be considered to have been broken where there has been an absence for more than 180 days. After all, the requirement, going back to paragraph 245CD(c) is that the applicant must have spent a continuous period as specified in (d) lawfully in the United Kingdom and, though a person is given the generous exemption of a period of 180 days or less in which they may be absent from the United Kingdom, I think it must follow that that is as far as the exemption goes, and that a period of absence for a lengthier period is one that leads to disqualification under the Rule. 27. It follows that the applicant’s argument under the construction ground fails. Ground 1 28. The short point made by Mr Wagner in relation to this is that as a consequence of the decision in Odelola , the respondent is not obliged to consider or apply old guidance when new guidance has subsequently been provided, unless this is required by transitional provisions. The point is made in the detailed grounds of defence that if the applicant were correct in her argument in this respect the respondent’s officials would be required to have ongoing consideration to previous guidance which had been in force for a number of years prior to the date on which the decision is made, which would impermissibly undermine the certainly and predictability required for the operation of a fair and effective immigration system. It is also argued that to require officials to have regard to archived guidance would inevitably result in a fettering of their discretion, at least in some cases and that it might involve them departing from more recent published policy in giving consideration to and applying previous guidance. 29. Mr Buley’s point was in essence that it was not so much a question of requiring the respondent to apply old Rules or guidance but rather in the exercise of her discretion outside the Rules, to bear in mind that there was an old Rule and that different Rules and policies applied during the two periods in question. 30. I have set out above what the respondent said in her decision letter about the exercise of discretion in this case. I do not consider that she was bound to take into account previous Rules and policies which were in existence at the time of the two periods in question. The respondent has chosen to create a policy in which in exceptional circumstances indefinite leave to remain can be granted where continuous leave is broken. In my view the policy is a perfectly rational one. To allow for evidence showing that the excessive absence was due to serious or compelling reasons is in my view a perfectly proper basis for the exercise of discretion in such a case. The examples given of serious or compelling reasons are helpful. The respondent gave consideration to the reasons why the applicant had been out of the country for more than 180 days in the first period for business reasons, and concluded that they did not amount to exceptional reasons. That decision was properly open to her. As a consequence I do not consider that ground 1 is made out. Ground 2 31. It must follow from what I have said above that this application is refused. I have not found in the applicant’s favour on the construction ground, nor in relation to the first period of exceeding 180 days. I have found that the respondent’s exercise of that discretion was lawful. 32. It is the case that only one period of broken continuous residence in the five year period is enough for the application to be unsuccessful. However, for the sake of completeness, it is right that I address the reasoning of the respondent in relation to the second period. I do not consider that what was said in the April 2016 supplementary decision can be taken into account. As Mr Buley pointed out, the challenge is to the January and February decisions. What was said in this regard in relation to the exercise of discretion was in my view inadequate. There was evidence of the kidnap, and I should say that I consider that kidnap of a parent would inevitably amount to a serious or compelling reason. It may be that on fuller consideration the respondent would have come out with the kind of points in the April 2016 letter in any event, but as matters stood at the dates of the decisions, I consider that the very limited reasoning given for not exercising discretion in relation to the second period was inadequate. There was the evidence of the applicant herself and there was the police report. The respondent did not chose to point out the limitations in these but dismissed them summarily and that in my view was a matter of inadequate reasoning. I therefore consider that the exercise of discretion in relation to the second period was unlawful. 33. However for the reasons given, I consider that the application must fail on the basis that the respondent’s decision was a lawful one under the Rules and also that her exercise of discretion in respect to the first period of exceeding 180 days outside the United Kingdom was a lawful exercise of her discretion. The application is therefore dismissed. I will hear the parties on costs and any ancillary matters when the judgment is handed down. ~~~~ 0 ~~~~