UK Ancestry Visa | Continuous Residence | Break of Residency

Case facts

The Appellant contacted us when she received a decision from the Home Office as she received a refusal of her indefinite leave to remain (ILR) application which she lodged under paragraph 193 of the immigration rules (UK Ancestry Visa). 

There was excessive absence and grounds of claim that she had broken her continuous residency in the UK. The Appellant held leave from 7th Sep 2007 until 7th Sep 2012 and lodged the application on the 9th of July 2012. 

Directions of removal from the UK was also made by the Home Office and a right to appeal was generated. This was under 82(1) of rhe Nationaliry Immigration and Asyum Act 2002 as amended by the Immigration, Asylum and Nationality Act 2006. 

Outcome of the matter

The Appellant contacted ICS Legal for legal representation following the service of her refusal. We advised her the merits of the appeal and provided clear explanations on how we would challenge the decision. 

We advised that the correct remedy would be to lodge the appeal in time. Submit our grounds of appeal with evidences and ask for a reconsideration. The Home Office failed to do so, and the matter went before the First Tier Tribunal on the 6th of November 2012 before First Tier Immigration Judge K S H Miller. 

As part of our legal defence, we provided evidences the reasons of her break in her residency but demonstrated in our evidence on the appeal bundle of 213, about the Appellant's settled life in the UK. 

We raised grounds to the First Tier Tribunal Judge that the definition of someone being absent from the UK on one period of more than 90 days breaks continuous residence is not defined under the Immigration Rules albeit the Home Office policy states this. However the Home Office policy is not part of law and was not laid by Parliament. 

We also asked the Tribunal Judge to give consideration that the Appellant has established a private life and also raised the issue that the Appellant could stand to lose her employment should she leave the UK and apply for entry clearance. 

In Sapkota it concluded that a decision to refuse leave to remain taken in isolation of consideration of whether the person concerned should also be removed from the United Kingdom was capable of being an unlawful decision. Treating the matter in isolation may prevent the Appellant obtaining a rounded decision on his whole future status in the United Kingdom and may also prevent the Tribunal being able to deal with every aspect of the case.

We therefore contend the Immigration Judge ought to take this into consideration this principle as ‘segregation’ in practice would mean the failure to consider grounds for refusal. In application of this principle we contend it would be grossly for the SSHD to not take into consideration that the Appellant would thus qualify for an extension of her current leave. 

In our appeal skeleton arguments, we set out that there must be a rational connection between the aim and the means by which it is pursued. We asked that serious and due consideration be given the Appellant; having already invested 9 years of her life in the UK. The Appellant have not remained in the UK having ensured she never breached any immigration law; she has made considerable contributions in the payments of taxation. The Appellant has lived an exemplary life thus further showing good character and respect for the immigration control in the UK. 

The Home Office under Section 6 (1) of the Human Rights Act 1998 have an obligation whereby it makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. The Immigration Officer acting on behalf of the Secretary of State for the Home Department (SSHD) has a clear obligation to investigate each circumstance and under its obligation to make any clear comments or determination in accordingly.

When considering the question of proportionality and striking a fair balance between the interests of the community and a well-established individual who wishes to continue the employment she has dedicated so much of her life to, it should be concluded that any interference is not proportionate. 

The First Tier Immigration Judge K S H Miller agreed with our legal submissions, found the evidences demonstrated that it would impact the Appellant's private life, including her employment and found that the delayed decision had impacted the Appellant's private life. 

The appeal was allowed on the 30th Nov 2012. 

End.