The claimant, a citizen of Mauritius, obtained a visitor’s visa to enter the United Kingdom which was valid from 22 March 2001 to 22 September 2001. The visa was stated to be for multiple visits. On 16 April 2001 he entered the United Kingdom as a visitor. On 1 September 2001 he left the United Kingdom in order to return to Mauritius to apply for entry clearance as a student. It was common ground that he had to leave the United Kingdom if he was to make an application for a student visa. His application to enter as a student was granted on 25 September 2001 and remained valid until 25 September 2003. The claimant entered the United Kingdom once more on 5 October 2001. By a succession of applications he applied for and was granted further leave to remain successively as a student and, later, as a work permit holder so that he remained lawfully in the United Kingdom from 25 September 2003 to 13 July 2011. He then became an overstayer. On 10 February 2016 he applied for further leave to remain on human rights grounds and, on 8 November 2016, that application was granted, with leave granted until 8 May 2019. On 30 May 2019 he brought an application for indefinite leave to remain on the grounds of ten years continuous residence. On 20 September 2019, the Secretary of State refused that application on the ground, inter alia, that the claimant’s continuous residence started on 5 October 2001 (when he entered the United Kingdom with entry clearance as a student) not 16 April 2001 (when he had previously entered the United Kingdom as a visitor). She found that during the period relied upon by the claimant as continuous residence, he had “left the United Kingdom in circumstances in which he had no reasonable expectation at the time of leaving that he would lawfully be able to return” and therefore could not satisfy the requirements of paragraph 276A(a)(iii) of the Immigration Rules. The claimant sought to challenge the Secretary of State’s decision by seeking permission to bring a claim for judicial review, contending that when he left the United Kingdom on 1 September 2001, he had a reasonable expectation that he would lawfully be able to return, which satisfied the requirements of paragraph 276A(a)(iii) and that, therefore, his absence between 1 September and 5 October 2001 did not break the period of continuous residence which should have been taken as starting on 16 April 2001. The Upper Tribunal refused permission to proceed with the judicial claim and the claimant appealed. During the course of the hearing in the Court of Appeal, the court decided to hear full argument of the issues which would arise if permission to bring judicial review proceedings were granted. It was conceded for the purposes of the appeal that a visitor lawfully present in the United Kingdom could be said to be “resident” within the meaning of the relevant rules.
Paragraph 276 of the Immigration Rules provided: “(a) ‘continuous residence’ means residence in the United Kingdom for an unbroken period, and for these purposes a period shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of six months or less at any one time, provided that the applicant in question has existing limited leave to enter or remain upon their departure and return, but shall be considered to have been broken if the applicant: … (iii) left the United Kingdom in circumstances in which he could have had no reasonable expectation at the time of leaving that he would lawfully be able to return ...”
On the claimant’s appeal from the Upper Tribunal and claim for judicial review—
Held, appeal and claim allowed. The Immigration Rules read in isolation did not expressly or by implication exclude people who had been present on a visitor’s visa from paragraph 276A(a)(iii). The temporary nature of a visitor’s visa could not justify reading into the Rules that a person who had been present with the benefit of a visitor’s visa could not have a reasonable expectation that he would lawfully be able to return. That was particularly so when the extract from the relevant guidance showed that the existing leave did not have to be in the same category on departure and return. All visas short of indefinite leave to remain were, to a greater or lesser extent, temporary and required the person to leave the United Kingdom on their expiry. Paragraph 276A(a)(iii) was concerned with the person’s expectation for the future, not the nature of any past lawful residence. In that respect, there was nothing in the fact of a claimant having prior clearance as a visitor which affected the reasonableness or otherwise of his expectation that he would satisfy the criteria for a student’s visa. It was incorrect to suggest that paragraph 276A(a)(iii) had to exclude people who had been resident on a visitor’s visa, because otherwise the rule was of no effect. Paragraph 276A(a)(iii) might apply where a person had left with the benefit of existing leave but having blotted their copybook (eg by committing an offence of which they had not yet been convicted) in a way that (a) was not covered by other paragraphs but (b) had the effect of prejudicing their prospects of obtaining future leave. The critical question under paragraph 267A(a)(iii) was whether the claimant had a reasonable expectation at the time of leaving that he would lawfully be able to return. In the present case, the fact of the claimant having held a visitor’s visa was not of itself capable of prejudicing his application for a student’s visa. The claimant had in fact been granted his student’s visa, from which it might be deduced that he had satisfied the criteria for that grant. On that basis, his expectation that he would be granted the student visa for which he was going to apply was reasonable. Accordingly, permission to apply for judicial review would be granted, the substantive judicial review claim allowed and the Secretary of State’s order refusing the claimant indefinite leave to remain set aside (paras 28–32, 34, 35, 36).
Quaere. There is or may be a qualitative difference between the nature of a person’s presence with the benefit of a visitor’s visa and in other circumstances. In everyday language, one would not naturally refer to a person’s presence in a country on a “visit” (or a succession of visits) as “residence” or as “living in” the country being visited. It would be more natural to refer to “staying in” the country or simply “visiting” it (para, 27).
Darryl Balroop (instructed by Callistes Solicitors) for the claimant.
Zane Malik QC (instructed by Treasury Solicitor) for the Secretary of State.