Ten years’ continuous residence – settlement – appeal

As many readers may know, there is a rule within the immigration rules that enables migrants who have lived in the UK for ten continuous years – under any type of visa or any combination of visas – to acquire indefinite leave to remain (ie settlement) on that basis.

The principle is a simple one and, unless there are any significant countervailing factors, the migrant can rely on it. Briefly and basically, the applicant has to show that they have been in the UK for the requisite period and that they have not been outside the UK for too long during that period. There are a few complexities here and there, and English language/Life in the UK test requirements, but that is pretty much it.

To take an example: a migrant might have come to the UK on a Tier 4 visa to study a below degree-level course and then a Bachelor’s degree course and then a Master’s degree course, which might have taken five years in total. Then they might have got a good job and acquired a Tier 2 General visa as a skilled worker. Then, after say three years, they might have suddenly fallen in love and married a settled person and switched to a spouse/partner visa. After another two years, and assuming that the relationship remains intact, they could apply for settlement on the basis of ten years’ continuous lawful residence.

But supposing the application for some reason is refused – is there a remedy? Well, yes there is, but here things do get rather complicated.

The Home Office and Parliament have, over the last few years, been progressively eroding rights of appeal to the First-Tier Immigration Tribunal. There are now only two categories of visa application that attract the right of appeal if refused: (i) EEA applications and (ii) human rights applications.

What is a human rights application? Well, it’s a good question. By a strange combination of an Act of Parliament and immigration rules the Home Office have decided that some visa applicants get it and some don’t. Applicants who apply under the ten-year continuous residence rule do get it, they will be pleased to know.

The Home Office thinking about this appears to be that such an application has an intrinsic human rights character and it is therefore better to state that there is a right of appeal than have to fight about it in the courts.

In recent times a Nigerian family of three (described anonymously and efficiently as “OA and others”) found themselves before the First-Tier Tribunal on just such a matter.

But the judge at the First-Tier Tribunal thought that the First-Tier Tribunal did not have jurisdiction to hear the appeal, and so it didn’t. This must have come as rather a surprise to OA and others, and they appealed to the Upper Tribunal.

The Upper Tribunal must also have been rather surprised, because the First-Tier Tribunal judge had made this decision on the basis of out-of-date law. The poor judge had fallen into an error that many have done and no doubt many will – he had failed to keep up with changes in the law which, in the immigration field, come fast and furious.

In any event, the Upper Tribunal decided to come to the rescue of OA and others and, rather than send the case back to the First-Tier Tribunal for further consideration, decided to make a new comprehensive decision of their own, and in the process provided us with some useful learning.

There is a tricky question here, which might be put as follows:

An application is refused on the basis that it does not meet the requirements of the immigration rules. But the right of appeal can only be on the basis that the migrant’s human rights were infringed. Human rights law and immigration rules are two different bodies of law from different sources and governed by different principles. How is a judge at the First-Tier Tribunal supposed to address this situation?

The Upper Tribunal provided a very clear answer to this:

“… where the judge concludes that the [requirement of the relevant immigration rule] is satisfied and that there is nothing in the evidence before the judge to indicate that an application under [the relevant rule], made by the appellant within a reasonable time after the hearing, would be likely to be rejected by the respondent [ie Home Office], the judge should allow the human rights appeal.”

You can’t say clearer than this: if you met the requirements of the immigration rule you may well be deemed to have also satisfied the requirements for human rights. And this raises an important question: does this principle only apply to ten-year continuous residence cases or should it apply more broadly to different types of visa?

Yes, it should. The Upper Tribunal has previously allowed such appeals with visitor visa cases, and it seems safe to say that this principle is now widely established and can be relied upon at an appeal hearing with any immigration rule.

So OA and others were successful, and if you have a forthcoming appeal hearing at the First-Tier Tribunal our advice is, firstly, hope and pray that you get a judge who knows the up-to-date law and, secondly, make sure you have instructed a good lawyer who can guide the judge through the intricacies of the appeals legislation and caselaw.

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