Kungwengwe v Secretary of State for the Home Department

For indefinite leave to remain based on long residence, residence must satisfy the precise definition of lawful residence in paragraphs 276A to 276D of the Immigration Rules. Residence under an unrevoked EEA residence document is lawful in ordinary terms, but it is not residence pursuant to existing leave to enter or remain. Nor does it constitute an exemption from immigration control within the relevant statutory meaning. The Secretary of State may combine periods qualifying under the long-residence provisions with periods satisfying the conditions for an EEA residence document, but an applicant must satisfy the applicable requirements for the whole period relied upon. A refusal under the long-residence provisions is therefore lawful where the applicant cannot satisfy either route, or the combined approach.

The claimant sought judicial review of the Secretary of State’s refusal of her application for indefinite leave to remain based on ten years’ continuous lawful residence under paragraphs 276A to 276D of HC 395.

She had leave to enter or remain from December 1992 until September 1999. Thereafter she held a residence document as the family member of a Portuguese EEA national. She and her husband had separated, and she could not establish that he remained a qualified person exercising Treaty rights. The central issue was whether residence under that document counted as lawful residence for the purposes of the long-residence provisions. She also challenged the decision under Article 8 of the European Convention on Human Rights.

1. The judicial review claim concerning long residence was dismissed. The claimant had continuous residence pursuant to existing leave to enter or remain only until September 1999. Her subsequent residence was pursuant to an EEA residence document and did not fall within paragraph 276A(b)(i) of HC 395.
2. The residence document conferred a lawful right of residence for its duration. It did not, however, amount to leave to enter or remain. Section 7(1) of the Immigration Act 1988 removed the requirement for such leave where residence was authorised by an enforceable Community right or by legislation made under section 2(2) of the European Communities Act 1972.
3. The alternative reference in paragraph 276A to an exemption from immigration control did not assist the claimant. That expression had a specific statutory meaning. The claimant was not exempted under section 8(2) of the Immigration Act 1972 or the Immigration (Exemption from Control) Order 1972.
4. The Secretary of State’s approach was lawful. In an appropriate case, periods under paragraphs 255 and 276A to 276D could be considered cumulatively. That approach did not invalidate the residence document for other purposes. The claimant could not, however, satisfy the long-residence provisions for ten continuous years, could not satisfy paragraph 255, and could not satisfy the combined approach because she could not show that the conditions for the residence document continued to exist.
5. The Article 8 challenge raised a separate issue. The Secretary of State’s later letter did not adequately address the claimant’s private-life claim, particularly given the uncertainty about her husband’s status and the relatively short period after expiry of the residence document. The judge indicated that, if invited, he was minded to grant judicial review on that issue and require reconsideration.

First-instance judicial review. The judgment states that permission was granted after an oral hearing on 17 January 2005. No earlier judgment is stated.