LL (China) v Secretary of State for the Home Department

A change to the long-residence rules is not retrospectively unlawful merely because it alters the conditions on which a person already in the United Kingdom may remain. A person who did not apply under, or rely upon, an earlier policy has no entitlement to its benefit after a new regime has taken effect.

Under the Immigration Rules, ten years’ continuous lawful residence requires an unbroken period of residence. Total absences exceeding 18 months break continuity. On the particular facts, a wish to complete a professional qualification did not independently engage article 8, and removal was proportionate.

The appellant, a Chinese national, had entered the United Kingdom as a student at the age of 13. She had obtained successive grants of student leave, completed substantial education, and was studying for the ACCA qualification. During the relevant ten-year period she made 27 visits to China and was absent for more than three years in total.

Her application for indefinite leave to remain on grounds of long residence was refused. An Immigration Judge initially remitted the matter to the Secretary of State. On reconsideration, the Asylum and Immigration Tribunal held that the appellant could not meet the continuous-residence requirement in the Immigration Rules and dismissed her article 8 claim. The appeal concerned alleged reliance on former long-residence policies, the effect of the later Rules, and the proportionality of removal before completion of her qualification.

1. Appeal dismissed unanimously. Laws LJ gave the judgment, with which Wilson LJ and Mann J agreed. The appellant could not satisfy the long-residence rules. Ten years’ continuous lawful residence required an unbroken period, and total absences of more than 18 months broke continuity. Her absences exceeded three years.

2. The former 1987 policy and 2000 concession gave the appellant no legitimate expectation. She had never applied under either regime and would in any event have been unlikely to qualify because of the frequency and extent of her absences. The May 2007 Immigration Directorate Instructions were guidance for applying the Rules, not a separate policy.

3. The Rules which took effect on 1 April 2003 were not analogous to retrospective legislation. A new immigration regime may alter the basis on which persons already present may remain, provided that it does not undermine an established right or a position actually founded on reliance upon the earlier provisions. An applicant who did not seek the benefit of an earlier policy cannot obtain that benefit through a later application made under the new Rules.

4. On the particular facts, the appellant’s wish to complete the ACCA course did not itself create an article 8 claim. If she wished to remain as a student, the appropriate course was to seek a further grant of student leave. Her limited private and family life in the United Kingdom, her continuing family ties in China, and her employment prospects there made the refusal proportionate, whatever the outcome of her examinations.

• Court of Appeal (Civil Division): dismissed the appellant’s appeal: [2009] EWCA Civ 617.
• Asylum and Immigration Tribunal: at second-stage reconsideration, dismissed the appeal under the long-residence provisions of the Immigration Rules and on article 8 grounds, determination promulgated on 14 October 2008: [AIT No: IA/19900/2007].
• Asylum and Immigration Tribunal: at first-stage reconsideration, held that the original determination contained an error of law and directed that the remaining issue was article 8.
• Immigration Judge: initially remitted the long-residence application to the Secretary of State on 20 February 2008.