SB (Turkey) v Secretary of State for the Home Department

For the ten-year lawful-residence route to indefinite leave, a later grant of leave does not retrospectively regularise a gap caused by expiry of earlier leave unless the Immigration Rules expressly provide for that result. The special treatment of temporary admission cannot be extended by analogy to a person whose leave has expired and who has made an invalid application. The ten-year rule is not an admission that removal after ten years is necessarily disproportionate under Article 8. Private and family life must be assessed on the individual facts. A grant of limited student leave does not estop the Secretary of State from considering an application for indefinite leave.

The appellant applied for indefinite leave to remain under the ten-year lawful-residence provisions. His student leave expired on 23 March 1999. Applications made in March and April 1999 were treated as invalid. He later obtained student leave, deemed to have been granted from 29 September 2001.

Immigration Judge Kealy dismissed his appeal against refusal of indefinite leave. Reconsideration was ordered, but Senior Immigration Judge Martin dismissed the appeal on 8 August 2008. The appellant sought permission to appeal to the Court of Appeal, arguing that the later grant of leave should carry back to the earlier gap, by analogy with temporary admission. He also relied on published policy, Article 8, estoppel and waiver. The central issues were whether the gap counted as lawful residence and whether removal was disproportionate.

Lord Justice Sullivan refused permission to appeal.

1. Construction of the Immigration Rules. The Rules may be construed purposively, but paragraph 276A is carefully and clearly drafted. Where a later grant of leave is intended to be carried back to an earlier period, as with temporary admission, the Rules make express provision. There was no warrant for adding a similar gloss where earlier leave had expired.
2. Temporary admission distinguished. A person on temporary admission while awaiting a decision on a valid application is in a materially different position from a person whose leave has expired and who then makes an invalid application. The former has no control over the duration of the administrative decision-making process. The latter has no permission during the gap, whether the lapse occurred deliberately or inadvertently. The appellant therefore could not count the period after 23 March 1999 towards lawful residence.
3. Published policy. The decision in ZH (Bangladesh) v SSHD [2009] EWCA Civ 8 established that immigration instructions are not an aid to construction or a substitute for the Rules, although an Immigration Judge should be aware of the underlying instructions. The relevant instructions concerned temporary admission and did not assist the appellant.
4. Article 8, estoppel and waiver. The ten-year rule does not itself establish that removal after ten years’ presence is disproportionate. Each private- or family-life case must be assessed on its own merits. A grant of student leave for a finite period and particular purpose does not estop the Secretary of State from considering a later application for indefinite leave, nor does it waive the public interest in removal.

The application was therefore refused.

• Court of Appeal (Civil Division): Lord Justice Sullivan refused permission to appeal; application refused.
• Asylum and Immigration Tribunal: Immigration Judge Kealy dismissed the appellant’s appeal on 29 April 2008. Reconsideration was ordered. Senior Immigration Judge Martin dismissed the appeal after reconsideration, in a determination promulgated on 8 August 2008.