Syed, R (on the application of) v Secretary of State for the Home Department

Indefinite leave to remain under paragraphs 276A and 276B of the Immigration Rules requires compliance with the requirement of continuous lawful residence. Article 8 does not, without more, require the court to read those provisions down or give them a different meaning. Immigration Directorate Instructions may allow discretion where there are short gaps or extenuating reasons, but that discretion does not make every non-compliant application arguable. A judicial review claim will fail where the claimant cannot identify precise extenuating reasons and, on the evidence, remission would inevitably produce the same decision.

The claimant, a Pakistani national who had lived in the United Kingdom as a student, challenged the refusal of indefinite leave to remain. His qualifying period contained two gaps in lawful residence: one of 28 days in 2003 and one of approximately one week in 2004.

He argued that paragraphs 276A and 276B should be read in light of Article 8, and that the refusal was conspicuously unfair and irrational because the Secretary of State had not sought an explanation for the gaps. The court also considered the relevance of MD (Jamaica) and GE (Canada) v Secretary of State for the Home Department, [2010] EWCA Civ 213, and Secretary of State for the Home Department v Pankina, [2010] EWCA Civ 719.

1. Construction of the Immigration Rules. The challenge based on Article 8 was wholly unarguable. The straightforward meaning of paragraphs 276A and 276B required lawful residence to be continuous. The court could not read the provisions down merely because the claimant relied on Article 8. The approach in MD (Jamaica) and GE (Canada) v Secretary of State for the Home Department, [2010] EWCA Civ 213, supported that conclusion. The decision in Secretary of State for the Home Department v Pankina, [2010] EWCA Civ 719, did not assist the claimant.
2. Discretion under the Instructions. The relevant Immigration Directorate Instruction recognised that an applicant might have made every attempt to comply despite a short gap. It contemplated allowing a single short gap of ordinarily no more than 10 days. The reference to cases with more than one gap as not usually appropriate for discretion left room for exceptional cases involving extenuating reasons. Case workers therefore had to exercise discretion in appropriate cases.
3. Application to the claimant. The claimant had two gaps, including one of 28 days, and had not provided precise evidence explaining either period. His suggested academic commitments and possible illness were tentative. Even if the matter were remitted on the existing evidence, the same decision would inevitably follow. The decision was therefore neither irrational nor unfair.
4. The court observed that a procedure for investigating possible extenuating reasons in short-gap cases might improve the system, because the existing approach could cause injustice. That observation did not make this claim arguable on its facts. Permission to proceed was refused. The costs order already made by Dobbs J remained in place.

First-instance judicial review application. Permission to proceed was refused; the judgment records that Dobbs J had earlier refused permission on the basis that the decision was not arguably unreasonable or irrational.