BD v The Secretary of State for the Home Department

A work-permit holder’s requirement to have spent a continuous period of five years lawfully in the United Kingdom under paragraph 134(i) of the Immigration Rules cannot be construed literally. It permits some absences abroad.

The assessment is discretionary and must be made sensibly. Relevant considerations include the reason for absence and the strength of the applicant’s continuing ties to the United Kingdom. Absences required by a British employer during approved work-permit employment need not interrupt continuity where the applicant retains a United Kingdom base and has made the country his home.

The appellant, a Nigerian national, had held a work permit while employed by a British company for five years. More than half of that period was spent on overseas assignments required by his employer. His salary was paid in England, he paid United Kingdom tax and national insurance, joined a United Kingdom pension scheme and bought a home in Wolverhampton.

The Secretary of State refused indefinite leave to remain under paragraph 134(i) of the Immigration Rules, and also rejected claims based on long residence and article 8. An Immigration Judge dismissed the appeal on the basis that the appellant had not spent five continuous years in the United Kingdom. The central issue was whether employer-required overseas work could fall within the required continuous period.

1. Appeal allowed. The Immigration Judge erred in construing paragraph 134(i) of the Immigration Rules restrictively. The appellant met the requirements for indefinite leave to remain as a work-permit holder.

2. The words requiring a person to have spent a continuous period of five years lawfully in the United Kingdom cannot bear a literal meaning. A literal construction would treat even a day’s absence as breaking continuity, although the Secretary of State in practice disregarded some absences, such as holidays.

3. Unlike the long-residence provisions, paragraph 134(i) contains no definition of continuity and no applicable published guidance was available. It therefore imports a discretion, exercisable by the Tribunal, concerning the absences that may be disregarded.

4. The discretion must be exercised sensibly. The reason for absence and the strength of the applicant’s ties to the United Kingdom are material. Here, the overseas assignments were required by the appellant’s British employer. He retained his United Kingdom base, paid tax there and had clearly made the country his home. Those matters meant that his absences did not prevent him satisfying paragraph 134(i).

5. The appellant did not satisfy paragraph 276B because his total absences exceeded the limit specified for long residence. It was unnecessary to reach a concluded view on article 8 because the appeal succeeded under the Rules.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal under paragraph 134 of the Immigration Rules.
• First-tier Tribunal: Immigration Judge McLachlan dismissed the appeal under paragraph 134, the long-residence rule and article 8.