Granovski & Ors v Secretary of State for the Home Department

A migrant admitted to the Highly Skilled Migrant Programme was entitled to have settlement considered under the scheme’s terms when he joined it. Later Immigration Rules could not impose a new continuous-residence requirement where the applicable rule required only the requisite period of leave. Guidance outside the Immigration Rules could not itself supply a determinative refusal criterion. Any residual discretion had to be exercised flexibly and fairly, taking account of the applicant’s work pattern, home and family life. The Secretary of State also had to consider Article 8, proportionality and the children’s best interests under section 55 at each relevant stage of decision-making.

The first claimant, a Ukrainian national, entered the United Kingdom under the Highly Skilled Migrant Programme in 2005 and later held leave as a Tier 1 (General) Migrant after the programme closed. He applied for indefinite leave to remain in January 2013. The Secretary of State refused the application, applying paragraph 245CD and Appendix S and treating his extensive business-related absences as breaking continuous residence. Supplementary reasons maintained that the later Tier 1 categorisation governed the application.

The claim for judicial review challenged the applicable rules, the interpretation of continuous residence, the exercise of discretion, and the failure to consider family life, the children’s interests and proportionality.

1. Claim allowed. The refusal decision of 22 March 2013 and the supplementary reasons dated 20 December 2013 were quashed.

2. The application fell to be considered under paragraph 135G as it stood when the claimant joined the Highly Skilled Migrant Programme. Under the HSMP authorities, he was entitled to the benefits of the scheme, including settlement, according to the terms then applicable. Paragraph 135G did not impose a continuous-residence requirement. It required the relevant period of leave in the specified capacity.

3. Guidance outside the Immigration Rules could not be used as a determinative refusal criterion. The principle in Alvi v Secretary of State for the Home Department [2004) UKSC 33 applied. The later rules could not displace the claimant’s legitimate expectation or the benefit of the HSMP scheme. Odelola v Secretary of State for the Home Department [2009] 1 WLR 1230 did not apply to defeat the HSMP authorities.

4. The Tier 1 (General) categorisation did not transfer the claimant into a regime applicable to migrants who had not originally joined the HSMP. His application could not therefore be assessed under paragraph 245CD and Appendix S.

5. Alternatively, continuous residence could not be assessed by a rigid mathematical calculation of physical presence. The approach in BD (work permit – “continuous period”) Nigeria [2010] UKUT 418 (IAC) was correct. The decision-maker had to consider the broader circumstances, including the applicant’s home, family, work pattern and the reasons for absence.

6. The Secretary of State’s discretion was exercised rigidly and incompletely. She considered only the length of the absences and failed to address the claimant’s work, home and family circumstances. She also failed adequately to consider section 55, Article 8 and proportionality at each relevant stage. The decision was unlawful in any event.