Shaban Shabani, R (on the application of) v The Secretary of State for the Home Department (Legacy � Residence � SOS�s Limited Duty)

Under chapter 53.1.2 of the Enforcement Instructions and Guidance, a period of residence is one factor in a holistic assessment under paragraph 395C of the Immigration Rules. The policy does not require the Secretary of State to refer expressly to a particular period of residence, including six to eight years. It is sufficient if the decision shows that the decision-maker was aware of the period and assessed it with the other relevant circumstances.

Length of residence does not itself require a grant of leave. Periods of absconding or other non-compliance may substantially reduce its weight. Where the policy assessment has properly considered residence, the resulting Article 8 assessment is not unlawful merely because the decision does not give residence the weight sought by the applicant.

The applicant sought judicial review of the Secretary of State’s refusal, dated 21 March 2011, to treat earlier material and further representations as a fresh claim. He had arrived in the United Kingdom in 2000, claimed asylum, exhausted his appeal rights in 2003, and was recorded as an absconder until he submitted a legacy questionnaire in August 2007.

The refusal considered his residence, private life, the former paragraph 395C factors in the Immigration Rules, and Article 8. The applicant contended that the Secretary of State had failed to apply chapter 53.1.2 of the Enforcement Instructions and Guidance by giving insufficient weight to his residence, and that this also made the Article 8 assessment unlawful. The central issue was the extent of the Secretary of State’s duty to identify and weigh periods of residence under that policy.

1. The application for judicial review was refused. The Secretary of State had made no public-law error in refusing to treat the material as a fresh claim.

2. The Tribunal accepted the interpretation of chapter 53.1.2 adopted in Hakemi [2012] EWHC 1967 (Admin) and Mohammed [2012] EWHC 3091 (Admin). In the relevant bullet point, delay meant the passage of time and did not require culpable delay by the United Kingdom Border Agency.

3. However, chapter 53.1.2 did not create a mandatory requirement to give a stated period of residence particular or significant weight. Consistently with Jaku [2014] EWHC 605 (Admin), the decision need only show that residence of six years or more has been considered in the round with all relevant factors and explain why leave was not granted. The policy was guidance within an assessment directed to compelling reasons, usually of a compassionate nature.

4. The applicant was not properly characterised as an absconder after his legacy questionnaire of 15 August 2007. The respondent had not produced the earlier reporting documentation, her acknowledgement did not state that reporting remained required, and it discouraged further contact. Nevertheless, his earlier period of absconding was relevant, as was the fact that he had never held leave. Length of residence was not determinative and non-compliance could diminish its significance.

5. The refusal letter sufficiently demonstrated awareness of both the applicant’s total residence and his period of absconding. It considered those matters with the other paragraph 395C factors. No express reference either to chapter 53 or to a specific six-to-eight-year period was required.

6. The Article 8 challenge failed for the same reason. The respondent had considered the applicant’s residence and private life, and had carried out the assessment by reference to the Razgar approach. There was no error of law in the proportionality assessment. The issue concerning relief after repeal of paragraph 395C was therefore academic.

Upper Tribunal (Immigration and Asylum Chamber): First-instance judicial review of the Secretary of State’s decision of 21 March 2011 refusing to treat further material and representations as a fresh claim. The application was refused. No earlier judicial decision is stated in the judgment.