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

For indefinite leave to remain under HC 395, “residence” in paragraph 245AAA(a) means presence in the United Kingdom. Paragraph 245AAA(a)(i) provides a clear limit: an absence of more than 180 days in any relevant consecutive 12-month period breaks the required continuous five-year residence and prevents satisfaction of paragraph 245CD.

The Secretary of State may exercise discretion outside the Rules where excessive absence arose from serious or compelling reasons. The current policy, rather than superseded guidance, governs that discretion unless transitional provisions require otherwise. A decision-maker must nevertheless give adequate reasons when rejecting evidence capable of showing such compelling circumstances.

The applicant sought judicial review of decisions refusing her indefinite leave to remain as a Tier 1 (General) Migrant. She had been absent from the United Kingdom for 215 days in one relevant 12-month period and 284 days in the next.

She contended that her absences for business, her children’s schooling and the kidnapping of her mother did not interrupt her residence. She challenged the construction of paragraphs 245CD and 245AAA of HC 395, the refusal to apply earlier guidance, and the adequacy of the reasons given for refusing discretion outside the Rules.

The central issue was whether an absence exceeding 180 days automatically broke continuous residence under paragraph 245AAA(a)(i).

1. The application for judicial review was dismissed. On the proper construction of paragraph 245AAA(a), residence is equated with presence in the United Kingdom. That construction gives coherent effect to the provision defining when a period of residence is not broken.

2. Paragraph 245AAA(a)(i) states that a period is not broken if absence is 180 days or less in each relevant 12-month period. It follows necessarily that an absence of more than 180 days in any such period breaks the continuous residence required by paragraph 245CD. The applicant therefore failed under the Rules because her absence in the first period exceeded 180 days.

3. The earlier approach in BD [2010] UKUT 418 (IAC) was of limited assistance because the earlier rule contained no equivalent definition. The meaning of “ordinary residence” considered in R v London Borough of Barnet ex parte Shah [1993] 2 AC 309 did not govern the differently worded and structured Immigration Rule.

4. The Secretary of State was not obliged to take account of superseded Rules or guidance when exercising discretion. The current policy, allowing a grant outside the Rules only for serious or compelling reasons, was rational. The assessment that the applicant’s work-related absences in the first period were not exceptional was lawfully open to the Secretary of State.

5. The reasoning concerning the second period was inadequate. The evidence of the applicant and the police report required proper consideration, and the kidnapping of a parent would inevitably amount to a serious or compelling reason. That error could not affect the outcome, because one earlier period of broken continuous residence was sufficient to defeat the application.

• Upper Tribunal (Immigration and Asylum Chamber): Permission for judicial review was granted following an oral permission hearing. The Tribunal dismissed the challenge to the refusal of indefinite leave to remain, notwithstanding an identified inadequacy in the reasoning concerning the second period of absence.