Nesiama & Ors, R (On the Application Of) v The Secretary of State for the Home Department (Rev 1)

For the five-year settlement route, “residence” in paragraph 245AAA of the Immigration Rules means physical presence in the United Kingdom. The provision does not permit an applicant who exceeds 180 days’ absence in a relevant 12-month period to prove continuity through property, tax, business or family ties. The 180-day limit is a maximum. A separate discretion outside the Rules may arise for serious or compelling reasons, but the guidance excluded employment-related absences. A public-law challenge based on “unfairness” requires more than an adverse outcome. Substantive fairness is reviewable only exceptionally, where the decision amounts to an abuse of power and the unfairness and remedy are so clear that only one lawful course is open. The Secretary of State was not required to consider superseded Rules or guidance when deciding whether to grant leave outside the Rules.

The First Appellant, a Nigerian national and Tier 1 (General) Migrant, applied for indefinite leave to remain under the five-year settlement route. Her family members applied as her dependants. The application was refused because she had been absent from the United Kingdom for 215 days in one relevant year and 284 days in another. She relied on business, family and personal ties to the United Kingdom, and on the reasons for her absences.

The Upper Tribunal refused judicial review, holding that “residence” meant physical presence and that the Secretary of State was not required to assess wider connections once the 180-day limit was exceeded. The appeal concerned the construction of paragraph 245AAA of the Immigration Rules and whether failure to consider earlier Rules and guidance made the decision unlawfully unfair.

1. Disposition. The appeal was unanimously dismissed. The Appellant had not satisfied the continuity requirement for indefinite leave to remain.
2. Construction of the Rules. The Immigration Rules are construed according to the natural and ordinary meaning of their language, read in the context of the Rules as a whole and the function they serve. The Secretary of State’s intention is determined objectively from the Rules, rather than from supposed policy considerations or guidance. This approach was stated in Mahad v Entry Clearance Officer [2009] UKSC 16; [2010] 1 WLR 48 and Odelola v Secretary of State for the Home Department [2009] UKHL 25; [2009] 1 WLR 1230.
3. Residence and absence. Paragraph 245AAA defines the continuous period required by paragraph 245CD. In that context, “residence” means physical presence. The provision does not redefine the word “spent” in paragraph 245CD. The language of continuity and absence, together with the purpose of paragraph 245AAA, supports that construction. Evidence of a home, property ownership, tax payments, business activity or family connections cannot restore continuity after the permitted absence has been exceeded.
4. Earlier authority and the 180-day limit. BD (work permit – “continuous period”) Nigeria [2010] UKUT 418 (IAC) was distinguishable because it concerned Rules and guidance that contained no definition or specified allowance for absences. Paragraph 245AAA was introduced to set a maximum of 180 days’ absence in each relevant 12-month period. Absence beyond that limit breaks continuity. The guidance’s serious or compelling reasons route did not assist because employment-related absences were expressly excluded.
5. Unfairness. A distinction must be drawn between an unfair outcome and a breach of the public-law duty of fairness. Substantive fairness may be reviewed exceptionally where necessary to correct an abuse of power. The unfairness must be so obvious, and the remedy so plain, that the public body could reasonably act only in one way. The circumstances here fell far short of that threshold. The analysis in R (Talpada) v Secretary of State for the Home Department [2018] EWCA Civ 841 was applied.
6. Leave outside the Rules. The discretion to grant leave outside the Rules derives from the statutory scheme under the Immigration Act 1971. Where the statute provides no fixed list of relevant matters, the Secretary of State has substantial flexibility, subject to Wednesbury review. There was no legal requirement to take account of superseded Rules or guidance, and failure to do so was neither irrational nor otherwise unlawful.

• Court of Appeal (Civil Division) — On 14 June 2018, the appeal from the Upper Tribunal was dismissed: [2018] EWCA Civ 1369.
• Upper Tribunal (Immigration and Asylum Chamber) — Upper Tribunal Judge Allen refused the judicial review claim on 17 January 2017, holding that residence meant physical presence and that the decision was lawful.