Shangping He, R (on the application of) v Secretary of State for the Home Department

For the purposes of the long-residence route, residence supported by leave obtained through deception is not lawful residence. The requirement for ten years’ continuous lawful residence must be construed in its statutory and policy context and cannot include residence which constitutes a breach of immigration laws. An application for indefinite leave to remain under paragraph 276B is an application for permission to stay. It may therefore be refused under paragraph 9.8.3A where the applicant used deception in a previous application.

The applicant had entered the United Kingdom under a false identity and obtained indefinite leave to remain, which was later revoked because it had been obtained by deception. He subsequently obtained family-life leave and applied for indefinite leave to remain on the ground of ten years’ long residence under paragraph 276B of the Immigration Rules.

The Secretary of State refused the application, relying on the exclusion of deceptive residence from lawful residence and on the discretionary general ground for refusal in paragraph 9.8.3A. Permission for judicial review was granted on those two issues. The central questions were whether the revoked leave counted towards ten years’ continuous lawful residence and whether paragraph 9.8.3A applied to a paragraph 276B application.

1. The claim was dismissed. The period during which the applicant held indefinite leave to remain obtained by deception did not constitute lawful residence for paragraph 276B(i)(a).
2. Paragraph 276B(i) requires at least ten years’ continuous lawful residence. Paragraph 276A supplies an exhaustive definition of “continuous residence” and “lawful residence”, although the combined expression must be interpreted in context. The relevant question was not whether the leave was valid or a nullity, but what “lawful residence” means.
3. Under section 3 of the Immigration Act 1971, leave to remain is the legal basis for residence. However, residence supported by leave obtained through deception is unlawful. It also amounts to a breach of immigration laws within the statutory and Rules framework. Reading paragraphs 276A(b)(i) and 276B(i) purposively, the leave relied upon must itself have been lawfully obtained. Any contrary construction would treat the fruits of deception, and potentially criminal conduct, as lawful residence.
4. The approach was consistent with the ordinary and sensible interpretation of the Immigration Rules described in Mahad v Entry Clearance Officer and R (Wang) v Secretary of State for the Home Department, and with the principle against interpreting legislation to produce an absurd result stated in R (PACCAR Inc and others) v Competition Appeal Tribunal and others.
5. An application for indefinite leave to remain is an application for permission to stay. Section 33 of the Immigration Act 1971 makes no qualitative distinction between limited and indefinite leave, and paragraph 6.2 of the Rules gives “permission to stay” the same meaning as leave to remain. Paragraph 9.8.3A therefore applied to the paragraph 276B application.
6. The Secretary of State was entitled to exercise the discretion under paragraph 9.8.3A adversely to the applicant because he had knowingly used deception in a previous application. The reasons given in the supplementary decision were unchallenged and the refusal was open to the Secretary of State.

1. Upper Tribunal (Immigration and Asylum Chamber): dismissed the judicial review claim. Permission had been granted on the first and second grounds only.