Case No: C5/2008/2953

Neutral Citation Number: [2009] EWCA Civ 617
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: IA/19900/2007]

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 21st May 2009

Before:

LORD JUSTICE LAWS
LORD JUSTICE WILSON
and
MR JUSTICE MANN
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Between:

	LL (CHINA)	
Appellant	
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SECRETARY OF STATE FOR THE HOME DEPARTMENT	

Respondent	

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Mr D Bazini (instructed by Messrs Gulbenkian Andonian) appeared on behalf of the Appellant.
Ms K Olley (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
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Judgment
Lord Justice Laws:

1.	This is an appeal with permission granted by Rimer LJ after a hearing on 4 February 2009 against the decision of the Asylum and Immigration Tribunal (the AIT) on 14 October 2008 arrived at on a second stage reconsideration.  By it the AIT dismissed the appellant’s appeal against the Secretary of State’s refusal on 9 November 2007 to grant indefinite leave to remain to the appellant on the basis of long residence.  

2.	The appellant is a Chinese national born on 12 April 1984.  She arrived in the United Kingdom on 9 September 1997, thus aged 13, with leave to enter as a student.  She obtained successive extensions of leave in that capacity, the last of which expired on 31 October 2007.  Before that date she successfully obtained GCSEs, A levels and a BSc in accounting and finance at the London School of Economics.  In September 2005 she began a full time course intended to lead to the ACCA accountancy qualification.  She has not yet completed this course.  Her education here has at all times been paid for out of her own, that is her family’s, resources.  She attended boarding school in the United Kingdom while of school age and returned to her parents in China in the school holidays.

3.	On 10 August 1997, before her student leave finally expired, she applied for indefinite leave to remain on the basis of long residence.  That was refused on 9 November 2007 when the appellant was served with a notice of refusal which stated: 

“In view of the fact that you were absent from the United Kingdom for more than 18 months between 09 September 1997 and September 2007 it has been decided that you have not had at least 10 years continuous lawful residence in the United Kingdom.”

The appellant appealed against that decision.

4.	On 20 February 2008 Immigration Judge Clough allowed the appeal to the extent that he remitted the matter to the Secretary of State on the footing that she had not considered her own policy on long residence set out in the Immigration Directorate Instructions (the IDIs) chapter 18. The Secretary of State applied for reconsideration of Immigration Judge Clough’s decision and reconsideration was ordered by Senior Immigration Judge Lane on 8 May 2008.  A first stage reconsideration was conducted before SIJ Spencer, who on 21 May 2008 decided that the original determination of Immigration Judge Clough was flawed for error of law.  He held that the appellant could not succeed under the Immigration Rules, because under the relevant rule, 276A, the appellant’s absences for more than 18 months meant that she could not demonstrate the necessary period of continuous residence, and the IDI on long residence dated May 2007 was not in SIJ Spencer’s view a policy separate from the Immigration Rules.  SIJ Spencer accordingly adjourned the case to a second stage reconsideration: 

“…in which the only issue will be whether the decision infringed the appellant’s rights under Article 8 of the ECHR. The appeal under the immigration rules and on the grounds that the decision was not in accordance with the law will need to be dismissed.”

5.	The second stage reconsideration leading to the decision now under appeal took place on 29 September 2008, and as I have indicated the AIT’s determination was promulgated on 14 October 2008.  The AIT noted at paragraph 43 that the appellant’s representative had confirmed that he would not pursue a case under the Immigration Rules as SIJ Spencer had directed the only issue was the appellant’s claim under ECHR Article 8, which of course guarantees respect for private and family life.  However, the AIT considered the question whether the appellant met the requirements of paragraph 276 of the Immigration Rules (see paragraph 44).  They accepted that the appellant had lawfully resided here (again, paragraph 44) but she then had to show continuous residence for at least ten years (see paragraph 276B(i)(a) of the Rules), that is to say, residence for an unbroken period (276A(a)).  Individual periods of absence for six months or less are allowed or as it were forgiven but subject to 276A(a)(v), which provides that a period of residence will be considered to have been broken if during it the appellant has spent a total of more than 18 months absent from the United Kingdom.

6.	Against the background of those Rules the AIT found, accepting the Secretary of State’s conclusion in her decision letter of 9 November 2007, that by the date of that decision the appellant had been absent from the United Kingdom for more than 18 months since her arrival (see paragraph 46), indeed for a total period of over three years on the appellant’s own schedule put before them (paragraph 47).  In those circumstances she could not satisfy the ten year continuous residence requirement.  Accordingly the AIT dismissed the appeal under the long residence rule in paragraph 276 and following of the Immigration Rules.  That was of course what SIJ Spencer at the first stage reconsideration held would have to be done.  

7.	The AIT proceeded to consider certain policies and concessions which had been adumbrated by the Secretary of State before the regime of paragraph 276A-D came into effect on 1 April 2003 and on which the appellant based certain legitimate expectation arguments.  One of these was a long residence policy announced by the then Minister of State in 1987.  The minister stated: 

“Except where the grant of leave would not be in the public interest, a case in which continuous residence exceeds 10 years will be considered on its merits for the grant of indefinite leave to remain. Among the factors to be taken into account are the strength of ties with the United Kingdom and elsewhere, the total length of continuous residence and the proportion of it which has been lawful.”

8.	In relation to this the AIT observed (paragraph 49) that the appellant had been out of the country on 27 occasions since December 1997, that is, on average nearly three times per annum.  In fact she had never applied under the long residence policy, which was in any event no longer in force by the time that she had been here for ten years.  Her continuous residence had been so short, so it was held, she would likely have failed under that policy and could assert no legitimate expectation to remain by reference to it (see again paragraph 49 of the AIT’s decision).

9.	There was also what the AIT referred to as the “2000 long residence concession”.  That provided that “where a person has completed 10 years continuous lawful residence he should normally be granted indefinite leave to remain without inquiry”.  Continuous residence is defined in paragraph 5 which states that: 

“continuity need not be broken by a small number of short absences abroad of up to six months at any one time during the 10/14 year period.  Short absences cannot be said to disrupt or sever ties with the United Kingdom.  These absences should normally be ignored, unless such trips are frequent”

10.	However, on the facts the AIT held (paragraph 51) that 27 absences was hardly a small number; three absences per annum were frequent; the appellant could not show that she would have prospered under the 2000 concession.  The tribunal observed (paragraph 51): 

“Consequently, she has not shown that she could have had a legitimate expectation of succeeding under that concession.”

Accordingly (paragraph 52) paragraphs 276A-D of the Rules deprived the appellant of nothing that she might otherwise have been entitled to enjoy.

11.	It was also clear, as SIJ Spencer had held, that the IDI May 07 guidance in no sense constituted a freestanding policy, it was plainly on its face expressed as, and was no more than, guidance to caseworkers on applying paragraphs 276A‑D of the Rules (see the tribunal’s determination paragraphs 60-62).

12.	Having disposed of those arguments the AIT turned to Article 8.  The appellant came from a well-off family in China, to whom she had regularly and frequently returned during the course of her education here.  Though she first came here in 1997, she had returned, as I have indicated, at least 27 times, staying in China in total for over three years.  She had an exiguous private life here.  There were two siblings in this country (AIT paragraph 68).  They are students at Eastbourne whereas the appellant lives in London.  They too are in education here and go home to China in the holidays.  All three siblings are wholly supported by their parents.  There is plainly family life in China.  The AIT held (paragraph 69) that the appellant enjoyed no family life here with her elder sister and what they called limited family life with her younger brother.  That was because, being younger, he might to some extent be dependent on her as his elder sister.

13.	The appellant claimed that she had a boyfriend here (paragraph 71) but there was no statement from him and he did not appear at the AIT.  

14.	The AIT held that the appellant’s siblings and seven cousins, who are also in the United Kingdom, and the claimed boyfriend are all students and citizens of China where they will themselves all return (see paragraph 72).  They held (paragraph 74) that the appellant’s return to China would interfere with the limited private life and very limited family life she had established here, but it would be proportionate to the legitimate aim of immigration control.  They said this: 

“75. … As we understand it, the appellant will satisfy the final requirements her ACCA qualifications before the end of the year.  She has already had significant work experience in China (including Hong Kong).  We note from paragraph 16 of her statement that in the summer of 2005 the appellant ‘did an internship in the audit department of KPMG in Guandong’.  We see that this organisation was very happy with her performance and that a senior manager offered to refer her for a job in the Hong Kong office, which she has decided not to accept since she wanted to continue studying here.  In these circumstances, there are good prospects of the appellant obtaining employment in the accountancy sector, either in Hong Kong or elsewhere in China.

76. Indeed, she says in paragraph 26 of her statement that if she cannot stay in the United Kingdom, she will leave after her ACCA and go to Hong Kong where there are many exciting opportunities for people with her qualifications and knowledge of English.  Moreover, she will always be free to apply to the respondent for a visa to work in this country in the accountancy field.  Given her qualifications and work experience, her ability to speak Chinese and her knowledge of China (and given the potential demand for her services as a Chinese speaking accountant in the context of all the significant commercial contacts between this country and China) there must be a good prospect of her being successful in such an application.  In all the circumstance it is, in our view, entirely proportionate to dismiss her appeal on human rights grounds and we do so.”

And so the appeal was dismissed.

15.	The appellant first takes what is referred to as a discrete point on Article 8.  It touches the reasoning in paragraph 75 and 76 which I have just read.  It is said in counsel’s skeleton (paragraph 3) that this reasoning fails to take account of the fact that by dismissing he appellant’s appeal in October 2008, the AIT were in fact putting an end to her extant leave to remain as a student so that the appellant became and would become immediately removable once the time for appealing passed and therefore could not lawfully complete the ACCA qualification.  And Mr Bazini addressing us this morning has effectively supported that submission.

16.	Rimer LJ, who as I have said granted permission to appeal, was apparently told that the appellant would be taking her finals in June 2009 although the original expectation had been that she would sit them in December 2008.  Mr Bazini tells us that she declined to sit the exam, it seems on advice, in December last year.  It is said then that by the AIT’s determination, the appellant is effectively deprived of any lawful opportunity to sit these exams although her sitting them and indeed potentially passing them was an element in the AIT’s own view of proportionality.  I would not accede to this ground of appeal.  The appellant has on the facts effectively no Article 8 case unless her desire to complete the ACCA course of itself provides her with one, but I do not see that Article 8 can fulfil that function, at least on the facts of this case. If she was to remain here as a student, the right route would have been to apply for a further grant of leave in that capacity.  Mr Bazini accepts that that might have been done, indeed I apprehend he accepts that it should have been done.  In all these circumstances the case of OA (Nigeria) v SSHD [2008] EWCA Civ 82, on which on the paper argument Mr Bazini relied, is on different facts and does not assist; nor does MS (Ivory Coast) v SSHD [2007] EWCA Civ 133.  I would also respectfully express my agreement, though I emphasise in the particular circumstances of this case, with what was said by Longmore LJ refusing permission to appeal on the papers: 

“The AIT no doubt expected the applicant to seek permission to appeal and that such application was unlikely to be determined until the results of the applicant’s ACCA was known.”

Longmore LJ added: 

“If she has passed, the discreet point has become academic”

In fact, of course, she has not done so.  In any event, on this aspect of the appeal it seems to me inescapable that the Secretary of State’s decision was plainly a proportionate one whatever the outcome of the appellant’s examinations.

17.	I turn to the other grounds.  The appellant submits that in relation to the successive provisions made by the Secretary of State for long residence cases, the rule relating to 18 months’ absence or more introduced by 276A(a)(v), unless modified, is to be treated as in the nature of retrospective legislation. There was no such requirement under the antecedent long residence policy of 1987 or the 2000 long residence concession.  In practical terms Mr Bazini’s submission this morning is that the meaning of the term “continuous” has changed as between the earlier policies and the current Rules, and therefore as a matter of fairness the term should be applied in the appellant’s case with the meaning, so to speak, in more from time to time.  Thus he says that before the new Immigration Rules came into force on 1 April 1993, the appellant had been out of the United Kingdom since her initial arrival for some 20 to 21 months.  The new rule should only be applied in its fullness in her case by reference to the period from the new Rules’ inception in 2003 until the date of the Secretary of State’s decision, and in that period she had not been out of the country for 18 months.  Thus her earlier absence of 20-21 months before 31 March 2003 should not preclude her from showing continuous residence under the new Rules at the time of the Secretary of State’s decision.

18.	It is also submitted on paper, and I apprehend Mr Bazini would wish to pursue it, that the AIT should have held that the Secretary of State’s decision was “not in accordance with the law” within the meaning of ECHR Article 8(2).  A number of points are taken.  It is said that whether the appellant would have succeeded or failed in an application to remain under the earlier policy or policies was a matter for the Secretary of State and not for the AIT.  The reasons for the appellant’s absences, that is to say, school holidays, should have been taken into account.  It was wrong to categorise her trips to China as frequent when she was a minor.  All she was doing was returning to her family.  The overall point as I understood it was that the Secretary of State’s decision was not in accordance with the law because the Rules or the previous policies for that matter were not applied properly according to their terms.

19.	I regard all these arguments as entirely misconceived.  The appellant made no application under the 1987 policy or the 2000 concession.  Had she done so it would no doubt have been considered appropriately but, for reasons given by the AIT, would have been extremely unlikely to succeed.  When she applied for indefinite leave to remain the new Rules were in force and had been for over four years.  They cannot be regarded as analogous to retrospective legislation since they did not undermine the established rights of any affected person.  An immigrant might or might not have applied under the earlier policies.  If he or she did not there would have been no basis for his or her getting the benefit of them by a later application made at a time when the new Rules were in force.  The earlier policies might have had the character of retrospective legislation or something like it if they purported to remove the basis established by earlier provisions on which an immigrant was actually enjoying a lawful residence in this country, but that they did not do.   The fact that the new Rules altered the regime on which persons already here might stay is legally inoffensive, so long at least as such a person had placed no reliance on any of the earlier provisions.

20.	In the appellant’s case she applied for indefinite leave, as I have said, on 10 August 1997, within the currency of her student leave.  That current leave was then extended, by force of statutory provisions which I need not describe, while her fresh application was outstanding and until any appeal process was exhausted.  Because of the protracted nature of the appeal proceedings, she has remained here pursuant and only pursuant to her student leave as extended by statute.  Her only claim to remain, since she has no further student leave, will have to be under paragraph 276A-D of the Rules which have had effect, as I have said, since 1 April 2003.  On the facts she has no case under those Rules. Any appeal to earlier policies is wholly artificial and in reality the truth is that this lady cannot show continuous residence under any of the successive regimes to which we have been referred.

21.	Despite Mr Bazini’s tenacious and elegant efforts, I regard this appeal as hopeless and I would dismiss it.

Lord Justice Wilson:

22.	So would I

Mr Justice Mann:

23.	I agree

Order: Appeal dismissed