The long residency route to settlement may be available to people who have spent 10 lawful and continuous years in the UK in various immigration categories. It is possible that some of these categories may not lead to settlement if relied on independently, but are capable of forming the basis of an application for indefinite leave to remain (“ILR”) in the UK under the 10-year long residency route.
Despite its initial attractiveness, the route has its difficulties and many applicants fail to satisfy the relevant eligibility criteria for ILR, not least because the route requires evidence to be provided for a longer qualifying period than under a normal PBS category leading to settlement.
The initial threshold that needs to be passed is that any qualifying period of residence must be lawful, and it must also be continuous. An applicant’s presence in the UK will be considered lawful if they have valid leave to enter or remain in the UK, they have been granted temporary admission to the UK and leave was subsequently granted or where they have been subject to exemption from immigration control in limited circumstances. The continuity of residence will be interrupted if the applicant spends more than 6 months at any one time or more than 18 months in total outside the UK over the qualifying period.
Public interest considerations will also be taken into account before any decision is made to grant ILR. These are based on the applicant’s personal circumstances such as their age, and strength of connections in the UK and their personal history. Furthermore, the usual requirements for any ILR application must also be fulfilled, such as the applicant’ssuitability under the general grounds for refusal, the passing of the Life in the UK test and English proficiency.
It is these public interest considerations that may carry a degree of unpredictability as they cover a variety of factors, some of which might not be so obvious, and which may therefore cause problems with an application. In the context of a longer qualifying period, applicants appear to be particularly vulnerable where seemingly unimportant and unrelated issues such as late payment of tax or fixed penalties may have been overlooked in the past. It is these types of oversights that may adversely affect the Home Office’s judgement as to the desirability of an applicant’s presence in the UK under the public interest criteria.
A recent example of this can be found in the case of Yaseen v SSHD [2020] EWCA Civ 157, in which the Court of Appeal considered the Home Office’s refusal of a long residency application on public interest grounds. The appellant, who was a highly skilled migrant holding leave under various immigration categories including Tier 1 (General) throughout his stay in the UK, had successfully proved his continuous lawful residence in the UK, but had failed to submit timely tax returns during certain periods in the qualifying 10-year period. He only did so a few years later, when it emerged that these were required for his long residency application.
The Home Office considered this to be a relevant factor in justifying the refusal of ILR, citing that the appellant’s character and conduct made his presence in the UK undesirable. In reaching its refusal, the Home Office considered information provided earlier by the applicant, including details about the income he had relied on as part of his previous applications but which he did not submit to HMRC at the time. When challenged about this during a Home Office interview as part of his ILR application, the applicant admitted being aware that he had not submitted his tax returns for those years, but explained that this was the fault of his accountants.
The Home Office interpreted this as a deliberate attempt by the applicant to conceal his earnings from HMRC and evade any tax he would have been liable for. It also implied that his belated submission of tax returns upon realising they were required as part of an ILR application was nothing more than an attempt to frustrate the Immigration Rules in an attempt to acquire ILR. However, the refusal letter did not explicitly suggest dishonesty on the part of the applicant, since there was no discrepancy between the figures as submitted in the previous applications and thereafter in the delayed tax returns. The applicant appealed against this decision, saying that as the Home Office had not attributedactual dishonesty to him, it was not entitled to jump to such conclusions without giving proper consideration to positive evidence about his character and conduct.
Eventually, the Court of Appeal emphasised the need for procedural fairness in dealing with long residence applications, and asserted that a balancing exercise had to be conducted to weigh all factors which counted in the applicant’s favour against those which were to his detriment. This should be done in all but the most extreme cases. Although any deliberate failure to submit tax returns might see an ILR application being refused on public interest grounds pertaining to conduct and character, the Court of Appeal indicated that there was a significant difference between a deliberate failure and mere carelessness, and that this difference should be looked at carefully when considering public interest grounds.
The court was also referred to a ministerial policy statement made in the context of tax discrepancies in which it was emphasised that the government was not seeking to refuse highly skilled migrants’ applications due to minor tax errors. The statement makes clear that the context and scale of any discrepancy is relevant, with each case being decided on its merits. It is therefore important for the Home Office to balance the appellant’s positive contribution to the UK against any alleged misconduct before making a final assessment as to whether the appellant’s presence in the UK is undesirable.
The current state of this case is that the Court of Appeal has sent it back for a re-hearing, so that a balancing exercise could be performed to enable procedural fairness. The court held that any favourable evidence should be taken into account to establish its effect and impact on the overall outcome of the case, as this was never done either by the Home Office in its original decision or by the immigration courts during the appeal stage.
Gherson has extensive experience in dealing with various immigration applications, including the long residency route. If you have any questions in relation to this matter, please do not hesitate to contact us.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
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