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Appeal judges grapple with gaps in lawful residence

Appeal judges grapple with gaps in lawful residence

In the messy case of Akter v Secretary of State for the Home Department [2021] EWCA Civ 704 the Court of Appeal considered that a second decision letter which generated a right of appeal might have continued the appellant’s lawful residence when she pursued that opportunity to appeal, despite the original decision letter not giving her a right of appeal. This was even though Ms Akter had not made a second application to trigger the second decision letter. This judgment was only a decision on permission to bring judicial review proceedings, so nothing was conclusively determined at this stage.

Applications for permission to remain

Ms Akter became appeal rights exhausted in August 2014. She had applied for application for permission to remain in the UK as a student, which was refused by the Home Office and on appeal. She then made an application for permission to remain on human grounds within 28 days. That was also refused without a right of appeal and she brought judicial review proceedings. 

For some unexplained reason, whilst the judicial review was ongoing, a separate refusal letter dated May 2015 was issued which did grant a right of appeal. Because she now had that remedy, Ms Akter abandoned her judicial review to pursue the appeal. Everyone, including the First-tier tribunal judge, thought the May 2015 letter was reconsidering the September 2014 application and the judge allowed the appeal on human rights grounds.

Application for indefinite leave to remain

It was only when Ms Akter came to apply for indefinite leave to remain on the basis of long residence that the Home Office said it had not reconsidered that application after all. It took the position that Ms Akter was therefore unlawfully resident between when her application was first refused (in August 2014) until she won her appeal and was granted permission to remain (in June 2016). The question was therefore whether the ten-year long residence clock was interrupted.

The Court of Appeal found it arguable that the second refusal letter was reconsidering the original application. That letter did in fact review the substance of the application and “should be seen as an integral part of the Respondent’s continuing review and assessment of the Appellant’s September 2014 application for leave to remain”.

The court didn’t go on to finally decide the case since Ms Akter had produced a “confetti” of additional documents, so it will go back to the Upper Tribunal. 

The Home Office’s dysfunctionality has hit new heights if it is issuing decisions on applications that were never made! The case also shows how complex the rules on long residence are, and why it can be important to take legal advice and assistance on such applications, particularly for people with a complicated immigration history.

Bilaal is an Associate in the commercial dispute resolution department of a leading international law firm.