The High Court today handed down judgment on a judicial review challenging the Secretary of State’s rigid approach to calculating ‘continuous residence’ for settlement purposes.
G had been admitted to the UK under the HSMP (Highly Skilled Migrant Programme) scheme in 2004 on the basis of economic activity as a specialist media advisor with clients all over the world. Travel outside the UK for face to face meetings was always an essential part of his professional role which necessitated his regular absence form the UK. However his home was in the UK throughout and his wife and children firmly established in the UK.
Applying a rigid mathematical formula of 180 days absences per year as provided by the current Immigration Rules (245CD and Appendix S), the Home Office refused to grant settlement to the family after 10 years of tranches of limited leave. G challenged the decision on the basis that rule 135G, in force at the date of his admission to the scheme, contained no requirement for continuous residence on its face, only a requirement to hold four years’ ‘continuous leave’.
Applying the earlier HSMP (1) and (2) judgments and the principle in Alvi and Munir, the court agreed with G that the Secretary of State was not entitled to impose a requirement for settlement which did not appear on the face of the rule at the time of entry to the scheme. The judge also held that G’s grounds rightly asserted in any event that ‘continuous residence’ had to be interpreted flexibly and that there had been a failure by SSHd to consider exercising discretion to grant settlement having regard to s 55 Borders Citizenship & Immigration Act 2009 and s 6 HRA 1998.
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