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Is “residence” the same as “presence” in the Immigration Rules?

Is “residence” the same as “presence” in the Immigration Rules?

Yes, “residence” is the same as “presence”, at least in paragraph 245AAA(a) of the Immigration Rules, says Upper Tribunal Judge Allen. Official headnote:

(i) On a proper construction of paragraph 245AAA(a)(i) of HC 395, an absence from the United Kingdom for a period of more than 180 days in one of the relevant 12 month periods will entail a failure to satisfy the requirements of paragraph 245CD.

(ii) The term ‘residence’ in paragraph 245AAA(a) is to be equated to presence.

The decision is understood to be under appeal. The two words are different, after all, and if the meaning were intended to be the same then it is arguable the same word would have been used by the very careful and skilled Home Office draftspersons responsible for the Immigration Rules.

Source: RN, R (on the application of) v Secretary of State for the Home Department (paragraph 245AAA) [2017] UKUT 76 (IAC) (12 January 2017)

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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