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Long residence again

Long residence again

I posted on this relatively recently but another important judgment has just come out: ZH (Bangladesh) v SSHD [2009] EWCA Civ 8. The case is yet another good one from Lord Justice Sedley.

Lord Justice Sedley
Lord Justice Sedley

The Court of Appeal find that the whole purpose of the 14 year rule (by which illegal immigrants can eventually seek to regularise their status after 14 continuous years of residence in the UK) would be undermined if too strict an approach was followed in relation to the public policy exemptions. Basically, the Home Office retain a discretion to refuse an application if the applicant is unsavoury in some way.

In an earlier Tribunal case called MO (Ghana) [2007] UKAIT 00014 Dr Hugo Storey held, essentially, that use of a false identity to work illegally was enough to exclude someone from the benefits of the 14 year rule. He recorded that the barrister in that case had accepted that it was a ‘particularly serious crime’. In the latest case, ZH (Bangladesh), the Court of Appeal are at pains to point out that the barrister concerned had actually written to the court to say she in fact made no such concession in MO. I’ve been on the receiving end of what I considered disingenuous comment by Dr Storey in a published determination and will say no more about this.

However, I am really sick of immigration judges (and the Home Office, although I expect it of them, given the ‘win at all costs’ approach with which we are familiar in deportation cases) saying that almost any criminal offence is a ‘particularly serious’ one. Terrorism, serious sex offences, murder, drugs and arson are particularly serious. Everything else is not. It undermines the importance and gravity of genuinely serious offences and makes a mockery of both the concept of a scale of seriousness and the English language to keep saying that a string of road offences or even dishonesty offences such as theft or fraud are ‘particularly’ serious. They aren’t.

The Court of Appeal were somewhat critical of MO (Ghana) in another case, called Aissaoui v SSHD [2008] EWCA Civ 37, and say that it should be treated with caution. Sedley LJ was on the bench, so to speak, but judgment was given by Lord Justice Hooper.

In ZH (Bangladesh) the Court of Appeal is even more explicit and endorses more emphatically the argument that the 14 rule would be pointless if illegal workers were excluded from its benefits. Almost inevitably, any applicant under the rule must have worked illegally in the UK during the 14 years of their stay, after all.

So, yet another example of an unnecessarily negative and conservative tribunal decision being overturned. That hopefully lays that particular issue to rest. However, it is perhaps worth warning that the use of false papers, particularly false EEA identity documents, is considered pretty serious by the Home Office, prosecutions are common when this comes to light and this might well lead to problems in attempting a 14 year rule application.

Free Movement

The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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