subject: How much absence can be disregarded in the calculation of a ‘continuous period' of five years the context of a work permit holder [print this page] How much absence can be disregarded in the calculation of a continuous period' of five years the context of a work permit holder
This case concerned a work permit holder who, after five years on his work permit, applied for settlement and was refused by the UK border agency. The basis of the refusal was that the appellant had not spent a continuous period of 5 lawful years in the UK. Usually, a person who has completed 5 years on a work permit in the UK and who continues to work, will be granted indefinite leave to remain (provided the immigration rules are met).
The appellant was a Nigerian national who had arrived in the UK at the age of 16, some thirteen years ago. He pursued studies in the UK from Foundation through to postgraduate levels. He then obtained employment with a large British company named Global Graduate Development Programme. His employers obtained a work permit for the appellant for 60 months (five years). The appellant worked continuously for his employers however, much of his employment was spent overseas in work permit approved employment. In fact, during his work permit period, he spent more than half the time outside the UK stating that this was a part of his duties. He continues to pay tax and national insurance and his earnings were paid into his bank account in the UK. He purchased a home in Wolverhampton and enrolled on his employer's pension plan.
His application for settlement was refused on the basis of paragraph 134 (i) HC 395 which provides that there must be a continuous period of 5 years lawful residence in the UK in order to qualify. He was also considered on the basis of 10 years lawful residence in the UK in accordance with paragraph 276(b)(i)(a) of HC 395 however, he was excluded from this as well for having spent over 18 months outside the UK. The UK border agency also considered the appellant's article 8 ECHR. They found that he has not established a private life in the UK as he travelled outside of it so often.
The Immigration Judge dismissed the appellants appeal under paragraph 134 of the Rules stating that although she accepted the appellant had spent time outside the UK in accordance with his employment, he had simply not spent five continuous lawful years in the UK. She dismissed his appeal on human rights grounds and 10 years lawful residence as well. The appellant subsequently applied for permission to appeal and the case came before the Upper Tribunal. The appellants representative argued that the words of paragraph 134 should not be taken literally otherwise even one day spent outside the UK could amount to breaking lawful continuous residence. The respondent on the other hand, was unable to provide any evidence in the Immigration Directorates' Instructions of how discretion should be exercised to waive breaks in continuity.
The Tribunal held that this could be due to the fact that the work permit scheme had been replaced by Tier 2 of the points based system on 27th November 2008. Any previous IDI's containing this information may have been deleted. The Tribunal agreed with the appellant's representative stating that, taking a literal construction of paragraph 134 would make no sense. Discretion should clearly be exercised in some matters and it was the Tribunal's view that, in this case, the appellant had very strong connections to the UK and clearly intended to make this his home. Whilst the Tribunal concluded that the first immigration judge was correct in dismissing the appeal under paragraph 276, they found that she had erred in law for taking a restrictive approach to paragraph 134. The Tribunal commented that whilst the appellant clearly had a strong article 8 claim, there was no need to consider it having found an error of law in respect of his claim under paragraph 134. In conclusion, the Upper Tribunal held that the appellant did meet the requirements under paragraph 134 and should be entitled to indefinite leave to remain on that basis.
