Crossing the border and leave to remain

6.11.6 Long residence

In SSHD v Ruhumuliza [2018] EWCA Civ 1178 the Court of Appeal held, by a majority, that the Tribunal had not been wrong to allow Mr Ruhumuliza’s appeal against refusal of indefinite leave under the 10 year long residence rule. He was a Rwandan bishop who had been excluded from refugee status because, although he had not committed any killing himself, he had appeared to be complicit in the Rwandan genocide, and had failed to give refuge to Tutsis. However, since that time, he had been active in supporting efforts in Rwanda towards justice and reconciliation. He had never hidden his failures and had publicly apologised for his weakness.

The Home Office had refused his application for leave to remain on the grounds for refusal that it was undesirable in the public interest for him to obtain ILR, given his previous exclusion from refugee status. The First-tier and Upper Tribunals found that the exclusion, based on events long ago, did not determine how the discretion should be exercised now, in the light of subsequent events. The majority of the Court of Appeal agreed.

In R (Nesiama & Ors) v SSHD [2018] EWCA Civ 1369 the Court of Appeal held that residence meant physical presence. This was an application for indefinite leave to remain based on residence as a Tier 1 worker, but the concept of ‘continuous residence’ is used in a number of immigration rules to qualify for indefinite leave. The Court of Appeal was interpreting para 245AAA of the rules which provides:

continuous period” “lawfully in the UK” means, subject to paragraph (e), residence in the UK for an unbroken period with valid leave, and for these purposes a period shall be considered unbroken where

(i) the applicant has not been absent from the UK for more than 180 days during any 12 month period in the continuous period,

The appellant argued that where a person was absent for more than 180 days  “residence” should be assessed taking into account factors such as property, payment of taxes and other connections to the UK, rather than simply “physical presence”. The Court of Appeal disagreed, and held that para 245AAA was intended to set a maximum number of days’ absence.