It took some gumption for ‘PG’ to submit a SET(LR) application in April 2021 requesting that she be granted indefinite leave to remain in the UK.
PG had only been granted limited leave to remain for the very first time in June 2019, following 18years residence in the UK as an overstayer.
I say gumption as a quick glance at her previous immigration history might have made another applicant balk at the thought of seeking to approach the Home Office so soon after a grant of long-awaited leave.
This is what the Home Office knew regarding PG prior to the settlement application of April 2021:
- She had previously sought entry to the United Kingdom in 1995 as a visitor however was refused entry and removed to Zimbabwe. At that time Zimbabwean nationals could simply board a plane headed for the UK and request entry as a visitor at the airport.
- She made two further separate attempts to enter the UK in 1999 but was denied entry each time at the airport.
- She re-entered the UK in February 2001 using a counterfeit passport in another’s name.
- She next came to the attention of the UK authorities in late 2003 when she attempted to obtain a British passport by claiming to have been born in the UK. It was found that she had submitted a forged British birth certificate.
- She was charged, convicted and sentenced to 3months imprisonment for using a false instrument in 2004.
- At least 7 applications based on private and family life, including an asylum claim, two failed appeals and an unsuccessful judicial review claim were submitted between 2004 and 2018.
- Having been given a custodial sentence of 3months, following release, from September 2004 she was granted Temporary Admission(TA) and with reporting being one of the conditions of TA, she reported in compliance until 2012, ie for 8years.
- The last two reporting events in 2012 were cancelled by the Home Office. Thereafter, the Home Office did not ask PG to report (as evident for the Subject Access Disclosure obtained in advance of submission of the settlement application).
- PG therefore did not report for 7years as part of conditions of Temporary Admission right up till grant of leave in June 2019.
Why did PG seek to submit an ILR application?
PG(along with several others) contacted me following a short blog post of 12 February 2021 which raised issues that appeared to catch her circumstances:
The SET(LR) application under the long residence Rules
PG placed reliance upon Paragraph 276B of the Immigration Rules.
It was submitted on her behalf that she fulfilled all the requirements for indefinite leave to remain following a period of 10 years continuous lawful residence in the UK.
It was argued that for the purposes of the long residence Rule, she had remained lawfully in the UK compliant with her conditions of Temporary Admission from 2004 and then was immediately and automatically from a specific point in time, lawfully in the UK on Immigration Bail until she was granted limited leave to remain in June 2019.
It was also submitted that there were no reasons why it would be undesirable on public interest grounds to grant PG indefinite leave to remain.
PG had initially instructed me in 2019 and obtained her first ever grant of limited leave on 26 June 2019 as an unmarried Partner on the 10year route to settlement. The very same arguments which I set out on PG’s behalf in representations of 2019 and her statement of the same period as regards why she satisfied the suitability criteria, were also relevant for consideration as balancing factors for the purposes of the public interest considerations.
It was put forward that PG’s application did not fall for refusal under the general grounds for refusal. Where it was concluded they did apply in relation to PG’s past conduct, submissions had been made within the Representations.
27page Representations were submitted in support of PG’s settlement application.
Extensive reference was made to the following:
- Disclosure from the Subject Access Request Unit
- The Immigration Rules
- Long Residence Guidance
- Relevant paragraphs of Schedule 2 to the Immigration Act 1971
- Section 11(1) of the Immigration Act 1971 Act
- Bail Guidance
- Schedule 10 to the Immigration Act 2016
Hoque & Ors v The Secretary of State for the Home Department (Rev 1)  EWCA Civ 1357 (22 October 2020), was referred to in passing but it was clear arguments could be sustained on PG’s behalf without reliance upon Hoque.
What was argued in the alternative?
Whilst it was maintained that PG fulfilled the requirements of indefinite leave to remain on the basis of the 10year Rule, reliance was placed on the following Immigration Rule in the alternative:
“276A04. Where a person who has made an application for indefinite leave to remain under this Part does not meet the requirements for indefinite leave to remain but falls to be granted limited leave to remain under this Part on the basis of long residence or private life in the UK, or outside the rules on Article 8 grounds:
(a) The Secretary of State will treat that application for indefinite leave to remain as an application for limited leave to remain;
(b) The Secretary of State will notify the applicant in writing of any requirement to pay an immigration health charge under the Immigration (Health Charge) Order 2015; and
(c) If there is such a requirement and that requirement is not met, the application for limited leave to remain will be invalid and the Secretary of State will not refund any application fee paid in respect of the application for indefinite leave to remain”.
Accordingly, PG relied upon the following:
- Her family life as a Partner under Appendix FM but with a request to switch into the 5year route to settlement as she fulfilled the relevant requirements and had provided adequate documentation
- She contended in the alternative that at the date of the application in April 2021, she had resided in the UK for at least 20years continuously and placed reliance upon the Immigration Rules, Paragraph 276ADE(1), as a basis of claim.
What was the outcome of PG’s ILR application?
It took nearly 9months for PG’s ILR application to be decided.
During consideration of the application, a complaint was forward to the Complaints Unit on PG’s behalf raising issue as regards the delay in making a decision, more so as her limited leave to remain was due to “expire” on 18 December 2021 without a decision being made on the April 2021 ILR application.
The Complaints Unit responded indicating PG only had a limited leave FLR(FP application outstanding and such applications were not subject to a time scale for consideration.
As matters stood, PG could not possibly submit any other application – both her applications for settlement and then limited leave in the alternative were contained in the application submitted in Aril 2022. She was however covered in the meantime by Section3C leave.
The complaint was escalated to the Complaints Review Unit in December 2021, stating amongst other matters:
“We request a review of the received response below. The response appears divorced from the reality of the facts of this case. Our client did not submit an FLR (FP) application. As per the attached online Set (LR)application form, she submitted an application for indefinite leave to remain on 23 April 2021. That is the application that has taken the relevant department 7months to decide……. In any event, an ILR application was submitted on our client’s behalf having regard to the Immigration Rules. It is incumbent upon the Secretary of State that proper procedure be adhered to and an actual decision be made on that application and communicate a decision on the ILR application. There has been an unreasonable delay in the consideration of the ILR application”.
A further chaser email was forwarded to the Complaints Review Unit in January 2022.
Without further ado, on 17 January 2022, PG’s application for indefinite leave to remain under the 10year lawful residence Rule was granted by the Secretary of State.