10 Year Battle Against the Home Office Ends in Victory

Posted on 29th March 2021 |

“I find that the appellant meets all the suitability and eligibility requirements and therefore meets the requirements for ILR under the long residence rules”.

Our client (“A”) came to us as a victim of misfortune, the Home Office’s administrative failure, and the ‘hostile environment’ policy introduced in 2012 by then Secretary of State Theresa May.

‘A’ arrived in the UK in 2010 on a student visa, so that he could pursue his further education. In 2012, he applied for further leave as a student to continue with his studies. However, after A had submitted his application, his educational establishment lost its sponsor licence and as a result its ability to enrol foreign students on its courses. A was not made aware of this, nor did he play any part in the revocation of the sponsor licence, and therefore was astonished when he came to find out that his application had been refused on that basis.

A submitted an appeal against the decision, and the matter ended up before the First-tier Tribunal (FTT) in 2013. At the FTT, it was ruled that the Home Office’s decision to refuse A’s extension application was unlawful, and it was ordered that A should be granted a further period of 60 days leave to find a new educational provider. Despite this determination, A did not receive any further correspondence from the Home Office implementing the appeal decision and granting him limited leave to remain.

In 2014, A reached out to us and instructed us to take on his matter, and we wrote to the Home Office to follow up on the FTT’s determination. We were informed by the Home Office that they had sent a letter to A granting him 60 days of limited leave to remain, but that the mail had returned as undeliverable, and that the period of leave granted had expired in 2013, thus rendering A an overstayer since 2013. This decision was highly unfair, as A had never actually been served with the grant of leave, which meant that he had not had a fair or practical chance to find a new educational sponsor. We then consequently submitted an application for leave outside of the Immigration Rules (LOTR), on the basis that A had not received the letter of grant, and that he should be granted a period of leave to remain as mandated by the FTT.

In the year 2015, A’s LOTR application was refused with a right of appeal, on the basis that the Home Office failed to accept our argument about service in relation to post. We then submitted an appeal against the decision, and the matter was heard at the FTT in 2016. Following this hearing, the appeal was dismissed, and we proceed to apply for permission for the matter to be heard at the Upper Tribunal (UT).

In 2017, permission was granted, and the matter was heard at the UT. At the hearing, the honourable UT judge determined that the Home Office had not effectively served A with the decision letter, as it was insufficient for her to claim that she had done so simply by sending out the letter, whilst knowing that A had not received it. The appeal was granted, and it was ordered that the decision to refuse A’s LOTR application should be withdrawn, and that A should be granted the period of 60 days leave to remain as per the FTT’s decision in 2013.

In 2018, A finally received a letter from the Home Office granting him a period of 60 days further leave to remain, so that he may find a new educational sponsor. This was a rather pyrrhic victory, as being given 60 days to find, apply and be accepted by a suitable educational establishment was very impractical, unrealistic and had little chance of success. Furthermore, by this point in time A had been in the UK for almost 8 years and broken away from his studies for 6 years due to the administrative failings of both his previous sponsor and the Home Office. During this time, A had also never left the country, and had established his life in the UK, despite the turmoil he was facing.

Consequently, we applied for further leave to remain on the grounds of A’s private life, and the fact that he had become accustomed to life in the UK and had developed a strong network of friends and relatives here. In 2020, this application was refused with a right of appeal, and we promptly appealed against this decision. Whilst we waited for the matter to be listed, A completed his 10 years residence in the UK. A was a fluent speaker of the English language and had also passed his Life in the UK test, and so he met the other eligibility requirements to apply for settlement under the long residence category. The only query was whether he had completed a period of 10 years continuous and lawful residence, and whether he could submit an application for settlement whilst his appeal was pending.

We advised A to this regard, and submitted a valid application addressing all the legal and factual issues, to prove that A was eligible for settlement. As a result of our prompt and informed support throughout A’s timeline with us, we were able to demonstrate that A had never broken his continuity, and that he had had lawful residence in the UK from the date of his arrival till the present date. We additionally were able to justify that submitting a fresh application would not break A’s continuity or bring his appeal to an end.

In the meanwhile, A’s appeal was listed to be heard remotely at the FTT at the start of this year (2021). On the morning of the hearing, we received notice from the Home Office’s counsel that they would seek an adjournment at the hearing, on the grounds that the wording of the Home Office’s most recent refusal letter to A was ‘confusing’ and difficult to understand! We provided our counsel with clear instructions not to concede on this point, as we had provided the FTT and the respondent with a clear and detailed chronology of A’s immigration history and documented by the court’s previous determinations. We had also provided sufficient evidence to demonstrate that A had met the requirements for settlement, including all the details of his applications and the supporting documentation, and raised the point that it had been several months since the application had been submitted, and therefore the respondent had sufficient prior notice of the change in A’s circumstances.

At the hearing, the honourable FTT judge walked through A’s immigration history which we had clearly presented in the appellant’s bundle and believed that upon closer inspection that it was plainly apparent that A had accumulated 10 years continuous and lawful residence in the UK, and that he also satisfied the remaining eligibility requirements. The judge also expressed her alarm that the Home Office had left it to the very last hours before the hearing to request an adjournment, and that even at the end of the hearing, after the respondent’s counsel had conceded and accepted A’s immigration history, that he still nevertheless wished to request an adjournment.

A few weeks later we received the determination, and the appeal was successfully granted. Our client was delighted, as his pending settlement application was now supported by the FTT, who agreed that he was eligible for settlement under the long residence category.

Since the above determination, the Home Office had tried to appeal the FTT’s decision, however permission for this was refused. Whether the Home Office will attempt to appeal directly to the UT is yet to be seen, however this would be a show of poor faith, given the UT’s strong determination and A’s eligibility for settlement, and would only serve to delay the processing time for A’s application. The law states that a period of 10 years long residence once established cannot be lost, and so irrespective of the appeal decision A now should be granted settlement.