PETITION BY ZAFFAR MIRZA FOR JUDICIAL REVIEW
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 73
P1041/15
OPINION OF LORD TURNBULL
In the Petition
ZAFFAR MIRZA
Petitioner;
for
Judicial Review
Petitioner: Irvine, Advocate; McGill & Co. Solicitors
Respondent: Carmichael QC; Office of the Solicitor to the Advocate General
27 May 2016
[1] The petitioner is a 56 year old Pakistani citizen who seeks judicial review of a decision by the Secretary of State to refuse to grant him what is known as a “No Time Limit” endorsement.
Background
[2] The petitioner’s personal and family history is at the heart of this case. On his account of matters it can be summarised as follows. He was born on 20 June 1959 and came to the United Kingdom with his family in 1967. He initially moved to London and has lived in the United Kingdom ever since. As a child he was taken into local authority care and spent short periods of time in detention, both as a juvenile and as a young adult. Aged around 17 or so he moved to Glasgow and aged 18 he married Rukhsana Begum, a British citizen, with whom he went on to have five children, one of whom died in 2006. He claims to have lived with his wife and family in Glasgow, Stirling and latterly Edinburgh. The title to the family house in Edinburgh is said to be in his wife’s name. He claims to have worked in various different Indian restaurants over a number of years and only to have left the United Kingdom on two occasions, once in 1981 for around six weeks and again in 1995 for around twelve days.
[3] The petitioner claims that the other members of his family obtained British citizenship. This did not seem to be doubted by the respondent. Having been granted indefinite leave to remain he claims that he saw no need to do so. At some point after 1 January 1973 his Pakistani passport was endorsed with those words.
[4] Certain more recent circumstances are clearly established. Around January 2012, having reported the loss of his passport to the police, he was issued with a replacement from the Pakistani embassy. His requests to the Home Office to issue a replacement stamp vouching indefinite leave to remain were refused. By letter dated 10 October 2013 from Capita Business Services (acting on behalf of the Home Office), he was informed that he was liable to be removed from the United Kingdom. He then consulted his solicitors who ingathered various forms of support for his application and forwarded these to the Home Office.
[5] By the time of the hearing before me the respondent was prepared to accept certain aspects of the petitioner’s history, although her position has been evolving over time. In particular, the respondent now accepts that the petitioner was settled in the United Kingdom at the entry into force of the Immigration Act 1971, with the consequence that he is to be treated as having acquired indefinite leave to remain from 1 January 1973. The remaining concern on the part of the respondent relates to the extent to which the petitioner has been living in the United Kingdom since 1991.
[6] As a result of the Immigration (Biometric Registration) Regulations 2008, a person making an application to replace a passport stamp indicating indefinite leave to remain must apply for the issue of a biometric immigration document. The endorsement which would be attached to that document is now termed “No Time Limit”.
[7] The reason for the respondent’s refusal to provide the petitioner with such an endorsement is clear from the history of documentation stretching back to 10 December 2012. On that date the petitioner was written to informing him that the UK Border Agency was unable to confirm that he had ever been granted indefinite leave to remain and this was given as the explanation for refusing his application. He was, however, informed that if he was able to provide evidence that he had been continuously resident in the United Kingdom from 1972 the decision might be reconsidered.
[8] After further discussion, the petitioner’s solicitors wrote to the UK Border Agency on 26 February 2014 enclosing documents and other information and making a further request on his behalf. There then followed a series of letters from the Home Office in which various stipulated documents were requested, and then, in letters dated 8 October 2014, 24 February 2015 and 28 July 2015, the Secretary of State’s decision was explained.
[9] In those letters the petitioner was informed that since he had been unable to demonstrate that he had been continuously resident in the United Kingdom, the Secretary of State was not satisfied that he was entitled to an endorsement. In the last of those letters it was conceded that an error had been made in requiring any vouching of residence prior to 1988 but it was reiterated that there remained considerable gaps in the periods in which the petitioner could demonstrate continued residency:
“which is required to be satisfied prior to the issuing of the NTL stamp”.
[10] This correspondence culminated in a further letter dated 1 September 2015, in which the petitioner was informed that he had no lawful basis to remain in the United Kingdom, that he should leave as soon as possible, that he may be prosecuted if he did not do so and that he may be removed from the country.
The petitioner’s immigration status
[11] The legislative provisions which govern the status of persons with the petitioner’s history began with the introduction of the Immigration Act 1971 and have been marked by complexity and regular change thereafter. There was, however, no dispute as to the present position. The petitioner was settled in the United Kingdom prior to the introduction of the 1971 Act and, by virtue of section 1(2), fell to be treated as having acquired indefinite leave to remain as from the commencement of that Act.
[12] The circumstances in which the petitioner’s indefinite leave to remain will be lost are now governed by the Immigration (Leave to Enter and Remain) Order 2000. Article 13, paragraphs (1) and (2), provide that for the purposes of the Order “leave” means leave to remain in the United Kingdom and that leave which is in force does not lapse on a person going to a country outside the common travel area. For the purposes of this case the important provision is paragraph (4), which provides as follows:
(4) Leave which does not lapse under paragraph (2) shall remain in force either indefinitely (if it is unlimited) or until the date on which it would otherwise have expired (if limited), but –
(a) where the holder has stayed outside the United Kingdom for a continuous period of more than two years, the leave (where the leave is unlimited) or any leave then remaining (where the leave is limited) shall thereupon lapse;”
[13] It was therefore accepted that unless the petitioner’s leave to remain had lapsed by virtue of absence from the United Kingdom for a continuous period in excess of two years, he would be entitled to the endorsement sought.
The petitioner’s application
[14] The petitioner’s account is that all of his family utility bills and the like have always been in his wife’s name. He does not have records from any of the places in which he worked and has a poor memory. He did though provide information of various different types in support of his application. He produced a brief affidavit setting out his family history and deponing that he had only ever left the United Kingdom for two short family related trips to Pakistan. He produced his marriage certificate and the birth certificates of his children. He produced the death certificate of his daughter vouching that she died in Edinburgh in 2006 and that he was the informant. He produced a letter from the owner of a well-known Edinburgh restaurant vouching that he had been employed by him, in different establishments, between 1979 and 1982, and again between 1986 and 1991. He produced letters from Edinburgh City Council from 2001 which suggested that he worked in an Edinburgh restaurant at that time. He produced a letter from an accountancy services firm, quoting his National Insurance Number, which vouched that he was employed in another restaurant between October 2010 and January 2012. He produced a letter from Lothian and Borders Police vouching the reported loss of his passport in January 2012. He produced letters from family and friends vouching that he lived in Edinburgh and that he had lived in the United Kingdom for many years. He produced a letter from a firm of solicitors who had represented him in 2006 in relation to a driving offence committed in 2005.
[15] In later correspondence the petitioner’s solicitors forwarded documentation which they had obtained dating back to the 1960s and 1970s concerning his schooling, social work care and juvenile court proceedings. The petitioner subsequently produced a more detailed affidavit for consideration by the respondent.
[16] No material has been identified by the respondent to suggest that the petitioner has ever left the United Kingdom since his arrival in 1967.
Petitioner’s submissions
[17] The first submission for the petitioner was based on the decision in R (Alvi) v Secretary of State for the Home Department [2012] 1 WLR 2208. Since there was no provision in the Immigration Rules or in the Immigration Act 1971 for a No Time Limit endorsement, then the criteria which determined whether an endorsement would or would not be granted were to be found in the application form which was specified for use, in the guidance for applicants and in the policy guidance which had been promulgated by the Secretary of State.
[18] It was submitted that the criteria within these documents were to be seen as being in the nature of rules to be followed in the administration of the Immigration 1971 Act in regulating the control of entry into and stay in the United Kingdom of persons required by that Act to have leave to enter. In Alvi the Supreme Court held that everything which was in the nature of such a rule required to be laid before Parliament and ought to be contained within the Immigration Rules. The application of the decision in Alvi meant that, having failed to include any criteria within the Immigration Rules, or to lay any of the documents mentioned before Parliament, the decision taken in compliance with the requirements specified in the documents mentioned was unlawful.
[19] A more restricted submission based upon the decision in Alvi was also advanced. The basis of this submission was that the policy guidance issued to decision makers made it plain that only documentary evidence was to be considered. This, it was said, was reflected in the terms of the letter from the Home Office dated 28 July 2015, in which reference was made to the outstanding periods for which the petitioner had failed to demonstrate continuous residency. Counsel for the petitioner drew attention to the sentence which read:
“We acknowledge that your client has attempted to account for these by way of a signed affidavit however, this is not sufficient for the purpose of this application.”
[20] The policy guidance and the terms of this letter were said to disclose the presence of a substantive requirement as to the type of evidence which an applicant in the petitioner’s position required to submit. It could be seen that the respondent was only prepared to consider documentary evidence, rather than, for example, information contained in an affidavit. It followed that in this way the Secretary of State could be seen to have had adopted a practice in the nature of a rule to be followed in the administration of the 1971 Act in regulating the control of entry into and stay in the United Kingdom of persons required by that Act to have leave to enter. Having failed to lay any such requirement before Parliament the decision taken in compliance with this practice was unlawful.
[21] The petitioner’s second submission was that it was plain from the terms of the application form and the No Time Limit policy guidance, as well as from the content of the various letters sent from the UK Border Agency, that the respondent was only prepared to consider documentary evidence rather than the content of the affidavit provided by the petitioner. Even if this approach did not constitute a rule for the purposes of applying the decision in Alvi, it was submitted that the respondent was imposing a requirement for documentary evidence without having regard to the individual circumstances of the petitioner’s case. By doing so she had fettered the wide discretion given to her and could be seen to have acted in an unlawful manner.
[22] Lastly, the petitioner submitted that the respondent had applied the wrong test in determining whether or not to grant an endorsement and, furthermore, had approached the matter wrongly by placing the onus of establishing that leave had not lapsed on the petitioner.
Respondent’s submissions
[23] The respondent submitted that the decision to refuse a No Time Limit endorsement was not one which fell within the scope of the decision in Alvi, since it was not a decision as to whether the petitioner should be given leave to enter or to remain in the United Kingdom. In any event, the policy guidance promulgated by the Secretary of State which had been applied was not something in the nature of a rule. In requiring the petitioner to provide information to vouch his residency the Secretary of State was not imposing an additional requirement on the petitioner but was undertaking a check on his application, in the nature of the approach which had been approved of in R (Global Vision College Limited) v Secretary of State for the Home Department [2014] EWCA Civ 659.
[24] It was accepted that the Secretary of State’s obligation was to decide each individual case according to the applicant’s circumstances. This had been done and the policy guidance expressly stated that a decision was to be made on the evidence available. As was plain from the correspondence, the affidavit provided by the petitioner had not been discounted but had been judged insufficient in its content for the purposes of the application. There was therefore no force in the submission that the respondent had fettered her discretion.
[25] The suggestion that an error had been made in the application of the correct test was rejected and, even if there had been such an error, it was submitted that it was of no consequence in the circumstances of the petitioner’s case. Lastly, it was submitted that it was correct to treat an applicant such as the petitioner as bearing the burden of establishing that leave to remain had not lapsed.
Discussion
The Alvi point
[26] The case of Alvi concerned the import of section 3(2) of the Immigration Act 1971 which provides:
“The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality).
If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid).”
[27] Before considering whether the Secretary of State has adopted anything in the nature of a rule or rules to be followed in considering the grant of a No Time Limit endorsement, I require to determine whether the decision to refuse that endorsement is of a type which falls within the ambit of this section of the Act.
[28] As mentioned above, counsel for the respondent’s contention was that only a decision determining leave to enter or remain fell within the scope of this section. In my view counsel for the petitioner’s submission is to be preferred on this point. It is correct to observe that in Alvi the Supreme Court emphasised that the section applied to any requirement which a migrant had to satisfy as a condition of being given leave to enter or remain. I agree though with counsel for the petitioner that these comments arise in the context of the facts under discussion in that case. As Lord Hope of Craighead said at paragraph 41:
“What section 3(2) requires is that there must be laid before Parliament statements of the rules, and of any changes to the rules, as to the practice to be followed in the administration of the Act for regulating the control of entry into and stay in the United Kingdom of persons who require leave to enter. The Secretary of State’s duty is expressed in the broadest terms.”
[29] In my view, counsel for the petitioner was correct in submitting that the decision taken concerning the petitioner’s application was a decision which regulates his stay in the United Kingdom. Apart from anything else, this would seem to be the obvious conclusion to draw from the fact that, having refused to grant the endorsement, the Secretary of State wrote to the petitioner telling him that he had no lawful basis to remain in the United Kingdom and was liable to be prosecuted and removed.
[30] I now turn to the question of how to interpret the content of the documentation and policy guidance to which attention has been drawn. The Supreme Court observed that a difficult question of interpretation was raised by the question of what is a rule as to the practice to be followed in the administration of the 1971 Act. However, as noted above, it was observed that the Secretary of State’s duty under the subsection was expressed in the broadest terms and their Lordships concluded that any requirement which a migrant had to satisfy as a condition of being given leave to enter or remain was a rule within the meaning of section 3(2). They also stated that the question of whether or not material in an extraneous document is a rule, or a change in the rule, is something which would have to be determined on the facts of each case.
[31] In the context of the present case, the guidance issued to applicants such as the petitioner stated that indefinite leave status will have been retained:
“Provided you can show that you have resided continuously in the UK”
[32] It is also correct to state that the application form which the petitioner required to complete was one which was specified in accordance with paragraph 34 of the Immigration Rules for the purposes of those Rules. Section 6 of that form, headed “Documents”, states that an applicant must provide evidence of continuous residence in the UK. In my view these comments require to be read in the context of the whole documentation and in light of what Lord Hope said at paragraph 63 of Alvi:
“The Act itself recognises that instructions to immigration officers are not to be treated as rules, and what is simply guidance to sponsors and applicants can be treated in the same way.”
[33] With this advice in mind it seems to me that what is said in the guidance to applicants and in the application form itself is of secondary importance. It is the policy guidance document promulgated by the Secretary of State which is the most important of the items under consideration for present purposes. At page 5 of that document the key facts for no time limit cases are listed. It is there made plain that the eligibility requirement is that the applicant has not been absent from the UK for a continuous period of more than two years since indefinite leave was granted. This correctly reflects the test set out in the Immigration (Leave to Enter and Remain) Order. The correct test is repeated at page 6 of the guidance, in the section which explains that the decision maker must check that the applicant has not lost their indefinite leave status.
[34] In my view, the critical section of the policy guidance is found at page 21, under the heading of: “Proof of residence in the UK”. This is the guidance which specifically addresses the situation of an applicant who cannot submit a previous passport. In this passage the decision maker is instructed to request additional evidence of residence in the UK and examples of types of documentation which might evidence residency are given. This passage concludes with the following instruction:
“This list is not exhaustive. If the applicant is unable to provide this evidence, you must make a decision based on the evidence available.”
[35] The decision which is to be made based on the evidence available must be a decision as to whether or not the applicant has lost their indefinite leave status. The earlier guidance makes it plain that this will only occur if the applicant has been absent from the UK for a continuous period of more than two years. It seems clear therefore that the guidance instructs that this decision is to be made on the basis of whatever evidence has been made available.
[36] In my view a proper understanding of the policy guidance promulgated makes it clear that the Secretary of State has not adopted anything in the nature of a rule as to the practice to be followed in determining whether or not to grant a No Time Limit endorsement. The question which has to be determined is whether or not an applicant’s indefinite leave to remain has lapsed. That question is to be decided according to the test set out in the Immigration (Leave to Enter and Remain) Order, which has had parliamentary approval. The documentation founded upon by the petitioner, taken in its whole context, constitutes information, advice and guidance as to how the test in the Order may be assesed in particular cases.
[37] I also agree with counsel for the respondent that the content of the documentation under discussion does not support a contention that the Secretary of State has introduced a rule to the effect that only documentary evidence can be considered in support of an application of this sort. It is obvious that documentation will be an ordinary method of vouching residency. I agree though that it is plain from the terms of page 21 of the policy guidance that, in addition to considering other forms of documentation beyond the list provided, the decision maker is instructed to consider any form of evidence provided. As I understood her, counsel for the respondent made it plain in her submissions that the Secretary of State will give due consideration to information provided in the form of an affidavit or otherwise.
[38] It therefore follows, in my view, that the requirement specified in the case of Alvi has no application to the circumstances of the present petition.
[39] For the same reasons as I have just given, I also conclude that there is no force in the contention that the Secretary of State has unlawfully fettered her decision.
Onus
[40] Senior counsel for the respondent submitted that, in the context of the application made by the petitioner, the onus was on him to establish that he was entitled to the grant of a No Time Limit endorsement. That meant that he required to establish that his leave had not lapsed. By way of contrast, counsel for the petitioner submitted that in the circumstances which were established, an onus had passed to the respondent of proving that his leave had lapsed. Counsel for the respondent sought to vouch her submission by stating that as a matter of principle in all immigration cases the onus of proving his claim lies on the claimant.
[41] I accept that there are circumstances in which the burden of establishing a particular state of affairs falls upon an applicant, there are also circumstances in immigration law where the burden of establishing something lies upon the Secretary of State. Where the Secretary of State asserts a particular state of affairs, for example that a document produced by an applicant is a forgery, the burden will be on the Secretary of State to prove this. It seems to me that the extent to which onus is relevant in the present circumstances, and if so how it impacts, may be a less straightforward question than was acknowledged by the respondent.
[42] Any consideration of onus in the context of the petitioner’s application focuses attention on the terms of article 13(4) of the Immigration (Leave to Enter and Remain) Order. The import of that provision, when taken along with the Secretary of State’s concession that the petitioner was settled in the United Kingdom at the entry into force of the 1971 Act, is that his leave shall (my emphasis) remain in force indefinitely. For present purposes, the only circumstance in which that can change is if he has (my emphasis) stayed out of the United Kingdom for the requisite period, not that he may have. It therefore seems to me that the petitioner is a person who already has acquired a particular status, he has acquired leave which shall remain in force indefinitely. He is not a person who is seeking a status. Neither is he someone who is seeking to establish an exemption. Why then, one might ask, should the burden of proving a negative, namely that he has not stayed out of the country for the requisite period, fall on the petitioner? There is nothing in the language of the Order which suggests the existence of a burden on the beneficiary of leave to establish that his leave has not lapsed.
[43] Whilst the trigger for the respondent’s interest in the petitioner was his application for an endorsement on his new passport, there is no connection in the Order, or anywhere else, between lapse of leave and this sort of application. If the respondent’s contention is correct, it would therefore appear that anyone who has acquired indefinite leave to remain could be called upon at any time to establish that their leave has not lapsed, with, presumably, similar consequences to those which befell the petitioner if they cannot do so in the manner required by the respondent.
[44] Some assistance in assessing the correct approach to the issue of onus might be gained by taking account of some other guidance. Article 13 of the Immigration (Leave to Enter and Remain) Order also contains provisions affecting individuals holding indefinite leave to remain who are returning to the United Kingdom after short periods of absence. MacDonald’s Immigration Law and Practice, at paragraph 4.28, points out that such residents may have their leave to remain cancelled by reference to a change in their circumstances, but that the onus is on the immigration officer to justify cancelling leave. In keeping with these comments, Chapter 1, section 3 of the Immigration Directorates’ Instructions applies to returning residents. Paragraph 2 provides as follows:
“Prior entry clearance is not mandatory when a person is seeking admission to resume his residence within 2 years of his embarkation and it will not normally be necessary to make any further enquiries unless there is substantial evidence to doubt the person’s true intentions or his entitlement to residence status.”
[45] This seems to make it plain that whilst a returning resident can be refused entry, there is no onus on him to establish that his entitlement remains in force. The language used, as well as the emphasis, makes it plain that the immigration officer must be aware of compelling evidence contradicting the resident’s claim to be entitled to entry.
[46] Annex P of Chapter 1 section 3 provides refusal formulae. The suggested terminology for refusing entry to a returning resident if it is established that he has been away from the United Kingdom for more than two years is this:
“… but I am satisfied that you have been away from the United Kingdom for more than 2 years and, having considered the circumstances of your case, I am not prepared to exercise discretion in your favour.”
[47] This instruction is in keeping with the analysis just set out and demonstrates that, in this situation, the question is not what the returning resident can establish but whether there is a basis upon which immigration officer can properly conclude that the resident has in fact been absent from more than two years and what the basis of such a conclusion is.
[48] In discussion before me there was no substantial analysis of the question of onus. Nor was there any discussion of the standard to which it was said that the petitioner might have to establish his claim. All that was really said on behalf of the respondent was that it would be impractical for the Secretary of State to demonstrate that the petitioner had been absent. It is equally obvious though that the practicalities of establishing continuous presence may be demanding. In the context of this discussion counsel for the respondent explained to me that a comprehensive system to compile a record of those leaving the United Kingdom had only been put in place very recently. In previous years a system of landing cards was in place, through which a record of those entering the United Kingdom was kept. Upon a recent check of that system the records were found to be incomplete but no record of the petitioner’s arrival in the country could be identified. Since it is accepted that the petitioner is presently in the United Kingdom, one might think that this absence of any record of arrival over a period of recent years could tend to lend some support to the petitioner’s contention that he has not left the country in twenty years. However, as I understood it, the check in the landing card system had only taken place recently as part of the preparation for the defence of the present case and had played no part in the decision to refuse endorsement.
[49] I recognise that in determining whether or not to grant an application of the present sort the respondent will need to decide whether the applicant’s indefinite leave to remain has as a matter of fact lapsed. That does not seem to me to be the same process as requiring the applicant to demonstrate that it has not, and in particular it is not the same as requiring him to do so by providing evidence of continuous residence over many years. To require this of an applicant is to pass the whole burden onto him and to focus only on the question of whether it has been shown that leave has not lapsed, rather than on the correct question of whether it can be decided that leave has in fact lapsed. Since the petitioner has already crossed the hurdle of acquiring indefinite leave to remain, I doubt whether onus of proof, in the strict or ordinary sense, is a particularly helpful way of deciding whether leave has in fact lapsed. In the end of the day I was left with the impression that the question of onus may not have been comprehensively canvassed before me. Since hearing submissions the decision of the Upper Tribunal (Immigration and Asylum Chamber) in the case of SM and Qadir v Secretary of State for the Home Department (ETS – Evidence – Burden of Proof) [2016] UKUT 00229 (IAC) has been promulgated. A detailed analysis of the import of both evidential and legal burdens was undertaken in that case and a reading of the report reinforces the lingering concern I have about whether the issue has been properly developed in the present case. Whatever the proper position is though, in the present case I am satisfied that the matter is not so one sided as contended for by the respondent. I am also satisfied that the respondent’s rigid focus on what is required of the petitioner is misplaced and has led to a clouding of the correct decision making process.
The respondent’s consideration of the petitioner’s application
[50] As noted above, the petitioner’s indefinite leave to remain, granted under the Immigration Act 1971, can only lapse in the circumstances provided for by article 13(4) of the Immigration (Leave to Enter and Remain) Order.
[51] That Order makes it plain that it is not continuous residence in the United Kingdom which matters, but absence for a continuous period of more than two years. In the petition itself at paragraph 20, and in the petitioner’s note of argument at paragraph 34, it is submitted that the import of this provision is that indefinite leave would be preserved by presence in the United Kingdom for one day in each two-year period. In oral submissions counsel for the respondent acknowledged that this was correct.
[52] I have some doubts as to whether the matter is quite as straightforward as that. The Immigration Directorate Instructions at Chapter 1, section 3, paragraph 2.2, provide that a person who is returning only for a limited period (eg. as a visitor) simply so as to show a period of residence in the United Kingdom within two years of departure should not be readmitted.
[53] Nevertheless, it is plain, as counsel for the petitioner submitted, that the relevant continuum is absence from the country rather than residence. It is also correct to observe that, on a proper understanding, indefinite leave to remain, once obtained, is more easily preserved than would be the case if it was dependent upon continuous residence within the United Kingdom.
[54] Each of the letters from the UK Border Agency explaining the respondent’s decision asserts that continuous residency requires to be established before a No Time Limit endorsement can be given. This is in keeping with the quote from the guidance note provided for the use of applicants as set out in paragraph [31] above. This guidance also explains that applicants should provide as many documents as possible to show that they have continued to reside in the United Kingdom since January 1973.
[55] In addition to the letters written on behalf of the respondent to which I have already referred, a further letter was produced by the respondent shortly prior to the substantive hearing. Although undated, this was apparently written on 8 January 2016. It conceded that a further error had been made in applying the historical legislative framework, with the result that it had been incorrect to require vouching of residence prior to July 1990. The author however repeated the explanation that, since the petitioner had been unable to demonstrate continuous residence since being granted settled status, or at least throughout the period of 1991 to 2011, the Secretary of State was not satisfied that he was entitled to an endorsement, and for this reason the application had been refused.
[56] I readily recognise that proof of continuous residence would be one method of demonstrating that the petitioner had not stayed outside the United Kingdom for any continuous period of more than two years. As discussed above though, continuous residence is not the method by which indefinite leave is protected. To consider only the question of continuous residence is, in my view, to apply the incorrect test and to apply a stricter test than provided for by the Immigration (Leave to Enter and Remain) Order.
[57] Senior counsel for the respondent was not able to point to anything within any of the correspondence which might suggest that the correct test had been applied. She argued though that any error which may have been made was not material. All that had happened, it was said, was that the Secretary of State had responded to the claim as made by the petitioner. Even now, it was said, the information provided by him left large gaps in time which were unaccounted for.
[58] In my judgement it is clear that the respondent has applied the test of continuous residence to the application made by the petitioner. To say that she simply responded to the petitioner’s claim of continuous residence ignores the fact that this is what the guidance for applicants requires.
[59] Secondly, regardless of how the petitioner sought to demonstrate that his leave had not lapsed, the respondent’s obligation was to assess the information provided in light of the correct test.
[60] The importance of being seen to have applied the correct test becomes clear when one understands the circumstances of what I referred to in paragraph [5] above as the respondent’s evolving position. It should be remembered that the respondent’s first position was that the petitioner was not entitled to an endorsement, as she had no record of him ever being granted indefinite leave to remain. It seems only to have been through the efforts of the petitioner’s solicitor in obtaining information to vouch his presence in this country in the 1960s that the respondent was prepared to accept that he had the benefit of section 1(2) of the Immigration Act 1971.
[61] Next, it seems only to have been as a consequence of the letter written by the petitioner’s solicitors dated 27 July 2015, in which an analysis of some of the changes in the legislation was undertaken, that the respondent was prepared to concede that there was no question of leave lapsing as a consequence of departure from the United Kingdom prior to 1988. Up until then the suggestion had been that the petitioner required to prove continuous residence from 1976 onwards. The undated letter referred to in paragraph [55] seemed to demonstrate that the respondent’s up-to-date position was that evidence of continuous residence from 1991 was what was now required.
[62] The respondent’s regularly changing requirements are not apt to instil confidence that those making the decisions have properly informed themselves as to the correct criteria. It is when one sees the unsatisfactory way in which the petitioner’s application has been dealt with that the interplay between onus of proof and consideration of the correct question becomes even important.
[63] The only reasonable interpretation to draw from the content of the letters sent to the petitioner is that the respondent has concentrated throughout solely on the question of whether the petitioner has established continuous residence throughout all of the periods in which she has been interested from time to time. It seems plain, for example, that she has never sought to assess whether the documentation which does establish, or goes to establish, presence in the United Kingdom at various times, casts any light on the question of whether she can conclude that he was in fact absent for a continuous period in excess of two years, either before or after these vouched periods of presence.
[64] Equally, it seems plain that she has not considered whether or not to view the petitioner’s account of continuous presence, as given in his affidavits, or the accounts of others as to his continued presence in the United Kingdom, in a more favourable light in view of his ability to demonstrate certain periods of presence. Finally, but perhaps of particular importance, the respondent has not taken stock of the combined import of the information provided by the petitioner in light of her recent appreciation that she has no record in the landing card system of his entry into the United Kingdom at any point throughout the last twenty years.
[65] In light of the analysis set out in paragraphs [40] to [49] above, I am satisfied that counsel for the respondent was wrong to assert that the onus was on the petitioner to vouch that his leave had not lapsed. For the reasons which I have set out, I consider that to state this proposition so starkly is an oversimplification of what ought properly to be a more nuanced approach. I am also satisfied that the respondent has not considered the proper question at any stage in this evolving process and I am satisfied that she has not weighed what the preponderance of the information provided by the petitioner tends to establish about absence from the United Kingdom for any continuous period of two years.
[66] Paragraph 3 of the petition explains that the petitioner seeks declarator that the petitioner has retained his settled status in addition to reduction of the decisions of the Secretary of State of 8 October 2014, 24 February 2015 and 28 July 2015. In my view the only question for me is whether or not the decision made by the respondent was lawful.
[67] For the reasons which I have given I am satisfied that it was not and I will grant decree of reduction, with the consequence that the decision will require to be remade by the respondent. I agree with counsel for the respondent that it is not for me to form a view as to the conclusion to be drawn from the information provided by the petitioner, nor is it for me to grant decree of declarator on the basis of that material.
[68] I will therefore uphold the second limb of the petitioner’s second plea in law and I will reserve meantime the question of expenses.