The various versions of the Secretary of State’s long residence policy from 2000 to 2017, as properly interpreted, are consistent with the distinction between ‘open-ended’ and ‘book-ended’ overstayers, as described in paragraph [9] of the Court of Appeal’s decision of Hoque and Ors v SSHD [2020] EWCA Civ 1357; [2021] Imm AR 188. This interpretation is consistent with a rationality review and is capable of resulting in a ‘fair balance’ between competing interests.
A . Introduction
1. We conducted the hearings from open court at Field House, while the parties’ representatives attended via Skype for Business. The Skype link was also open to members of the public to access. We monitored the quality of the communications between the parties and us and we were satisfied overall that the parties were able to participate effectively in the hearing.
2. The applicants’ applications raised common issues relating to the respondent’s application of her long residence policy; her exercise of discretion for those applying for indefinite leave to remain, where they do not meet the long residence requirements of the Immigration Rules; the issue of proportionality, in the context of article 8 of the European Convention on Human Rights (‘ECHR’); and the respondent’s consideration of the applicants’ further submissions as fresh claims, for the purposes of paragraph 353 of the Immigration Rules.
3. As a consequence of the respondent’s refusal to treat the applicants’ further submissions as fresh claims, no statutory right of appeal arose and the challenges to the respondent’s decisions came before us as applications for judicial review. At the core of the respondent’s decisions was the common circumstance that the applicants were all ‘open-ended’ overstayers, as described by the Court of Appeal in the case of Hoque and Ors v SSHD [2020] EWCA Civ 1357; [2021] Imm AR 188 (see [9]).
4. The applicants accept that their ILR applications fell for refusal under the Immigration Rules, as now understood as a result of Hoque, but they contend that the respondent impermissibly failed to apply her own, wider policy in relation to long residence, which would otherwise result in them being granted some form of leave and so becoming ‘book-ended’ overstayers; failed to consider her residual discretion; and failed adequately to carry out a proportionality assessment for article 8 ECHR purposes. All parties accepted that it was for this Tribunal to determine the meaning of the respondent’s long residence policy.
[2021] UKUT 146 (IAC)
Bailii
England and Wales
Updated: 05 August 2021; Ref: scu.666431