Recently, we assisted a client in obtaining an appeal decision in their favour. The matter concerned was that an Entry Clearance Officer refused her entry clearance as a returning resident. The client had spent over ten years outside of the UK after she had settled with Indefinite Leave to Remain. The Home Office contended that an Indefinite Leave to Remain may lapse if a person had spent more than two years outside of the UK.Contact our experienced immigration lawyers for successful Entry Clearance applications
Facts of the UK Indefinite Leave to Remain Returning Resident Appeal Case
The Appellant is a Japanese national, who has been married to a British national. Their child was born in the UK, hence obtained British citizenship. The Appellant was settled with Indefinite Leave to Remain in 1990. Since 2001, the Appellant’s husband has been employed overseas. As a result, the family moved outside of the UK together and have lived overseas for 13 years.
During those 13 years, the Appellant’s family visited the UK on four occasions and had not lived in their jointly owned family home for several years. In 2014, the Appellant was refused Entry Clearance under paragraph 18 of the Immigration Rules:
18. A person seeking leave to enter the United Kingdom as a returning resident may be admitted for settlement provided the Immigration Officer is satisfied that the person concerned:
(i) had indefinite leave to enter or remain in the United Kingdom when he last left; and
(ii) has not been away from the United Kingdom for more than 2 years; and
(iii) did not receive assistance from public funds towards the cost of leaving the United Kingdom; and
(iv) now seeks admission for the purpose of settlement.
The Entry Clearance Officer was not satisfied that she was a returning resident and stated that her Indefinite Leave to Remain status had lapsed some time ago, namely after two years of living overseas.
First Tier Tribunal Judgement – Successful
When the Appellant first appealed the decision, the First-tier Tribunal Judge found that the decision to refuse the Appellant as a returning resident was not in accordance with the law because the Entry Clearance Officer had failed to consider paragraph 19 of the Immigration Rules:
19. A person who does not benefit from the preceding paragraph by reason only of having been away from the United Kingdom too long may nevertheless be admitted as a returning resident if, for example, he has lived here for most of his life.
This rule essentially states that there is a discretionary power that can be exercised, such that injustice or undue hardship in similar situations may be avoided.
Upper Tribunal Judgement – Successful
In light of this decision, the Home Office lodged an appeal. According to another ruling in the Upper Tribunal, it was held that an Entry Clearance Officer’s discretionary power can only be reviewed when it has in fact been exercised. In this case, the discretionary power had not in fact been exercised. The Tribunal’s decision will be limited to a judgement that the ECO’s decision was ‘not in accordance with the law’.
The Upper Tribunal subsequently directed the Entry Clearance Officer to make a decision under the relevant Immigration Rules, which was in favour of our client.
Successful UK Immigration Entry Clearance Applications and Appeals
If you have been refused Entry Clearance, you may have appeal rights; please contact our expert immigration team to explore your options in light of the Home Office’s refusal decision. If you wish to make an Entry Clearance Application, our team of experienced and professionally qualified solicitors and barristers will be able to guide you through the process step by step and limit the possibility of failure by complying with the strict letter of the law. Please always call us for an initial case assessment even if you wish to consider other advisers.
We are based in the legal epicentre of London, just across the road from the Royal Courts of Justice in order to ensure we get the best results for our clients. We are minutes away from the Immigration and Asylum Tribunal, the Royal Courts of Justice and other central London courts.
If you need professional legal advice about submitting a successful Entry Clearance application please contact us for a case assessment on 02071830570. You can also reach us via our contact form.