Introduction

The case of Akter, R (On the Application Of) v. Secretary of State for the Home Department ([2021] EWCA Civ 704) addressed critical issues surrounding the application of Indefinite Leave to Remain (ILR) based on long residence in the United Kingdom. The appellant, represented by Ms. Naik QC and Mr. Sharma, sought to overturn the Home Department's refusal of her ILR application filed on 12 November 2018. This appeal pertains to the determination by Upper Tribunal Judge Owens, who previously refused the appellant permission to bring judicial review (JR) proceedings challenging the initial refusal.

Central to the case is whether the appellant maintained a continuous period of lawful residence in the UK, a requirement under Paragraph 276B of the Immigration Rules. The decision by the Respondent hinged on interpreting the appellant's immigration history and the procedural intricacies surrounding her previous leave to remain applications and subsequent appeals.

Summary of the Judgment

The Court of Appeal examined whether the appellant's proposed appeal was reasonably arguable based on the limited information available. The core issue revolved around whether the appellant had maintained continuous lawful residence in the UK, thereby satisfying the requirements for ILR under Paragraph 276B(i)(a) of the Immigration Rules.

The Respondent had refused the ILR application on the grounds that the appellant's period of lawful residence was interrupted between 13 August 2014 and 9 June 2016, totaling 665 days without valid leave to remain. The appellant contended that the decisions and subsequent grant of limited leave in June 2016 should be viewed as maintaining an unbroken chain of lawful residence.

The Upper Tribunal Judge Owens concluded that the Respondent had not withdrawn the initial decision of 24 November 2014 but had instead maintained it while issuing a new decision in May 2015 concerning removal. The Court of Appeal agreed, finding it reasonably arguable that the 11 May 2015 decision involved a reconsideration of the appellant's original application. Consequently, the appeal was allowed on a narrow basis and remitted to the Tribunal for further proceedings.

Analysis

Precedents Cited

In reaching its decision, the court referenced several key precedents that define and influence the interpretation of continuous lawful residence for ILR purposes. Notably:

• Rex v Zambrano [2011] UKSC 5: Established the principle that certain private and family life considerations can influence immigration decisions.
• Nadarajah v Home Secretary [2005] EWCA Civ 1262: Clarified the scope of reasonable expectations in immigration proceedings and the importance of consistent decision-making.
• R (on the application of Sumarji) v Secretary of State for the Home Department [2017] UKSC 50: Emphasized the need for a holistic approach in assessing grounds for refugee claims, which indirectly impacts interpretations of continuous residence.

These precedents collectively underscore the judiciary's role in ensuring that immigration decisions are fair, consider all relevant circumstances, and adhere to the principles of natural justice.

Legal Reasoning

The court's legal reasoning focused primarily on the interpretation of the appellant's immigration history and whether the Respondent's actions constituted a continuous period of lawful residence. Key points include:

• Continuous Lawful Residence: The primary legal issue was whether the appellant maintained a continuous period of lawful residence despite the lapse in valid leave to remain between August 2014 and June 2016. The Respondent argued that this period constituted a break, thereby disqualifying the appellant from ILR under Paragraph 276B(i)(a).
• Reconsideration of Application: The crux of the appeal hinged on whether the Respondent's decision in May 2015 represented a reconsideration of the appellant's original September 2014 application. The court found it reasonably arguable that the May 2015 decision did involve such reconsideration, thereby maintaining an unbroken chain of decisions influencing the appellant's status.
• Remission for Further Proceedings: Given the reasonable arguability of the appellant's propositions, the court remitted the case to the Tribunal, allowing the appellant to substantiate her claim for continuous lawful residence further.

Impact

This judgment has significant implications for immigration law, particularly concerning the interpretation of continuous lawful residence for ILR applications. Key impacts include:

• Clarification of Continuous Residence: The case provides a nuanced understanding of what constitutes an unbroken chain of lawful residence, especially in contexts involving complex procedural histories and multiple applications.
• Judicial Review Proceedings: The judgment underscores the importance of how JR proceedings are framed and the impact of Respondent actions on the continuity of lawful residence. It highlights the judiciary's role in scrutinizing administrative decisions to ensure fairness and adherence to the law.
• Policy Considerations: While the judgment is confined to the specifics of the case, it may influence future policy formulations regarding the handling of repeated or prolonged applications for leave to remain and ILR.

Overall, the decision reinforces the judiciary's commitment to protecting individuals' rights within the immigration system, ensuring that procedural nuances do not unjustly undermine lawful residence claims.

Complex Concepts Simplified

Indefinite Leave to Remain (ILR)

ILR is a form of permanent residency in the UK. It allows individuals to live and work in the UK without any time restrictions. Achieving ILR typically requires meeting specific criteria, such as prolonged lawful residence.

Continuous Lawful Residence

For ILR based on long residence, applicants must demonstrate that they have lived in the UK lawfully for a specified period (usually 10 years) without significant breaks in their legal status. A break can occur if an individual's leave to remain expires and is not promptly renewed.

Judicial Review (JR)

JR is a legal process through which individuals can challenge the lawfulness of decisions or actions made by public bodies, including immigration decisions. It is not a re-hearing of the case but a review of the decision-making process for legality, reasonableness, and procedural fairness.

Respondent

In this context, the Respondent refers to the Secretary of State for the Home Department, who is responsible for immigration matters in the UK.

Pre-action Protocol (PAP) Letter

A PAP letter is a formal communication sent before initiating legal proceedings, outlining the issues and seeking resolution without court intervention. It aims to encourage early settlement and clarify the points of dispute.

Conclusion

The Court of Appeal's decision in Akter v. Secretary of State for the Home Department serves as a pivotal reference in understanding the intricacies of demonstrating continuous lawful residence for ILR applications. By recognizing the reasonable arguability of the appellant's propositions, the court emphasized the necessity of a thorough and fair review process in immigration matters.

This judgment not only clarifies the legal standards surrounding continuous residence but also reinforces the importance of how administrative decisions and subsequent actions by immigration authorities can significantly impact individuals' immigration statuses. As immigration laws and policies continue to evolve, this case stands as a testament to the judiciary's role in upholding fairness and legal integrity within the UK's immigration system.