In the case of MD (Jamaica) & Anor v Secretary of State for the Home Department [2010] EWCA Civ 213 the Court of Appeal has dismissed two appeals against refusals under the long residence immigration rules.

In both cases the immigrants had short gaps in their lawful residence and had been refused under the ten years rule. One of them had a gap of just 38 days on one occasion. The Court followed a strict interpretation of the rules and also dismissed the appeals under Article 8, upholding the decisions of the tribunal below.

This is not the first time long residence has featured on this blog and in recent case law. UKBA have been changing their approach to the rules quite significantly over the last few years, scrapping a fairly generous policy then re-introducing a less generous version of it more recently. However, the Court of Appeal is quite clear: the rules mean what they say and to succeed under the rules the residence must be continuous and lawful.

For ease of reference, the current policy on the limited circumstances in which these strict requirements will be waived is as follows in the IDIs at chapter 18 section 2.3.3:

Breaks in lawful residence and the use of discretion

Caseworkers should be satisfied that the applicant has acted lawfully throughout the entire period and has made every attempt to comply with the immigration rules.

If an applicant has a single short gap in lawful residence through making one single previous application out of time by a few days (not usually more than 10 calendar days out of time) caseworkers should use discretion granting ILR, so long as the application meets all the other requirements.

It would not usually be appropriate to exercise discretion when an applicant has more than one gap in their lawful residence due to submitting more than one of their previous applications out of time, as they would not have shown the necessary commitment to ensuring they have maintained lawful leave throughout their time in the UK.

It may be appropriate to use your judgment in cases where an applicant has submitted a single application more than 10 days out of time if there are extenuating reasons for this (e.g. postal strike, hospitalisation, administrative error on our part etc). This must be discussed with a Senior Caseworker.

Examples of use of discretion:

The following examples illustrate some instances in which it may/may not be appropriate to exercise discretion. Please note this is not an exhaustive list of scenarios and each application should be judged on its own merits and discussed with a Senior Caseworker.

1. An applicant has a single gap in their lawful residence due to submitting an application 7 days out of time. All other applications have been submitted in time throughout the 10 years period. Because the applicant has a single gap and submitted their application less than 10 days out of time, discretion would normally be appropriate.

2. An applicant has 3 gaps in their lawful residence due to submitting 3 separate applications out of time. These were 12, 4 and 8 days out of time respectively. Because the applicant has more than one gap in lawful residence due to submitting more than one application out of time, discretion would not normally be appropriate.

3. An applicant has a single gap in their lawful residence due to submitting an application 24 days out of time. The applicant has however produced a letter from their consultant stating that they were hospitalised during this period. Even though the applicant submitted their application more than 10 days out of time, they have proved that there were extenuating circumstances and have endeavoured to maintain lawful residence throughout the rest of the 10 years period, discretion would normally be appropriate.