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An Application Cannot be Made Under the Long Residence Rule for Only Limited Leave to Remain in uk the court held
This case was heard on 9th November 2010 at Filed House. The appellant is a Bangladeshi national who arrived in the UK on 1st August 2000 with a student visa. He applied for successive extensions of leave to remain in the UK which were all granted. His final grant of leave was until 31st October 2008. He then applied for a variation of leave to remain under the Tier 1 post study work route. His application was refused on the basis that he had provided a false document (a postgraduate certificate in Business Management). He therefore fell foul of paragraph 322(1A) of the immigration rules which provides for refusal where false representations, documents or information have been used in relation to an application for a variation of leave to remain. The appellant attended the hearing before the First Tier Tribunal on 15th January 2010 stating that he could not take his exams due to bereaving the loss of his father who had passed away at the time. The appellant admitted to purchasing a false certificate at the cost of £1500 and submitting this with his application. He argued that his wife and five year old son were also in the UK, studying and that he would like the opportunity to complete his studies in the UK before returning to Bangladesh. He expected to finish his studies in October 2010 whilst his wife's leave did not expire until February 2011. The immigration judge dismissed the appeal under the immigration rules and refused to consider Article 8 on the basis that it had not been raised.
The appellant sought permission to appeal to the Upper Tribunal arguing that Article 8 had in fact been raised in the grounds of appeal as well as the appellant's statement which was said to constitute the statement of additional grounds under section 120 of the Nationality, Immigration and Asylum Act 2002. Reference was made to the authority in AS (Afghanistan) and NV (Sri Lanka) EWCA Civ 1076 which provided that there is no time limit for serving a statement of additional grounds in response to a section 120 notice.
The Tribunal considered that whilst Article 8 was not properly or fully raised in either the grounds of appeal or the witness statement, there was an obvious article 8 human rights argument which arose at appeal and should be considered as such regardless of whether it had been raised in the grounds of appeal or not.
The case was adjourned in order for the appellant to serve a section 120 statement this time on the basis of ten years lawful residence in the UK. The respondents disputed that the appellant could succeed under the long residence requirements of the immigration rules namely, rule 276A. The respondent relied on the public policy provision contained in paragraph 276B (ii) which provides that indefinite leave to remain can be refused if this would be undesirable on public policy grounds. "Character, conduct and associations' of the appellant were all relevant in this assessment. The respondent argued that the appellant should not be allowed indefinite leave to remain as a result of his behavior. The appellant representative argued that he was no in fact, applying for indefinite leave to remain in the UK and stated instead that he was applying for an extension of leave to remain for two years under rule 276A2. The Tribunal did not accept this argument and stated that rules 276A1-4 were introduced in April 2007 for those people who would have qualified for indefinite leave to remain under the long residence rules but for the English language and knowledge of life in the UK requirement. Applicants were granted two years leave to remain to allow them to satisfy this requirement and ultimately leading to indefinite leave to remain. The rule is not simply a route to an extension of leave to remain in the UK. The appellant could not therefore assert that he could avoid the public policy proviso on the basis that he only wished to remain for two years limited leave. The Tribunal considered the one stop statement of the appellant which appeared to be inconsistent with a person who did not wish to remain in the UK.
The Tribunal concluded that the appellant blatant deception which caused a refusal under paragraph 322 (1A) of the rules was justified. The Tribunal continued to consider Article 8 of the ECHR. The appellant's wife had completed her course of study and embarked upon a new one. The Tribunal considered that the hardship would not engage article 8 and that the appellant's wife knew that her husband's immigration status was uncertain when she commenced her new course. The Tribunal concluded that it would not be disproportionate to return the appellant to his Country of origin and the appeal was subsequently dismissed.
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