Personal Immigration

Acceptable evidence when applying for leave to remain on long residence grounds

In Khan, R (on the application of) v Secretary of State for the Home Department[2016] EWCA Civ 416 (04 May 2016) the principal issue that the Court of Appeal considered was whether only “official” documents were required to support an application for indefinite leave on the basis of continuous long residence or whether non-official but “independent” documents would suffice.

At the hearing it was acknowledged on behalf of the Secretary of State that a restriction providing that only “official documents” were acceptable evidence could not be defended and a statement in the decision letter that she would not consider such evidence was an error of law (paragraph 58).  

Lord Justice Beatson held at paragraph 60:

“… in my judgment, the Secretary of State was correct in not seeking to defend the part of the decision letter in which she stated that there was no evidence of residence in the UK from 1998 to 2001 because there were no official documents to this effect.”

And at paragraph 61:

“I leave aside the fact that the guidance enclosed with the letter dated 23 February 2013 appeared to concern marriage/cohabitation applications, a different type of application to Mr Khan's. I focus on what was stated in the letter itself. First, as Mr Lewis accepted, there is no authority for such a restriction in legislation or the Immigration Rules. Secondly, as recognised, for example in ZH (Bangladesh) v Secretary of State for the Home Department [2009] EWCA Civ 8 at [3], the 14 year rule set out in Rule 276B(i)(b) is specifically directed to people who have managed to stay in the United Kingdom for 14 years or more without lawful authority, and is in effect an amnesty clause. It is likely that those in the United Kingdom without leave, and therefore without status, will have no official documentation, particularly in the early period of their residence. Thirdly, although most of the documents listed by the Secretary of State can be classified as "official" in the sense that they are from institutions and not individuals, a tenancy agreement and a letter from a landlord, which are listed, are difficult to classify as "official".”

Although the case concerned an application under the old 14 years long residence rule, Lord Justice Beatson’s reasoning should apply equally to applications for leave to remain on grounds of 20 years residence under paragraph 276ADE.  Indeed, there would appear to be no reason why the first and second limbs of Lord Justice Beatson's reasoning should not also apply in relation to applications for indefinite leave to remain on the ground of 10 years long residence under paragraph 276B of the Immigration Rules.

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