(Topic/ 276 B/ 10 years lawful residence / Section 3C leave / EU law)
We are delighted that the First Tier Tribunal has allowed an appeal brought by Allan Van As on behalf of a client, which argued that the fundamental principle in UK Immigration visa system was such that it was not possible to VARY an application for leave to remain under the Rules to an application for a residence card under European Law.
The Facts of the case are that our client was a Tier 4 student who entered the UK in 2008 as a student and remained as a student and completed his studies in 2014.
Our client was unable to study further and applied to remain in the UK arguing Human Rights.
BEFORE a decision was reached, our client applied for a residence card arguing an indirect EU family member – and the UKVI then treated his Human Rights application as a ‘variation’ and refunded the first fees.
The NEW application for a residence card was then refused.
Our client then made a NEW Human rights application, and that remained awaiting a decision until he crossed the finishing line of ten years long residence and applied for indefinite leave to remain under 276 B.
The Home Office refused – arguing that the FIRST Human RIghts application had been ‘varied’ to a residence card application under EU law and as that had been refused our client had a break in lawful residence.
We appealed – and won – on the basis that ALTHOUGH the UKVI BELIEVED that they had varied the application – the facts are that in LAW (Which is what matters) it is NOT possible to vary an application from an application for a visa – to an application for a residence card under EU law.
So what did this mean for our client – Well, it meant that his FIRST Human Rights application had NEVER been decided and had run parallel to the new application (In other words the EU application for a residence card was an ADDITIONAL application, not a variation) – and therefore as the UKVI had never decided that FIRST Human Rights application our client had completed ten years.
A fantastic win for Allan Van As, and a fantastic win for our client (Judges extracts from the case below)
If you or anyone you know has been refused leave to remain and has been in the UK for a long period of time, it is VITAL to review all previous decisions – as we have helped many clients who had gone through many Solicitors, court appeals and even Judicial review – before being assessed by Allan who has found historic errors by the UKVI that have led to leave to remain being granted.
Extracts from Judgement
On the Appellant’s behalf, it was argued that an Appellant had established 10 years lawful residence because “The application of 7 May 2015 was never varied, withdrawn, voided, determined or otherwise disposed with and remains outstanding.” The skeleton argument goes on says this “9. It is noted, with some surprise, that “the Secretary of State maintains that the appellant varied his leave” by applying for an EEA Residence Card on 8 September 2015 [paragraph 8 of the Respondent’s Review, ASB 4].
However, it is well-established as a matter of law that an application under the Immigration Rules cannot be ‘varied’ to an EEA application. …..Paragraphs 34E and 34F of the Immigration Rules state: 34E. If a person wishes to vary the purpose of an application for leave to remain in the United Kingdom, the variation must comply with the requirements of paragraph 34 (as they apply at the date the variation is made) as if the variation were a new application. If it does not, subject to paragraph 34B, the variation will be invalid and will not be considered. 34F. Any valid variation of a leave to remain application will be decided in accordance with the immigration rules in force at the date such variation is made. 10. An application for a Residence Card under the EEA Regulations does not comply with paragraph 34 of the Rules; it is not an application under the Immigration Rules at all. It is therefore incapable of amounting to a variation as a matter of law, regardless of whether the language of ‘variation’ was used by the Appellant’s representatives at the time. “ 11. The Appellant’s case is that it is a well-established principle that the application for an EEA residence card is an application for confirmation of existing rights: a successful application would be declaratory of an applicant’s entitlement to remain in the UK because of a right derived under European law, and so it is not an application under the Immigration Rules.
…15. I have taken guidance from the case of R (on the application of Chaparadza) [2017] EWHC 1209 (Admin) which, although not on this specific point, considered the application of 3C, and the judgement specifically states that there can be two pending applications at the same time. In allowing the Claimant’s application, the Appeal Number: HU/02673/2020 6 Court held that since the 2011 application was not withdrawn at any stage, the asylum claim supplemented rather than supplanted the basis for the 2011 application. 16. Either there was no withdrawal of the original claim simply by virtue of the Appellant making an EEA application or it was treated as varied.
That an application under the EEA Regulations is not an application under the Immigration Rules, and therefore cannot be treated as varied, does not mean that it inevitably follows that the previous application had somehow lapsed. The 2015 application was treated as withdrawn by the Home Office and voided in their records. That the Home Office treated the human rights application as voided was an error as there was no good reason to do so; the Home Office letter specifically says it treated the solicitor’s letter as an application to vary. 17. If the Home Office argues that by accepting the refund of the Immigration Health surcharge the Appellant accepted his application was voided then in my view, this would be a gross injustice to the Appellant as the Home Office took it upon themselves to void the application, causing a technical break in the period of 10 years long residence. The Respondent’s evidence indicates that the Home Office official dealing with the correspondence decided to make a refund of the Immigration Health surcharge; there is no evidence to show that the Appellant’s solicitors made a request for the refund and that is certainly not mentioned in the Home Office evidence produced to me. 18. However since an EEA application does not have the effect of varying the 7 May 2015 application, and that application has not been determined, it remains valid and outstanding. His 3C leave continued.
Outcome
That leads to the conclusion that the Appellant has established continuous residence of 10 years.
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