“Allowable absences” for Points Based System Migrants: Hessamizar

News Zane Malik QC 24th November 2020

The Upper Tribunal dismisses the Judicial Review claim in Hessamizar v Secretary of State for the Home Department challenging the Home Secretary’s decision to refuse the Applicant’s application for indefinite leave to remain as a Tier 2 Migrant on the grounds that he had remained outside the UK for more than 180 days during each 12 consecutive month period over the last 5 years. The Applicant argued that his absences from the UK were “allowable absences” under the Home Secretary’s published guidance as he, during those absences, was working for his UK based employer in Iraq. The Upper Tribunal held that on a proper construction of the Immigration Rules, a Tier 2 Migrant must satisfy three requirements to obtain indefinite leave to remain. “First, the applicant must have spent a continuous period of 5 years lawfully in the UK”. “Second, the applicant must not have been absent from the UK for more than 180 days during any 12 month period (subject to the exceptions or periods to be disregarded)”. “Third, any absence is not an allowable absence unless it was for one of the two permitted reasons”. So far as the published guidance is concerned, the Upper Tribunal held that it, properly construed, requires a Tier 2 Migrant to “show that they have spent no more than 180 days outside the UK in any 12 month period and must justify those absences with evidence to show that they were allowable absences” and that “the only absences that are not counted towards the 180 day maximum are the ones expressly identified in the rules”. The Upper Tribunal clarified that the heading “Allowable Absences” in the published guidance “cannot be read in isolation” and that “nothing in the wording of the policy makes any express statement permitting more than 180 days allowable absence”. The Upper Tribunal concluded that “overall purpose of the provisions relating to continuity of residence” is to “restrict allowable absences to no more than 180 days in any 12 month period”. The Upper Tribunal, accordingly, dismissed the Judicial Review claim and upheld the Home Secretary’s decision.

The Upper Tribunal’s judgment is available here.

Zane Malik appeared for the Home Secretary.

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Zane Malik QC