Ex-student who was refused right to stay in UK granted judicial review
A former student has been granted a judicial review of the decision to refuse him indefinite leave to remain (ILR) in the UK.
The appellant, Mr Mungur, was a citizen of Mauritius. He had obtained a visitor visa valid from 22 March 2001 to 22 September 2001. He entered the UK as a visitor on 16 April 2001 and left on 1 September 2001 “to return to Mauritius to apply for Entry Clearance as a student”.
That application was granted on 25 September 2001 and was valid until 25 September 2003. On 5 October 2001, Mungur entered the UK again and was granted further leave to remain, first as a student and then as a work permit holder, so that he remained lawfully in the UK from 25 September 2003 until 13 July 2011.
He then became an overstayer for a period of 1,947 days until he was granted further leave to remain on human rights grounds until 8 May 2019.
On 30 May 2019, he applied for ILR on the grounds of 10 years’ continuous residence.
The secretary of state refused the application on the grounds that during the period of continuous residence, he had “left the United Kingdom in circumstances in which he had no reasonable expectation that he would lawfully be able to return” and therefore could not satisfy the requirements of the Immigration Rules.
He had also been in the past an overstayer and therefore could not satisfy the requirements of para.276B(v) of the rules.
Mungur submitted that his presence in the UK between 16 April 2001 and 16 April 2011 had been conceded to be “residence” for the purposes of the rules and that it was lawful, first by virtue of his visitor’s visa and then his student visa.
Since he was not absent from the UK for six months or more at any time during that period, his residence was also continuous. He claimed he was not debarred because, when he left on 1 September 2001, he had a reasonable expectation that he would be lawfully able to return as a student.
The Court of Appeal found in his favour and granted a judicial review.
It held that the rules did not expressly or impliedly exclude people who had been present on a visitor’s visa. All visas short of ILR were temporary and required the person to leave the UK on their expiry.
The Secretary of State did not and could not submit that the fact of his having held a visitor’s visa was of itself capable of prejudicing his application for a student’s visa. Therefore, the only relevant information before the court was that Mungur was granted his student’s visa, from which it could be deduced that he satisfied the criteria for that grant.
He had to leave the UK to make his application for his student’s visa; and there was no suggestion that his circumstances changed such that he would not have qualified for a student’s visa on 1 September 2001 but did qualify when he made his application shortly after. His expectation on 1 September 2001 that he would be granted the student visa for which he was going to apply was reasonable.
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R. (on the application of Mungur) v Secretary of State for the Home Department
Court of Appeal (Civil Division)
15 July 2021
[2021] EWCA Civ 1076
Nicola Davies LJ;
Stuart-Smith LJ;
Sir Patrick Elias