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Nigerian Citizen Who Has Not Received Visa Correction Letter Has ILR Denial Canceled

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Nigerian Citizen Who Has Not Received Visa Correction Letter Has ILR Denial Canceled



Lord Glennie
Lord Glennie

A Nigerian citizen who was denied an indefinite residence permit successfully challenged the Home Secretary’s decision that there were no exceptional circumstances justifying the exercise of discretion in his favor.

Ruth awa was temporarily illegally present in the UK for a period between March 2016 and August 2017. She argued that the Secretary of State for the Interior department had failed to take into account the circumstances of the interruption of his period of legal residence, which resulted from a letter not received by his lawyers.

The case was heard in the Outer Chamber of the Court of Session through Lord Glennie.

Letter never received

The petitioner first entered the UK on a student visa in September 2006. She was granted a new residence permit after the expiration of her original visa under the Fresh Talent program – Working in Scotland, then again with a new level 4 visa valid until the end of January 2014.

On 16 March 2016, the petitioner, who was then married and had a UK born son, requested further limited leave to remain on the basis of her family and private life established in the UK. The Home Office acknowledged receipt of the request, but sent a letter in May 2016 requesting further evidence from the petitioner due to the fact that some mandatory sections were not completed.

The applicant’s lawyers denied ever having received the letter. It was not disputed that if the March 2016 request had been accepted, the petitioner would not have been considered to have exceeded the length of stay during the relevant period.

On July 5, 2016, the Home Office wrote to the petitioner again to inform her that her request had been rejected as invalid. This letter referred to a letter of “March 2016” previously sent by the Home Office, which was probably an erroneous reference to the May letter, but caused the applicant’s lawyers to focus on sending a new request.

Following a new request, the Ministry of the Interior granted the petitioner a new residence permit as from 25 August 2017 only. The effect of not backdating the granting of the leave resulted in the period of irregular stay invoked as a reason for not granting the ILR.

It has been argued for the petitioner that, although the defendant may have considered that she had not demonstrated a period of 10 years of legal residence in the United Kingdom, she had failed to take into account the fact that he there was no difficulty with the petitioner’s March 2016 request on the merits. What went wrong was that the Interior Ministry’s letter of May 2016 had not been received by his lawyers and, in the normal course of events, the request would have been granted.

Unfortunate incident

In his opinionLord Glennie admitted that the original Home Office letter suggested that the March 2016 request would likely have been granted, stating: they would not do so in the event that they considered the request to be likely to be denied. once the missing items have been provided and the defects in the claim have been repaired. It wouldn’t help. “

Noting that the issue was “relatively straightforward” despite the complex factual background, he explained: “The interruption of the petitioner’s 10 years of continuous legal residence in the UK was the result of an unfortunate incident. These circumstances were known to the Secretary of State, at the latest when it was brought to her attention after her initial rejection of the petitioner’s request by letter of January 15, 2020. At this stage, she had the opportunity to reconsider her decision. . Instead, it took a position on the issue of the “consideration” of the letter served on the Applicant. “

He continued: “His purpose was, as explained in the written submissions filed on his behalf, to justify his own actions. It was not the right approach. What she should have considered was how the situation had arisen in which, inadvertently and through no fault of one or the other party, action had not been taken in May 2016. which would then have allowed the petitioner to be granted a further period of limited leave to stay.

Addressing the Respondent’s submissions, he said: “While I understand why the Respondent raised the issue of mora, taciturnity and acquiescence, it seems to me that this plea ignores the gist of the issue. of the applicant’s argument. Her argument is based on the principle that the decision that the Secretary of State was to take in January 2020 had to be taken in the context of what had happened in 2016 and 2017. In the present case, the petitioner does not suggest that these decisions in 2016 and 2017 were wrong, whether for a question of law or a question of discretion. “

For these reasons, the motion was granted and the Respondent’s decision to deny the Grievor’s LRT request was reduced.

© Scottish Legal News Ltd 2021


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