Ruth Awa was temporarily unlawfully present in the UK during a period between March 2016 and August 2017. She argued that the Secretary of State for the Home Department had failed to take into account the circumstances of the interruption to her lawful residence period, which resulted from a letter not being received by her solicitors.

The case was heard in the Outer House of the Court of Session by Lord Glennie.

Letter never received

The petitioner first entered the UK on a student visa in September 2006. She was granted further leave to remain after the expiry of her original visa under the Fresh Talent – Working in Scotland Scheme, and then again by a new Tier 4 visa valid until the end of January 2014.

On 16 March 2016 the petitioner, who had by this time married and had a son born in the UK, applied for 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 application but sent a letter in May 2016 asking for further evidence from the petitioner due to some mandatory sections not being completed.

Solicitors for the petitioner denied having ever received the letter. It was not in dispute that had the March 2016 application been granted the petitioner would not have been regarded as an overstayer during the relevant period.

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

Following a fresh application, the Home Office granted the petitioner further leave to remain dating from 25 August 2017 only. The effect of not backdating the grant of leave resulted in the period of unlawful residence given as the reason for not granting ILR.

It was submitted for the petitioner that, while the respondent was entitled to form the view that she had not shown a period of 10 years’ lawful residence in the UK, she had failed to take into account the fact that there was no difficulty with the petitioner’s March 2016 application on its merits. What went wrong was that the Home Office letter of May 2016 had not been received by her solicitors, and in the ordinary course of events the application would have been granted.

Unfortunate mishap 

In his opinion, Lord Glennie accepted that the original Home Office letter suggested the March 2016 application would likely have been granted, saying: “Whether or not the Home Office has a practice of sending out a letter pointing out basic mistakes in the application, it is plain that they would not do so in a case where they considered that the application was likely to be refused once the missing material was provided and the defects in the application made good. There would be no point.”

Noting that the issue was “relatively straightforward” despite the complex factual background, he explained: ”The interruption to the petitioner’s 10 years continuous lawful residence in the UK resulted from an unfortunate mishap. Those circumstances were known to the Secretary of State, at latest when the point was made to her after her initial rejection of the petitioner’s application by letter of 15 January 2020. She had the opportunity at that stage to reconsider her decision. Instead of that she took a stand on the issue of the letter being ‘deemed’ served on the petitioner.”

He continued: “Her focus was, as explained in the written submissions lodged on her behalf, on justifying her own actions. That was not the right approach. What she ought to have been looking at was how the situation had arisen in which, by mischance, and through no fault of either party, steps were not taken back in May 2016 which would then have resulted in the petitioner being granted a further period of limited leave to remain.”

Addressing submissions for the respondent, he said: “While I understand why the respondent raised the issue of mora, taciturnity and acquiescence, it seems to me that that plea misunderstands the crux of the petitioner’s argument. Her argument proceeds on the basis that the decision which the Secretary of State had to take in January 2020 had to be taken against the background of what had happened in 2016 and 2017. There is no suggestion by the petitioner in this case that those decisions in 2016 and 2017 were wrong, either as a matter of law or as a matter of discretion.”

For these reasons, the petition was granted and the decision of the respondent to refuse the petitioner’s ILR application was reduced.