Nesiama & Ors, R (On the Application Of) v The Secretary of State for the Home Department (Rev 1) [2018] EWCA Civ 1369

[2018] EWCA Civ 1369Case No C6/2017/0369
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE ALLEN
Appeal No JR/3712/2016
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14/06/18
Before
LORD JUSTICE HICKINBOTTOMLORD JUSTICE MOYLANLORD JUSTICE SINGH
Between
THE QUEEN ON THE APPLICATION OFAppellants(1) ROLI NESIAMAAppellant(2) OMATSEYE OWEYINMI NESIAMAAppellant(3) ORITSEMOYOGBEMI ORTITSETIMEYIN NESIAMAAppellant(4) ORITSEMOGHOGHBONE OMATSEYE NESIAMAAppellantTHE SECRETARY OF STATE FORRespondentTHE HOME DEPARTMENTRespondent
Amanda Weston QC (instructed by Turpin & Miller LLP) for AppellantAndrew Byass (instructed by Government Legal Department) for RespondentHearing Hearing date: 6 June 2018
Judgment Approved

Introduction

[1]Under paragraph 245CD(c) and (d) of the Immigration Rules (“the Rules”), to qualify for indefinite leave to remain (“ILR”) in the United Kingdom (“the UK”), an applicant is generally required to show that he has spent “a continuous period [of five years] lawfully in the UK…”. By paragraph 245AAA(a)(i), that is defined as being “residence in the [UK] for an unbroken period with valid leave, and for these purposes a period shall not be considered to have been broken where… the applicant has been absent from the UK for a period of 180 days or less in any of the five consecutive 12 month periods preceding the date of the application…”.[2]This appeal raises a narrow but important issue of construction as to the meaning of “residence” for these purposes. The judge below equated “residence” with physical presence. The Appellants contend that he was wrong to do so because, in determining residence, other factors such as owning property, maintaining a home, paying income tax and council tax, and other private and family connections are relevant and must be taken into account.[3]Before us, Amanda Weston QC appeared for the Appellant, and Andrew Byass for the Secretary of State. At the outset, I thank them for their respective helpful contributions to the debate.

The Law

[4]Under the points-based system (“the PBS”) of Part 6A of the Rules, paragraph 245CD (numbered paragraph 245E until 6 April 2011) sets out requirements for ILR, with the following introductory rubric:
“To qualify for [ILR], a Tier 1 (General) Migrant must meet the requirements listed below. If the applicant meets these requirements, [ILR] will be granted. If the applicant does not meet these requirements, the application will be refused.”
[5]Requirement (c), the relevant requirement for the purposes of this appeal, is as follows: “(c) The applicant must have spent a continuous period as specified in (d) lawfully in the UK, of which the most recent period must have been spent as a Tier 1 (General) Migrant…”; and, for someone in the circumstances of the Appellants, requirement (d)(ii) specifies a continuous period of five years.[6]The rule itself did not originally specify any maximum period of absence from the UK. However, the relevant policy as at 12 January 2011 (when the Appellant was first granted leave to remain as a Tier 1 (General) Migrant: see paragraph 14 below) until April 2011, namely Immigration Directorate Instructions (“IDI”) Chapter 6A: Section 1 – Settlement – Tier 1: Annex A (“the IDI Guidance”) stated as follows:
“In assessing whether or not an applicant has fulfilled the requirement to have spent five years in continuous residence in the UK, short absences abroad, for example for holidays (consistent with annual paid leave) or business trips (consistent with maintaining employment or self-employment in the [UK]), may be disregarded, provided the applicant has clearly continued to be based here. Discretion in cases where continuous residence has been broken In addition, time spent here may exceptionally be aggregated, and continuity not insisted upon, in cases where: • there have been no absences abroad (apart from those described in the paragraph above) and authorised employment or business here has not been broken by any interruptions of more than three months or amounting to more than six months in total; or • there have been longer absences abroad, provided the absences were for compelling grounds either of a compassionate nature or for reasons related to the applicant’s employment or business in the [UK]. None of the absences should be of more than three months duration, and they must not amount to more than six months in total for the whole five year period.”
It is noteworthy that, although paragraph 245CD of the Rules did not itself refer to “residence” at all, the guidance used the phrase “the requirement to have spent five years in continuous residence in the UK” to mean the requirement of paragraph 245CD(c) and (d). Discretion in cases where continuous residence has been broken • there have been no absences abroad (apart from those described in the paragraph above) and authorised employment or business here has not been broken by any interruptions of more than three months or amounting to more than six months in total; or • there have been longer absences abroad, provided the absences were for compelling grounds either of a compassionate nature or for reasons related to the applicant’s employment or business in the [UK]. None of the absences should be of more than three months duration, and they must not amount to more than six months in total for the whole five year period.”

Discretion in cases where continuous residence has been broken

[7]From 8 April 2011, Annex A was replaced by a new Annex B, paragraph 2 of which was in materially the same terms as former Annex A except that the last sentence of the second bullet point (i.e. the maximum number of days that would be allowed for absences for compassionate or employment reasons) was removed.[8]In addition, from 26 January 2011, there was parallel “Modernised Guidance”. This was shorter than the IDI Guidance, and was regularly updated. The first version (Version 1), so far as relevant, stated: “Calculating the continuous period in the UK You can ignore short absences abroad if it is clear that the applicant has continued to be based in the UK. For example, an absence for a:• holiday consistent with paid leave entitlements• business trips consistent with maintaining employment or self-employment in the UK … Discretion when continuous residence has been broken Exceptionally, you may add periods spent in the UK to form an unbroken continuous residence in cases where:• there have been no absences abroad (apparat from those described above) and authorised employment or business has been broken by:○ any single interruption of more than three months or○ interruptions that total more than six months.• there have been significant absences abroad but the reasons for these were:○ compelling ones of a compassionate nature or○ to do with the applicant’s employment or business in the UK.○ no single absence abroad should be for more than three months at a time and they must not total more than six months.”• holiday consistent with paid leave entitlements• business trips consistent with maintaining employment or self-employment in the UK Discretion when continuous residence has been broken• there have been no absences abroad (apparat from those described above) and authorised employment or business has been broken by:○ any single interruption of more than three months or○ interruptions that total more than six months.○ any single interruption of more than three months or• there have been significant absences abroad but the reasons for these were:○ compelling ones of a compassionate nature or○ to do with the applicant’s employment or business in the UK.○ no single absence abroad should be for more than three months at a time and they must not total more than six months.”

○ compelling ones of a compassionate nature or

[9]The Modernised Guidance was updated from time-to-time. The following changes are noteworthy. i) In Version 3, from 20 July 2011, for Tier 1 (Investors and Entrepreneurs) only, the following was added: “When assessing if an applicant has met the criteria for continuous residence in the UK, absences of up to 180 days in any 12 calendar months may be disregarded”. ii) In Version 5, from 19 July 2012, for all qualifying categories, the following was added: “If total of all absences exceed 180 days over the five year period, continuity will be broken”.[10]By the time of the grant of the Appellant’s further leave to remain on 17 January 2013 (see paragraph 14 below), the Rules had changed. A new paragraph 245AAA(a) was introduced by Statement of Changes HC 760 with effect from 13 December 2012. It gave the following definition, so far as relevant to this appeal: “‘continuous period of 5 years lawfully in the UK’ means, subject to [paragraph] 245CD…, residence in the [UK] for an unbroken period with valid leave, and for these purposes a period shall not be considered to have been broken where: (i) the applicant has been absent from the UK for a period of 180 days or less in any of the five consecutive 12 month periods preceding the date of the application for leave to remain, except that any absence from the UK for the purpose of assisting with the Ebola crisis which began in Africa in 2014 shall not count towards the 180 days, if the applicant provides evidence that this was the purpose of the absence(s) and his Sponsor agreed to the absence(s)…”.[11]The IDI Guidance was abandoned from the date of the implementation of the Rule (13 December 2012); but a new version of the Modernised Guidance (Version 6) was issued that day by the Secretary of State. Page 10 of the new guidance, which said it was the page “which tells you when absences will not break continuity when calculating if the continuous period requirement has been met”, stated:
“No more than 180 whole days absence are allowed in any of the five… consecutive 12 month periods, preceding the date of the application for [ILR]…”.”
[12]From 9 April 2015, Modernised Guidance Version 12 came into effect. This was the current guidance at the time of the decision challenged in this claim. Two parts are relevant to this appeal. “How to determine if the continuous period is lawfully spent in the UK This page tells you how to determine if the continuous period is spent lawfully in the UK. … You must refuse indefinite leave to remain (ILR) if the applicant does not meet the continuous period requirement set out in the Immigration Rules. The Secretary of State considers a grant of ILR in the UK to be a privilege and the continuous period requirement is the minimum amount of time which a migrant must spend in employment or being economically active in the UK before being eligible to qualify for ILR…”. (page 8). “Exceptional cases This page tells you about the exceptional circumstances when you can grant the applicant [ILR] outside the rules when their continuous leave is broken. Absences of more than 180 days in each consecutive 12 month period preceding the date of application… will mean the continuous period has been broken. However, you may consider the grant of [ILR] outside the rules if the applicant provides evidence to show the excessive absence was due to serious or compelling reasons. … Absence of more than 180 days in any 12 month period for employment or economic activity reasons are not considered exceptional…” (page 30).

The Facts

[13]The First Appellant is the wife of the Second Appellant; and they are the parents of the Third and Fourth Appellants who are now adults. They are all Nigerian citizens. The Second, Third and Fourth Appellants are dependants of the First Appellant. For convenience, I shall refer to the First Appellant as simply “the Appellant”.[14]On 12 January 2011, the Appellant was granted entry clearance into the UK as a Tier 1 (General) Migrant for two years. Her husband and their two children were granted leave as her dependants. They all entered the UK on 17 February 2011. On a further application, on 17 January 2013 that leave was extended to 12 January 2016, i.e. a total of five years. The Appellant was aware that, under paragraph 245CD of the Rules, this was a route to settlement in the UK.[15]On 30 December 2015, the Appellant applied for ILR under paragraph 245CD; but that application was refused on 13 January 2016 on the basis that she had not spent a continuous period of five years lawfully in the UK, due to her extended absences in both the first year of the five year period (i.e. 31 December 2010-30 December 2011) (215 days) and in the second year (284 days). The Appellant informed the Secretary of State that the absences in 2011 had resulted from the need to travel to Nigeria for the purposes of relocating and reordering the focus of her business of exporting goods from the UK on the basis of which her Tier 1 leave had been granted, and also attending to her children’s schooling at a boarding school in Nigeria. She said that significant absences in 2012 had been because her mother had been kidnapped in Nigeria, and she needed to support her father who was frail; but some were also regarding her business. She was absent from the UK for periods in the other three years, but for less than 180 days. She explained that, throughout the five year period she had maintained her business and home in England, first in Greenwich and later in Swale, Kent, where the family own a property upon which they pay council tax. She had duly met income tax and other tax liabilities.[16]However, the Secretary of State considered that the Appellant had failed to meet the criteria in paragraph 245CD of the Rules in that she had been absent from the UK for more 180 days for two of the relevant five years; and he did not consider that any of the reasons given for this length of absence amounted to “serious or compelling reasons” for the purposes of the guidance.[17]On 18 January 2016, the Appellant applied for an administrative review of the decision, but that was refused on 15 February 2016 on essentially the same basis.

The Upper Tribunal Determination

[18]The Appellant sought judicial review of the decision, for which the tribunal (McCloskey and May JJ) gave permission to proceed on 29 July 2016. The substantive application came before Upper Tribunal Judge Allen who, in a reserved judgment handed down on 17 January 2017, refused it.[19]Judge Allen held that “residence” in paragraph 245AAA equated to physical presence; and the paragraph, properly construed, meant that the continuity of a period of residence would be considered to have been broken where the applicant for ILR had been absent from the UK for more than 180 days in any relevant period of 12 months (see [25]-[26]). Therefore, where there had been such an absence, there was no need to perform an exercise of assessing whether residence had been maintained by reference to such factors as maintenance of a home, payment of tax (including council tax) and family, business and personal interests in the UK. The only justification for an absence in excess of the 180 days was if there were “serious or compelling reasons” as set out in the guidance. Employment could not amount to such a reason.[20]The judge concluded that, whilst the Secretary of State’s exercise of discretion in relation to “serious or compelling reasons” for the second year (after the Appellant’s mother had been kidnapped in Nigeria) was or may have been wrong, the Secretary of State did not act unlawfully in finding that the Appellant had failed to satisfy the criterion in paragraph 245CD in respect of the first year. The decision was therefore lawful, and the claim for judicial review was refused.[21]Ms Weston for the Appellant submits that Judge Allen erred in two respects. First, in construing paragraph 245AAA, he was wrong to equate “residence” with physical presence. Second, in exercising his discretion to grant leave outside the Rules, the Secretary of State erred in failing to take into account the previous, more generous versions of the Rules and related guidance, with which, in terms of absences from the UK that would not interfere with the route to settlement offered by paragraph 245CD, the Appellant had complied from time-to-time. The result was that the decision was unlawful, as being “unfair”.[22]I will deal with those grounds in turn.

Ground 1: The Construction of Paragraph 245AAA

[23]Ms Weston submitted that paragraph 245AAA did not comprehensively define “continuous period of 5 years lawfully in the UK” for the purposes of paragraph 245CD to exclude all circumstances in which the applicant has been absent from the UK for a period of more than 180 days in any relevant 12 month period. Rather, it only determines the position in respect of an applicant who can demonstrate that he has been absent from the UK for 180 days or less in any such period, by deeming such a person as “resident” for the purpose of paragraph 245AAA and thus of paragraph 245CD. As a matter of construction, “shall not be considered to have been broken where” neither means nor encapsulates “shall be considered to be broken unless the following circumstances apply”. An applicant who cannot satisfy the criterion of less than 180 days absence in any relevant year does not therefore automatically fall outside the scope of those who have “spent a continuous period [of five years] lawfully in the UK” for the purposes of paragraph 245CD. Simply because he cannot rely on the deeming provision of paragraph 245AAA, he is not prevented from showing by way of evidence that he was resident in the UK in each of the relevant 12 month periods by reference to the factors which mark “residence” as illustrated in BD (work permit – “continuous period”) Nigeria [2010] UKUT 418 (IAC) (“BD”).[24]BD was a decision of the Upper Tribunal (Immigration and Asylum Chamber) in a panel comprising Cranston J and Senior Immigration Judge McKee. It was a case under a predecessor of paragraph 245E/245CD, being determined under provisions in the Rules that pre-dated the PBS. Under paragraph 134 of those Rules, it was a criterion for ILR that the applicant had spent “a continuous period of five years lawfully in the UK”, materially the same phrase as used in paragraph 245CD. At that time, however, unlike the ten-year “long residence” criteria then found in paragraphs 276A-D, no definition of this requirement was given in the Rules, and there was no guidance or assistance given in the IDI or elsewhere. The panel dealt with the issue thus: “10. The question of interpretation comes down to this. Paragraph 134(i) is not meant to be taken literally. If it were so taken, anyone who wanted to qualify for indefinite leave after five years would be unable to take even a day trip to France, or visit his own country on family matters. A comparison with paragraph 276B is illuminating. That rule caters for people in categories which do not normally lead to settlement. If such persons have managed to stay in the [UK] lawfully for ten years – and this does happen with students – then they can get indefinite leave. But what counts as breaks in the continuity of residence, disqualifying them from indefinite leave, is actually set out in the Rules themselves, at paragraph 276A(a), as well as being the subject of guidance in the [IDI] on Long Residence. The reason for this, we apprehend, is that for categories which do not in themselves lead to settlement, the strength of connection to the [UK] which merits the grant of indefinite leave is established by actual residence in the [UK] for most of the ten years, with a cap being put on the amount of time spent abroad. 11. As Mr Pipe pointed out, there is no such definition applying to rule 134, and as we have indicated, there is no longer any guidance as to how the Secretary of State might exercise her discretion. As a literal construction makes no sense, the rule has to be construed sensibly. It clearly imports a discretion – a discretion which can be exercised by us - as to how much absence can be disregarded in the calculation of a ‘continuous period’ of five years. Of relevance, in our view, will be the reason for the absence, and the strength of the person’s ties to the [UK], as shown in other ways. In the instant case, the appellant’s absences have been required of him by his employer, a British company, and he has at all times retained his base in the [UK]. He is domiciled here for tax purposes, and would seem to have established a domicile of choice for other purposes. He has clearly made this country his home. In those circumstances, we find that he does meet all the requirements of rule 134, and that Immigration Judge McLachlan erred in law by giving the rule a restrictive interpretation. She was right, however, to dismiss the appeal under paragraph 276B…”.[25]I shall return to BD, but two points are worthy of immediate note. i) The tribunal considered that the literal (i.e. ordinary) meaning of the phrase “spent a continuous period of five years lawfully in the UK” was a reference to physical presence. It did not give the phrase that meaning in paragraph 134 only because, in context, it would have meant that an individual could not have left the UK at all – not even for a day – without breaking the continuity of the “continuous period” which (the tribunal considered) could not have been the intention of the Secretary of State. ii) Like paragraph 245E/245CD and accompanying guidance until the advent of paragraph 245AAA in December 2012, paragraph 134 did not refer to “residence” at all, although, like the Secretary of State in his guidance (see paragraph 6 above), the tribunal used the expression “the continuity of residence” to encapsulate the relevant requirement of the Rules.[26]Ms Weston also referred us to Granovski v Secretary of State for the Home Department [2015] EWHC 1478 (Admin), in which Her Honour Judge Coe QC sitting as a Deputy High Court Judge applied BD. The claimant had been granted leave to enter the UK under the Highly Skilled Migrant Programme (“HSMP”) at a time when, as a criterion for ILR, there was a requirement for such a person to have “a continuous period of five years lawfully in the UK” under that programme. However, prior to the four years being completed, the 13 December 2012 changes to the Rules and guidance intervened. The Deputy Judge held(i) the application stood to be dealt with under the Rules as they were when the claimant entered into the HSMP scheme, because there was a legitimate expectation to that effect (see [65]), and(ii) adopting the analysis of BD, the claimant was in any event in “continuous residence” in the UK because, despite his absences, there was a wealth of evidence which supported the fact that he resided here, and so the claimant satisfied the Rules and guidance as they stood at the date of determination of his application (see [79]).[27]Ms Weston submits that, given that paragraph 245AAA only determines the position of those who can demonstrate that they have been absent from the UK for 180 days or less in any relevant 12 month period, for those who cannot demonstrate that, the Secretary of State (or, in his place, the court) must revert to the question of whether the applicant was continuously resident in the UK in the relevant period(s) by reference to the criteria identified in BD and Granovski. In this case, Judge Allen failed to do so. Had he performed that exercise, she submits that he would have been bound to have concluded that the Appellant had been continuously resident for each of the relevant 12 month periods.[28]However, forcefully as those submissions were made, I find them unpersuasive. In my view, Judge Allen was right to equate “residence” in paragraph 245AAA with “physical presence”, for the following reasons.[29]The proper approach to construing the Rules is common ground before us, and is uncontentious. As Lord Brown of Eaton-under-Heywood JSC said in Mahad v Entry Clearance Officer [2009] UKSC 16; [2010] 1 WLR 48 (a case to which both Counsel before us referred):
“There is really no dispute about the proper approach to the construction of the Rules. As Lord Hoffmann said in Odelola v Secretary of State for the Home Department[2009] UKHL 25; [2009] 1 WLR 1230 at [4]: ‘Like any other question of construction, this [whether a rule change applies to all undetermined applications or only to subsequent applications] depends upon the language of the rule, construed against the relevant background. That involves a consideration of the immigration rules as a whole and the function which they serve in the administration of immigration policy.’ Essentially it comes to this. The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State’s administrative policy. The respondent’s counsel readily accepted that what she meant in her written case by the proposition ‘the question of interpretation is… what the Secretary of State intended his policy to be’ was that the court’s task is to discover from the words used in the Rules what the Secretary of State must be taken to have intended. After all, under section 3(2) of the Immigration Act 1971, the Secretary of State has to lay the Rules before Parliament which then has the opportunity to disapprove them. True, as I observed in Odelola(at [33]): ‘The question is what the Secretary of State intended. The rules are her rules.’ But that intention is to be discerned objectively from the language used, not divined by reference to supposed policy considerations. Still less is the Secretary of State’s intention to be discovered from [IDIs] issued intermittently to guide immigration officers in their application of the rules.”
Therefore, the proper construction of paragraph 245AAA is a matter of law for the court; and, in construing that paragraph, the starting point is “the language of the rule, construed against the relevant background”. ‘Like any other question of construction, this [whether a rule change applies to all undetermined applications or only to subsequent applications] depends upon the language of the rule, construed against the relevant background. That involves a consideration of the immigration rules as a whole and the function which they serve in the administration of immigration policy.’[30]In his submissions, Mr Byass referred us to the Oxford English Dictionary definition of “residence”, namely “the fact of living in a particular place”. However, it has long been established that residence is used in different statutes with different meanings, so that (e.g.) that which constitutes residence for company registration purposes does not necessarily amount to residence for the purposes of income tax (see, e.g., Goerz & Co v Bell [1904] 2 KB 136). Reference to the use of the word in other legal contexts is therefore of no assistance – nor did either Ms Weston nor Mr Byass suggest that it is. “Residence” in paragraph 245AAA has to be construed in its own context within the Rules.[31]In that context, I consider the meaning of the word plain.[32]First, it has to be seen in the context of paragraph 245CD, in respect of which it is a definition provision. The relevant requirement in paragraph 245CD at the relevant time (i.e. the date the Secretary of State made the challenged decision: 13 January 2016) was that “the applicant must have spent a continuous period [of 5 years] lawfully in the UK…”. Paragraph 245AAA defines “continuous period of 5 years lawfully in the UK”: it does not seek to define, or interfere with, the word “spent”. The construction urged by Ms Weston seeks to redefine the phrase in paragraph 245CD as “the applicant must have resided for a continuous period [of 5 years] lawfully in the UK…”. That manipulation of paragraph 245CD is, in my view, unwarranted.[33]The whole of the language in both paragraph 245CD and paragraph 245AAA is written in the terms of physical presence in the UK. For example, both paragraphs are concerned with “a continuous period”, and what might break such continuity namely “absence” (i.e. physical absence) from the UK. The antithesis of physical absence is physical presence. The reference to “continuous period” in the sense of “residence” urged upon us by Ms Weston would be, at least, odd.[34]It is noteworthy that, as I have described, both the Secretary of State’s guidance and the Upper Tribunal in BD used “continuity of residence” as a shorthand to encapsulate the continuity requirement found in paragraph 245CD (then numbered paragraph 134) before “residence” appeared in the Rules at all. The tribunal in BD considered – in my view, rightly – that the ordinary meaning of the language used in paragraph 245CD was to physical presence in the UK. The tribunal were only driven to conclude that the Secretary of State could not have meant the words to have that meaning because he could not have intended the continuity required by the Rule to be broken by absence of the applicant from the UK for a single day. The Secretary of State could of course have identified with more or less particularity absences from the UK that could be disregarded in terms of breaking the continuity required by paragraph 245CD. However, as neither the Rules themselves nor the Secretary of State’s guidance allowed for any absence, the tribunal concluded that the formulation in the then-current paragraph 134 must have intended there to have been a discretion as to how much absence could be disregarded in the calculation of a “continuous period” of five years by reference to such factors as the reason for the absence(s), whether the applicant has established the UK as his domicile of choice, whether he is domiciled in the UK for tax purposes, whether he has made the UK his “home” etc. The tribunal did not of course suggest that “spent a continuous period [of 5 years] lawfully in the UK” must in all contexts be construed thus. The lack of any indication in the Rules or guidance as to what absences the Secretary of State intended to be disregarded as not breaking the continuity of the five years – in circumstances in which the Secretary of State could not have intended that the criterion would only be satisfied if the applicant had been in the UK for the five year period without any absences at all – was crucial in the tribunal’s analysis.[35]The real question is therefore whether, when introducing paragraph 245AAA into the Rules, the Secretary of State intended: i) to retain the meaning of “a continuous period [of 5 years] lawfully in the UK” as construed in BD, save for a deeming provision that an applicant who is absent from the UK for no more than 180 days in a relevant year does not, as a result of that absence alone, break the continuous period required (the construction for which Ms Weston presses); or ii) to identify the number of days absence that would define, one way or the other, the required continuity subject only to the “serious and compelling reasons” exception (the construction favoured by Mr Byass and the tribunal judge below).[36]Given that, immediately prior to the introduction of paragraph 245AAA, the Secretary of State’s policy (as set out in Modernised Guidance Version 5) was that total absences from the UK of more than 180 days over the whole five year period would break the required continuity, it would have been surprising if his policy became one that allowed those who have been absent from the UK for more than 180 days within a relevant year nevertheless to put forward evidence that the required continuity had been maintained.[37]But it is clear that that was not the Secretary of State’s intention in introducing paragraph 245AAA.[38]Paragraph 2.1 of the Explanatory Memorandum to the Statement of Changes that was presented to Parliament with the proposed change to introduce paragraph 245AAA was clear that the purpose of the change was:
“To clarify the absences from the UK that are permitted in calculating the continuous residence requirement for work-related settlement”
Paragraph 7.33 stated:
“The Rules are being amended to clarify the absences that are permitted from the UK during the continuous period of lawful residence required for indefinite leave to remain in all these categories. Up to a maximum of 180 days in any of the 12 calendar month periods preceding the date of the application for [ILR] may be spent outside the UK, provided the absence is due to an employment, including annual leave, or business related reason or there are serious or compelling compassionate reasons for the absence.”
I accept that that is to an extent puzzling, because it suggests that, even 180 days of absence is only allowed for specified reasons. Some parts of the guidance from time-to-time give rise to a similar suggestion. However, before this court there is no issue about absences less than 180 days, whatever the reason for them. What is important for the purposes of this appeal is that the Explanatory Memorandum makes clear that the Rules change was intended to set a maximum number of days absence from the UK.[39]That too is of course reflected in the Secretary of State’s guidance since 13 December 2012. I appreciate that, as Lord Brown emphasised in Mahad, guidance cannot be used to construe the Rules; but it comes as some comfort that the guidance from the date the paragraph was introduced is entirely consistent with the construction of paragraph 245AAA which I consider to be correct, i.e. it has made clear that absences from the UK for in excess of 180 days breaks the continuity required by paragraphs 245CD and 245AAA.[40]As Mr Byass submitted, that construction is also consistent with the general policy behind the PBS, an inherent feature of which is to “[put] a premium on predictability and certainty at the expense of discretion” (Alam v Secretary of State for the Home Department [2012] EWCA Civ 960 at [35] per Sullivan LJ; see also EK (Ivory Coast) v Secretary of State for the Home Department [2014] EWCA Civ 1517 at [31] and [40] per Sales LJ, and at [59] per Briggs LJ (as he then was) where he referred to the “thrust of the PBS regime” as being in “the simplicity, predictability and relative speed of the PBS process”).[41]I accept that paragraph 245AAA need not have referred to “residence” at all: it could simply have referred to “presence”. However, for the reasons set out above, I consider that the tribunal judge below was correct to equate “residence” and physical presence. It is not for the court to speculate; but, given that “residence” had been used by the Secretary of State in earlier guidance as a short-hand for the continuity requirement in paragraph 245CD, it may be that that was simply transposed across by the draftsman. In any event, I consider its meaning, in context, clear.[42]For those reasons, I would dismiss the appeal on Ground 1.

Ground 2: Unfairness

[43]This alternative ground is based upon the proposition that, as I have found, the Appellant does not fall within the scope of paragraph 245CD because she failed to satisfy the continuity requirement.[44]I do not mean Ms Weston any discourtesy when I say that Ground 2 has appeared in several different forms during the course of this appeal. For example, in paragraph 20 of Ms Weston’s skeleton it is said:
“As the rules recognise (following the HSMP case law summarised in Granovski) applicants are entitled to place reliance on the regime in force at the point at which absences are accrued”
. That is a reference to HSMP Forum Limited v Secretary of State for the Home Department [2008] EWHC 664 (Admin). However, as Judge Coe summarised in Granovski (at [19]), that case held that the terms of the HSMP scheme properly construed contained a clear and unequivocal representation by the Secretary of State that once a migrant had embarked on the scheme he would enjoy the benefits of the scheme according to the terms prevailing at the time he joined, thus engendering a legitimate expectation in applicants that that would be so. Granovski was an HSMP case. This is not; and Ms Weston confirmed at the hearing before us that the Appellant did not rely upon the principles of legitimate expectation.[45]Nor, confirmed Ms Weston, did she suggest that any Rules or guidance applied other than those that were in place at the date the challenged decision was made, i.e. 13 January 2016. The principle that Immigration Rules bite from whenever they come into effect was established, if not before, by Odelola; so that, unless there is a statement to the contrary, new rules come into immediate effect and apply to all leave applications, whether pending or yet to be made. Nor did Ms Weston suggest that any of the transitional provisions applicable on the advent of paragraph 245AAA apply here.[46]The primary formulation of the ground, as set out in the original grounds and clarified in oral submissions, was that the previous Rules, under which the Applicant had operated when accruing her absences in the first and second years of the five year period, were a material consideration that the Secretary of State (and, in its turn, the tribunal) had failed to take into account. Because (it is submitted) those rules were more generous in terms of absence than the rules as at 13 January 2016, the failure to take that factor into account rendered the decision “unfair” and unlawful. The ground was therefore firmly grounded on public law “unfairness”.[47]In my view, great caution is required when it is alleged that a decision of a public body is unlawful because it is “unfair”. As Briggs LJ emphasised in EK (Ivory Coast) at [54], a clear distinction has to be drawn between unfairness in outcome viewed from the standpoint of an applicant to which a set of circumstances may give rise on the one hand, and the conceptually distinct question of whether the public body’s participation in those circumstances involved it in a breach of its common law duty of fairness. In that case, where an application for leave to remain as a Tier 4 (General) Student failed because the applicant’s sponsor college had erroneously withdrawn its Confirmation of Acceptance for Studies which was a prerequisite for a successful application, the majority of this court (Briggs and Sales LJJ), whilst sympathising with the appellant’s position and the sense of unfairness that it had generated in him, held that the Secretary of State had not breached her duty of fairness. Sales LJ’s use of the term “general public law duty of fairness” clearly did not intend to blur the clear distinction.[48]However, within the scope of the public law duty of fairness, there are two separate strains, sometimes referred to as “procedural fairness” and “substantive fairness” respectively. These were helpfully and illuminingly considered by my Lord, Singh LJ, in the recent case of R (Talpada) v Secretary of State for the Home Department [2018] EWCA Civ 841 at [56]-[66], which I can only commend.[49]Procedural fairness (or the duty to act fairly) is the modern term for what used to be called the rules of natural justice, namely the rule against actual or apparent bias and the rule requiring a fair hearing. However, Ground 2 here is not an assertion that the Secretary of State failed to act fairly in that sense.[50]The allegation here is in reality focused on substantive fairness. The court does not usually concern itself with substantive fairness; but, as Singh LJ explained in Talpada, it can and will do so in exceptional circumstances to correct an abuse of power. This has been most developed in the doctrine of substantive legitimate expectation, where a clear, unambiguous and unconditional representation has been made by a public body upon which an individual has relied to his detriment. However, Ms Weston submitted – and I accept – that the concept of substantive fairness may be wider than the concept of legitimate expectation. In Talpada, Singh LJ quoted the well-known observation of Sir Thomas Bingham MR in R v Inland Revenue Commissioners ex parte Unilever plc [1996] STC 681 at page 690f:
“The categories of unfairness are not closed and precedent should act as a guide not a cage”
. However, in this context, only fairness which amounts to an abuse of power is justiciable, where the unfairness is so obvious and the remedy so plain, that the public body can only reasonably act in one way and in acting as it has it can be held to have acted unlawfully (see Talpada at [61]-[62]). That constraint is vital, to avoid the court intruding impermissibly on the province of the executive (at [63]).[51]In my view, the circumstances of this case fall very far short of that high threshold. As Ms Weston accepts, the only reasonable expectation that the Appellant could have had was that the Secretary of State would apply his policy, as set out in the Rules and guidance, as it stood at the date of the challenged decision.[52]As I have found, the Applicant did not satisfy the primary criteria in paragraph 245CD of the Rules and accompanying guidance; nor did she satisfy the “serious or compelling reasons” exception within the guidance, because that expressly excludes absences for employment reasons. The complaint is consequently about the failure of the Secretary of State to take into account the previous Rules and guidance when considering leave “outside the Rules”.[53]It is now established that even such a discretion derives out of the statutory scheme founded upon the Immigration Act 1971. In considering the exercise of that discretion, the Secretary of State has a substantial degree of flexibility as to how he goes about his task. In particular: “… where a statute conferring discretionary power provides no lexicon of the matters to be treated as relevant by a decision-maker, then it is for the decision-maker and not the court to conclude what is relevant subject only to Wednesbury review” (R (Khatun) v London Borough of Newham [2004] EWCA Civ 55; [2005] QB 37 at [35] per Laws LJ, citing CREEDNZ Inc v Governor General of New Zealand [1981] 1 NZLR 172 and In re Findlay [1985] AC 318).[54]There is nothing in the 1971 Act that requires the Secretary of State to take into account former policy, Rules or guidance in coming to a decision as to whether to grant leave to remain outside the Rules in the circumstances of this case. For him not to have done so was not arguably irrational or otherwise unlawful.[55]The reverse side of that coin is that there could have been no reasonable expectation on the part of the Applicant that the Secretary of State would have taken into account previous policy, even the policy as set out in the Rules and guidance that applied when the Applicant was accruing absences in the first and second years of the five year period. Such an expectation could only reasonably have arisen if it would have been irrational for the Secretary of State not to have taken that factor into account. It seems to me to have been entirely rational – and, given the enormous rate of change to Rules and guidance, entirely understandable in practice – for the Secretary of State not to have taken into account the earlier Rules and guidance, notably the Rules and guidance which applied when the absences in the first year were being accrued.[56]Although I do not consider that it has great analytical force, in my view it is also noteworthy that, when introducing paragraph 245AAA, the Secretary of State clearly considered, with some apparent care, transitional provisions. In the prologue to the Statement of Changes itself, it is said:
“… [I]f an applicant has made an application for entry clearance or leave before 13 December 2012 and the application has not been decided before that date, it will be decided in accordance with the rules in force on 12 December 2012.”
That is arguably yet a further indication that the Secretary of State intended the new Rules and accompanying guidance to apply without consideration of the earlier Rules and guidance.[57]In addition, Mr Byass submitted that, in any event, the earlier guidance was no more generous than paragraph 245AAA and the guidance which accompanied it as it stood at 13 January 2016. As that earlier guidance was more restrictive in at least some respects (e.g. in the number of days absence allowed over the entire five year period), I see the force of that submission. However, in the light of my earlier findings, it is unnecessary for me to consider that further.[58]For those reasons, in my judgment, Ground 2 also fails.

Conclusion

[59]Like Sales and Briggs LJJ in EK (Ivory Coast), I have considerable sympathy with the position that the Appellant and her family find themselves in, through no fault of their own. However, for the reasons I have given, I do not consider that either ground of appeal has been made good in law.[60]I would dismiss this appeal.[61]I agree.[62]I also agree.