Visitor leave and settled status

A new case from the Court of Appeal in R (Mungur) v SSHD [2021] has concluded that a period of leave to remain in the UK as a visitor can count towards the necessary 10 years route for settlement.  Mr Mungur is a citizen of Mauritius who first came to the UK in April 2001 on a visitor’s visa which was valid until September 2001.  He left the UK in order to make a student leave visa application from abroad and the Home Office granted a student visa when he returned in October 2001.  When he made an application for settlement, the Home Office refused this application, arguing that his 10 years started from 5^th October 2001 when he returned as a student and not for when he first entered as a visitor.  He applied for Judicial Review of the refusal. The Upper Tribunal initially refused his permission to proceed and even certified the case as totally without merit.  However, the Court of Appeal considered it and allowed it.  The main issue for the Court of Appeal was whether or not the continuity of 10 years lawful residence was broken when he left the UK in September 2001.

The Home Office also argued the temporary nature of a visit visa means that he left the UK in circumstances in which he could not have reasonably expected at the time of leaving that he would be able to return.  However, the Court of Appeal did not agree with that interpretation, and stated that the question of whether someone who left the UK had a reasonable expectation of return is fact sensitive.  In this case Mr Mungur had to leave the UK to make the student visa application, which was then granted. Accordingly, he had expectation of returning to the UK.  This is a decision that can help our clients who wish to count periods of visit visas towards their 10 years continuous lawful residence.