The Irene Clennell Case
Today, our immigration team at Arlingsworth have written a blog detailing the law around the controversial and recent Irene Clennell case. Despite Mrs Clennell not being awarded indefinite leave to remain, our team have dealt with many similar cases often being successful, and we hope this blog will provide some guidance for any who are interested in the case, or who are in a similar position to Irene.
Facts about the Irene Clennell case
Irene Clennell, a woman married to her British husband for a period of 27 years, has been sent back recently to Singapore. Living near Durham, she also has two sons and a granddaughter within the UK.
For a large part of their marriage Mrs Clennell was living in Singapore but was initially given indefinite leave in 1992 to remain within the UK after her marriage. As she moved back to Singapore with her husband and children, the right to indefinite leave to remain lapsed after two years. Mrs Clennell moved back to the UK in between 2003 and 2005 with numerous applications to remain rejected. She returned to the UK in 2013, after having another application rejected in 2012, making further applications to remain both of which were rejected.
It has since been revealed that Mrs Clennell’s husband’s health has deteriorated and Mrs Clennell was the primary carer. Despite this, the Home Office “expect those with no legal right to remain in the country to leave”, preventing Mrs Clennell from contacting her lawyer and from getting her clothes from home.
The Law
As has already been stated above, an indefinite leave to remain automatically lapses after two years absence from the UK. This law is found in Immigration (Leave to Enter and Remain) Order 2000 which, under Article 13(4) (a), says “where the holder has stayed outside the United Kingdom for a continuous period of more than two years, the leave (where the leave is unlimited) or any leave then remaining (where the leave is limited) shall thereupon lapse.” This applied to Irene Clennell’s situation after she returned to Singapore to care for her parents, without making a single trip back to prevent her right to remain from lapsing, during these two years.
The current Immigration Rules do make it possible for an individual to be readmitted into the UK and for their indefinite leave to remain to be restored, however this is no right and discretion is afforded to immigration officials on this matter. The two paragraphs that deal with those in Irene Clennell’s position are as follows:
18. A person seeking leave to enter the United Kingdom as a returning resident may be admitted for settlement provided the Immigration Officer is satisfied that the person concerned:
(ii) has not been away from the United Kingdom for more than 2 years; and
(iii) did not receive assistance from public funds towards the cost of leaving the United Kingdom; and
(iv) now seeks admission for the purpose of settlement.
As Paragraph 18 doesn’t apply to Mrs Clennell’s situation, Paragraph 19 is the important rule, as it gives discretion to an immigration official to award indefinite leave to remain after the individual has been absent for two years. However, the construction of the Paragraph seemingly obliges officials to take a strict view, with living in the UK for most of their life being the example of when to afford discretion.
One document that gives guidance to immigration officials on how to exercise their discretion under Paragraph 19 is ‘Returning Residents: Set 09’, with factors that should be considered in assessing whether strong ties exist include:
- The length of the original residence in the UK;
- The time the applicant has been outside the UK;
- The reason for the delay beyond the 2 years – was it through their own wish or no fault of their own (for example, having to care for a sick or elderly relative)?;
- The reasons for leaving the UK and for now wishing to return;
- The nature of the family ties in the UK;
- How close are they and to what extent have they been maintained during the absence; and
- Do they have a home in the UK and, if admitted, would they remain and live there?
The document goes on to say “the longer a person has remained outside the UK (over 2 years), the more difficult it will be for them to qualify for admission under this provision. The longer the previous residence in the UK, the stronger the case for consideration, provided that there had not been a break in residence which extended over a number of years.”
It is clear that going abroad to care for a sick relative, family ties within the UK, the length of the original residence and whether the person has a home in the UK all apply in Mrs Clennell’s case. Despite the policy encouraging an immigration official to readmit people in these circumstances, it is unfortunate that Irene Clennell was not afforded such discretion. It is very likely the Government’s net migration target played a role, which inevitably means increasing amounts of refusals despite people, such as Irene Clennell, having a strong case for readmission.
Many people in Irene Clennell’s position do not understand whether they have a problem until they encounter an immigration official, and often do not take necessary steps to ensure they have certainty of position after being notified of any problems with a temporary leave to enter.
It is so important that if you are in a position similar to Irene Clennell, and wishing to be readmitted into the UK seeking indefinite leave to remain, particularly after being giving a period of leave to enter, you seek legal advice to ensure certainty and correct procedures are followed.
Here at Arlingsworth, we pride ourselves on giving an absolute service to our clients. If you are in need of expert legal advice, get in touch with our award-winning immigration team who are available 24/7 at 01273 696962. Alternatively, you can request a callback, or email info@arlingsworth.com. You can also follow us on Facebook, Twitter and LinkedIn for any other important news and updates.
