40. There are, however, more fundamental objections to CI's argument. It makes no sense to treat someone who is present in the UK in breach of immigration laws and liable to removal – for example, because (as in the present case) they have remained in the UK after a limited leave to enter or remain has expired – as "lawfully resident" in the UK within the meaning of section
117C(4)(a) of the 2002 Act, whether or not the person has been granted temporary admission or release pending deportation or is on immigration bail. To describe such a person as "lawfully resident" in the UK is not consistent with the ordinary use of language. It is also inconsistent with the policy underlying the statutory provision. The reason for focusing on the period for which the person concerned has not merely been resident but lawfully resident in the UK must be that, as provided in section
117B(4), little weight should generally be given to a private life established at a time when a person is in the UK unlawfully. As Underhill LJ observed in
Akinyemi at para 42, that in turn is because, as a general principle, a person cannot legitimately expect to be allowed to stay in a country on the basis of relationships formed and ties created when he or she has no right to be living there in the first place. In
Jeunesse v The Netherlands (2014) 60 EHRR 17, para 103, the European Court made it clear that this principle is not displaced where a state "tolerates the presence of an alien in its territory thereby allowing him or her to await a decision on an application for a residence permit, an appeal against such a decision or a fresh application for a residence permit ..."
41. Furthermore, the fact that sections 117C(4)(a) of the 2002 Act have a common rationale means that to treat someone who is in breach of a legal obligation by being in the UK and is legally liable to be removed as "lawfully resident" for the purpose of section 117C(4)(a) would be inconsistent with the Akinyemi case, which treated such a person as in the UK "unlawfully" for the purpose of section 117B(4). Although, as Underhill LJ pointed out, the opposite is not necessarily true, it would be illogical to regard someone who is in the UK "unlawfully" as nevertheless "lawfully resident" here, for the purpose of the same exercise of deciding whether the interference with private life caused by deporting the person on account of criminal offending is justified in the public interest.
42. I recognise that it is not CI's case that anyone granted temporary admission or immigration bail is "lawfully resident" in the UK for the purpose of section 117C(4)(a). The question is, however, whether there is a good reason to treat the fact that such a person has made an application for leave to remain which is subsequently granted as bringing them within the scope of the provision.
43. In general, it seems to me that there is not. The grant of leave to enter or remain to someone who does not currently have it is not ordinarily a matter of entitlement. By the same token, the Secretary of State is not ordinarily under a legal obligation to grant an application for leave to enter or remain. It is a matter of administrative discretion. A foreign national whose presence in the UK is in breach of immigration law but is tolerated while such an application is pending and who develops a private or family life during this period cannot claim to do so with a legitimate expectation of being allowed to stay, even if the application is subsequently granted.
