The court distinguished EB (Kosovo) [2008] UKHL 41 on the point that without a removal asad-khandecision protracted delay warrants the ascription of greater weight to a migrant’s personal relationships. The rationale converged with the toleration of unlawful presence approach in Jeunesse but in Rhuppiah’s case the question of removal did not arise because she was granted leave as a student and thus the situation was readily distinguishable. Notably, the executive submitted that any grant of limited leave to enter or remain short of settlement or ILR qualifies as “precarious” for the purposes of s 117B(5). Sales LJ declined to rule upon the point, but he doubted that it did. Indeed, in his Lordship’s view, if that had been intended then:

  1. … the drafter of section 117B(5) could have expressed the idea more clearly and precisely in other ways.

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