Tuesday 19 December 2023

On 28 November 2023, the Supreme Court handed down the judgment given on R (on the application of Afzal) v Secretary of State for the Home Department; R (on the application of Iyieke) v Secretary of State for the Home Department [2023] UKSC 46. The case concerned two appellants, Mr Afzal and Mr Iyeike, whose applications for indefinite leave to remain (ILR) on the basis of the 10 years long residence in the UK were refused at first instance due to periods of overstay. Both appellants issued a judicial review claim to challenge the Home Secretary’s decision against their ILR applications. The Court of Appeal granted permission, but each claim was dismissed on the merits. Ultimately, the Supreme Court agreed and found that periods of overstaying even those which may be ‘disregarded’ under the Immigration Rules cannot be positively relied upon to count towards the period of 10 years long residence for an ILR application.

We now provide an outline of the long residence provisions and a breakdown of the appeal below.

Long residence provisions

By way of an overview, to be eligible for settlement on the basis of 10 years long residence in the UK, an applicant must have been continuously resident in the UK with valid and lawful immigration permission. Time spent as a visitor, a short term student or seasonal worker does not count as lawful residence. An applicant must satisfy the following requirements:

• public interest requirement, in that there must be no reason why it would be undesirable for the individual to be granted settlement;
• must not fall for refusal under the general grounds of refusal;
• must demonstrate sufficient knowledge of the English language and sufficient knowledge about life in the UK; and
• cannot be in breach of immigration laws, except that, where paragraph 39E of the Immigration Rules applies any current period of overstaying will be disregarded, which is poignant to the facts of the case, as will be explained.

There are strict rules to satisfy the continuous residence requirement under this route and an applicant’s residence will be considered ‘broken’ if the applicant has:

• been absent from the UK for a period of more than 6 months (184 days) at any one time;
• spent a total of 18 months (548 days) outside the UK throughout the whole 10 year period; or
• left the UK before 24 November 2016 with no valid leave to remain on departure from the UK and failed to apply for entry clearance within 28 days of previous leave expiring (even if the applicant returned to the UK within 6 months).

Note that valid immigration permission counts as existing leave to enter or remain in the UK, under section 3C of the Immigration Act 1971, again pertinent to the facts of this case, as we will explain below.

Discretion may be exercised over excessive absences in compelling or compassionate circumstances. It is, however, understood amongst practitioners that the Home Office is not particularly forgiving when it comes to excessive absences from the UK under the long residence provisions, which are treated with severity. As a result, it is a highly litigious route within UK immigration law.

Background

The first appellant, Mr Afzal held leave to remain valid until 14 July 2017. Before the expiry of his leave on 6 July 2017, he applied for further leave to remain with an application for a waiver of the relevant fee. His fee waiver was later rejected by the Secretary of State, and he was notified on 18 October 2017 that he had to pay the applicable fee, along with the Immigration Health Surcharge (IHS). On 1 November 2017, he paid the costs of the application fee but did not pay for IHS, for which a reminder was sent to him on 8 November 2017 to pay within 10 days. Due to the fact that he had not paid his IHS costs, his application for further leave to remain was rejected on 22 January 2018. The decision was not challenged. Mr Afzal made a fresh application on 2 February 2018 and was granted immigration permission on 5 September 2019, valid until 4 March 2022.

On 28 February 2020, he applied for ILR on the basis of 10 years long residence in the UK. He relied on section 3C of the Immigration Act 1971, which can extend an individual’s immigration permission where an application is made ‘in time’, i.e. before the expiry of the current status, until a decision is made on the pending application. His application was refused due to the gap in continuous lawful residence between 14 July 2017 and 5 September 2019.

The second appellant, Mr Iyieke, held immigration permission as a student, valid until 9 August 2014. He did not submit a further application before this date and therefore became an overstayer on 10 August 2014. On 2 September 2014, Mr Iyieke submitted an out of time application for leave to remain on compassionate grounds but was refused on 29 October 2014 without any right of appeal. On 26 February 2015, he applied for leave to remain on family and private life grounds, which was refused. His appeal to the First Tier Tribunal was dismissed, but his further appeal Upper Tribunal was allowed, and he was granted leave to remain outside of the rules, valid until 11 February 2020 and again until 30 July 2022. He applied for ILR based on 10 years long residence in the UK in February 2021.

Key questions addressed in the judgment

Mr Afzal’s appeal was dismissed despite the fact that the Immigration Rules allow for a period of overstaying to be ‘disregarded’ where the subsequent application was made within 14 days of the expiry of leave. This included any leave extended by section 3C, which will extend an individual’s leave, preventing them from being an overstayer if they are awaiting a decision on an in time application or they are exercising a right of appeal against the refusal of such an application.

Mr Afzal argued that his period of overstaying was covered by paragraph 39E of the Immigration Rules, which allows for certain periods of overstay to be disregarded, as the application made on 6 July 2017 came within 14 days of the expiry of an extension of leave under section 3C. It was however established in the case of R (Mirza) v Secretary of State for the Home Office [2016] UKSC 63; [2017] 1 WLR 85, ‘where there is a failure to pay the IHS […] the application ‘must be treated as invalid’’. The court therefore held that ‘according to the property interpretation of section 3C’ the fact that Mr Afzal did not pay the IHS (pursuant to section 6(1) 2015 Order) invalidated his previous application for leave to remain, which meant that paragraph 39E did not apply.

The court also held that ‘where there is a period of overstaying without leave, which is book ended between two periods with leave, it clearly does not itself qualify as a period of residence pursuant to existing leave’. The word ‘disregarded’ should be read in accordance with its natural meaning, whereby the period of overstaying is disregarded, meaning it is ignored, when applicable. Mr Afzal’s period of overstay between 14 July 2017 to 5 September 2019 could therefore not be relied upon to positively count towards the qualifying 10 year period.

Mr Iyieke’s appeal was similarly dismissed, with a focus on a subsection of the Immigration Rules which states that a previous period of overstaying between periods of leave will be disregarded where a previous application was made before 24 November 2016 and was made within 28 days of the expiry of leave. Mr Iyieke argued that his out of time application submitted on 2 September 2014 (within 28 days) should qualify as the ‘previous application’ in line with the above, meaning that his period of overstay could, in theory, be disregarded.

The court however upheld that reference to ‘the’ previous application for leave does not mean ‘any’ Mr Iyieke could not reasonably rely on the previously unsuccessful application made on 2 September 2014, as to do so would have a ‘perverse effect’ of ‘making it more advantageous to submit an application out of time’ which ‘it cannot reasonably be thought the drafter intended’. The court therefore upheld that after 9 August 2014, he did not have any form of lawful residence between the expiry of his first period of leave and the commencement of his second period of leave on 28 November 2014, leaving a gap of 111 days without continuous residence in the UK.

Concluding remarks

For the reasons outlined above, the Supreme Court upheld the Court of Appeal’s rulings for both cases. Each appeal was dismissed, and Lord Sales gave the only judgment which was unanimously agreed. Interestingly, a final comment was provided that the judges were ‘repeatedly commenting on the poor drafting of the Immigration Rules’, which of course is nothing new to immigration practitioners.

If you would like any further information regarding the judgment or assistance with an application for ILR based on 10 years long residence, please contact enquiries@lauradevine.com.