False representations made in pending application don’t ‘simply disappear’ by varying it to an ILR application

Al-Azad v Secretary of State for the Home Department [2024] EWCA Civ 407 (25 April 2024)

The Court of Appeal has rejected the argument that the SSHD should not have refused Mr MN Wohhab Al-Azad’s application for indefinite leave to remain (ILR) on the basis that he made false representations in an earlier application for leave to remain as a Tier 1 (Entrepreneur) Migrant. Lewis LJ (with whom Whipple and Baker LJJ agreed) held that under paragraph 322(1A) of the Immigration Rules, leave was to be refused where false representations in relation to an application for leave to remain or a variation of leave to remain had been made. The application for ILR, made whilst the Tier 1 application was still pending, varied the existing application. The new ILR application did not replace it the earlier pending Tier 1 application. In this appeal from the Upper Tribunal, the Court of Appeal had to determine the proper interpretation of the Immigration Rules set out in paragraph 322(1A) and paragraph 322(5). Lewis LJ stated that an applicant must be honest throughout the application process. Mr Al-Azad was a Bangladeshi national had been granted leave to remain until 2013 as a Tier 1 (Highly Skilled) migrant. But before that leave expired, in 2013 he applied for leave to remain as a Tier 1 (Entrepreneur) migrant. While that application was pending, in 2018 he applied for ILR on the basis of 10 years’ continued lawful residence in the UK. The SSHD refused to grant ILR and found that Mr Al-Azad had made false representations in the application for leave to remain as a Tier 1 (Entrepreneur) migrant. 

The decision-maker found that he had not engaged in a genuine business and had formed a partnership with another person with a view to appearing to satisfy the requirements for leave to be granted. The decision-maker also considered that paragraph 322(1A) required refusal in such circumstances, and alternatively, that leave would have been refused under paragraph 322(5). Mr Al-Azad appealed against that decision to the First-tier Tribunal on the basis that any false representations had merely been made in connection with the Tier 1 (Entrepreneur) application and not the later application for ILR. The FTT dismissed the appeal. An appeal against that decision to the UT was unsuccessful. Mr Al-Azad appealed against the UT’s decision to the Court of Appeal. He was aggrieved because he found that the FTT misconstrued paragraph 322(1A) of the Immigration Rules. The UT’s conclusion that there was no material error in the FTT’s decision was wrong in law. He said that the FTT had erred in law in failing to conduct the two-stage balancing exercise as required under paragraph 322(5) of the Immigration Rules. The UT’s conclusion that there was no such error in the FTT’s decision was, therefore, wrong in law. The SSHD sough to uphold the decision on two additional grounds. Firstly, that the alleged errors were academic as Mr Al-Azad had not appealed against the FTT’s finding that his application did not meet the requirements of paragraph 276B(ii)(c) of the Immigration Rules. Secondly, if the FTT erred in law on paragraph 322(5), any error was immaterial because any rational tribunal must have come to the same conclusion.

Home Office wins in Supreme Court against Belarusian man with “limbo” status

R (AM (Belarus)) v Secretary of State for the Home Department [2024] UKSC 13 (24 April 2024) 

The Supreme Court has allowed the Home Office’s appeal in the case of AM who was a Belarusian who stayed in “limbo” by failing to cooperate in his deportation from the UK. His extradition was also sought. AM came to the UK on 1998 and claimed asylum. His asylum claim was refused and all his appeals were unsuccessful. He was removed to Belarus on 29 June 2001. However, when examined upon arrival, AM gave false information which led the Belarusian authorities to believe that he was not, in fact, a citizen of Belarus. He was refused entry and returned to the UK. AM’s criminal offending in the UK qualified him as a foreign criminal for the purposes of the Nationality, Immigration and Asylum Act 2002. AM did not acquiesce in his removal and successfully managed to scupper all efforts to remove him. Thus, AM has continued to be present in the UK, but without any grant of leave to remain (LTR). This had left AM with “limbo” status and prevented him from working in the UK, accessing the NHS, and entering into a tenancy agreement and from opening a bank account. He was also receiving only very limited social welfare benefits at the same level as any failed asylum seeker awaiting removal from the UK receives. AM suffers from ill-health and was diagnosed with psychotic symptoms and he argued that his mental health was further adversely affected by delays in resolving his case and his limbo status. While in detention, he tried to harm himself and attempted suicide.

The issue in this appeal was in what circumstances will a refusal by the Home Secretary to grant LTR to an individual such as AM, who cannot be removed to their country of nationality, violate his right to respect for private and family life within the meaning of article 8 of the ECHR. Initially, AM filed an application for judicial review of the Home Secretary’s failure to provide him with LTR or permission to work in the UK. The Home Secretary subsequently agreed to reconsider AM’s asylum claim and the judicial review proceedings were stayed by the High Court but the Home Secretary again refused AM’s asylum claim. AM’s appeal against this refusal was dismissed. AM then applied to the Home Secretary for LTR as a stateless person. This too was refused. In July 2018, AM successfully applied for permission to restore the judicial review proceedings which had been stayed. He also successfully applied to add a second ground challenging the refusal to grant him LTR on grounds of statelessness. While the Upper Tribunal dismissed AM’s challenge to the Home Secretary’s determination that AM is not stateless, it upheld AM’s claim that refusal to grant him LTR (with permission to work) violated his rights under article 8. The Home Secretary appealed to the Court of Appeal in relation to the finding of violation of article 8. AM did not appeal in relation to the issue of statelessness. The Court of Appeal dismissed the appeal and the Home Secretary appealed to the Supreme Court which unanimously allowed his appeal in a judgment authored by Lord Sales. 

Somali ILR holder stranded in Africa for 16 years succeeds in Cart judicial review in Court of Appeal

Ali v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2024] EWCA Civ 372 (17 April 2024)

Andrews LJ described this case as “most extraordinary”. The Court of Appeal held that FTTJ Rhys Davies had erred in his interpretation of Abbas v SSHD [2017] EWCA Civ 1393, see here, in finding that article 8 of the ECHR was not engaged when a resident non-national Somali national Mr Saleh Ahmed Handule Ali who had been granted indefinite leave to remain (ILR), and whose travel document had been lost abroad, sought re-entry to the UK. The case was remitted to the UT for a merits based determination of Mr Ali’s article 8 private life claim. Mr Ali was a national of Somalia who, along with his family, had been granted ILR in the UK. He had lived in the UK between the ages of 9 and 18. His mother and two younger siblings from Somalia came to join his father, who had been granted refugee status. After contracting tuberculosis, he visited Djibouti in 2008 to recover from his illness but lost his passport and travelled to Ethiopia—where the nearest British Embassy was—but they refused to assist him on the basis that they could not verify his ILR status, despite being shown a copy of his lost passport. But, unbeknown to Mr Ali and his family at that time, the Home Office failed to keep a record on its database of the grant of ILR to him. Mr Ali was undocumented and remained stranded in Ethiopia ever since 2009. He is now 33. In 2015, he applied for entry clearance under paragraph 19 of the Immigration Rules. 

But his application was refused with the entry clearance officer treating him as if he had remained outside the UK voluntarily. A fresh application for entry clearance was made in 2019. The First-tier Tribunal dismissed the part of Mr Ali’s human rights claim which was based on his private life in within the UK, relying on its incorrect interpretation of Abbas and finding that article 8 was not engaged. Subsequently, the Upper Tribunal followed suit and refused to grant permission to appeal against the FTT’s decision. Mr Ali’s application for permission to bring a claim for judicial review of the UT’s decision was refused. All this was so despite the fact that Mr Ali’s visit to the British Embassy in Addis Ababa was well within two years and he had only been absent for 9 months. Notably, it was not possible for someone else, e.g. another family member, to apply on his behalf from within the UK for a replacement travel document. Although FTTJ Rhys Davies had criticised his mother for making no attempt to contact the Home Office in the UK to obtain a replacement travel document for him using a photocopy of his travel document, clearly this would not have achieved anything even if the Home Office had a record of the grant of ILR which it did not in fact keep. Home Office guidance applicable at the material time informed officials a person with ILR who had been absent from the UK for less than 2 years would not need to apply for entry clearance before resuming his residence in the UK. This had reflected the principle in paragraph 18 of the Immigration Rules. 

Woman resident in the UK for 39 years loses deportation battle

Khadija Akhtar v Secretary of State for the Home Department [2024] EWCA Civ 354 (16 April 2024)

The Court of Appeal has dismissed the appeal of Mrs Akhtar who had been resident in the UK for 39 years (since 1985). Elisabeth Laing, Phillips and Males LJJ held that the Upper Tribunal had not failed to consider all the relevant circumstances when reaching its decision under section 117C(6) of Part 5A of the Nationality, Immigration and Asylum Act 2002 and they dismissed Mrs Akhtar’s appeal. Judges Mandalia and Hanson had not erroneously concluded that a foreign criminal had failed to meet the statutory exceptions in section 117C(6) when deciding her rights under article 8 of the ECHR did not outweigh the public interest in her deportation. Mrs Akhtar and her husband (“H”) were both convicted criminal offences on 21 April 2016 and they were duly sentenced, respectively, to a total of 4 years and three months’ imprisonment and to 14 years’ imprisonment (reduced to 11 on appeal) for their roles in a substantial and long-running mortgage fraud. Mrs Akhtar was convicted of the offences of cheating the public revenue between 1 January 2004 and 26 September 2012, entering into an arrangement to facilitate the acquisition, retention, use or control of criminal property and two counts of conspiracy to obtain a money transfer by deception. She was sentenced, respectively, to 30 months’ imprisonment, 30 months’ imprisonment, concurrent and also 21 months’ imprisonment, consecutive, and 21 months’ imprisonment, concurrent. Mrs Akhtar, who entered the UK as a fiancée in 1985, complained that the UT did not take her long residence into account in considering section 117C(6). 

The couple’s offences were described as “a sophisticated and organised series of frauds” by the sentencing judge. The fraud, which lasted for nearly 10 years, involved deceiving mortgage lenders. Many bank accounts and life policies were used to launder the money. H, also known as “Saint ‘Pir’ Pandiraman” was “a spiritual leader, healer and guide” in the words of the sentencing judge. The money came “in part through donations given in the context of spiritual leadership”, from failure to pay due tax and by repeated deception of lenders. H used the money to purchase 54 residential and commercial properties, and substantial homes for himself and his family, with “lavish furnishings”. Mrs Akhtar was granted indefinite leave to remain in 2000. She visited Pakistan in 2002, 2003, 2005, 2013 and 2015. She has five adult British citizen children with H. In a decision dated 6 September 2018, the Home Office decided that Mrs Akhtar should be deported to Pakistan for all her criminality and her appeal to the First-tier Tribunal against the deportation decision was dismissed. That determination was set aside by the UT after an application for judicial review, on the basis that the FTT had applied the wrong statutory test in thinking that she had received one sentence, rather than aggregated sentences, of more than four years’ imprisonment.

Failure to conduct statistical data monitoring on provision of accommodation to vulnerable PNMAS breaches PSED

R (DXK, Ivory Coast) v Secretary of State for the Home Department [2024] EWHC 579 (Admin) (15 March 2024)

In these intricate proceedings, an asylum seeker and new mother known as “DXK” who was a national of the Ivory Coast born in 1986 sought judicial review of the system of allocation of asylum accommodation provided by the SSHD as it related to pregnant and new mother asylum-seekers (“PNMAS”). Granting DXK’s judicial review application, Paul Bowen KC (sitting as deputy high court judge) held that the SSHD was in breach of his public sector equality duty under section 149 of the Equality Act 2010 owing to his legal failure to conduct any statistical data monitoring on the provision of accommodation. The court addressed numerous grounds, i.e. systemic breaches of the SSHD’s duties to provide adequate accommodation to PNMAS; systemic breaches of articles 3, 8 and 14 of the ECHR and section 6 of the Human Rights Act 1998; indirect discrimination; breach of duty to have regard to children’s welfare under section 55 of the Borders, Citizenship and Immigration Act 2009; and breach of the SSHD’s duty to have due regard to equality considerations in the discharge of public functions under section 149 of the 2010 Act (the “PSED”). The relevant accommodation was provided under section 4(2) and section 95 of the Immigration and Asylum Act 1999. The scheme was administered under third-party contracts. However, the statutory duties remained with the SSHD and PNMAS were a particularly vulnerable cohort of persons. The original claim challenged the failure to provide adequate asylum accommodation, or dispersal accommodation, but DXK obtained the relief she sought and reformulated her grounds. 

Notably, since March 2020, there had been significant delays in the provision to asylum-seekers and also failed asylum-seekers of dispersal accommodation (“DA”), which was longer-term and self-contained, resulting in people being inappropriately accommodated for long periods in initial accommodation (“IA”), usually single rooms in hotels on full or half-board. PNMAS and their infants who were accommodated in inappropriate IA for lengthy periods because of the delays had been significantly and negatively impacted. DXK’s asylum claim was refused. Her appeal rights became exhausted. She absconded and remained in the UK thereafter without valid leave to remain. She lived precariously in various locations in the UK. When she was about seven months pregnant, she applied to the SSHD for support under section 4(2) of the Immigration and Asylum Act 1999 as a failed asylum-seeker. The application was granted. She moved into IA at the Stonebridge Lodge Hotel in Thornton Heath on a full-board basis. She was given a single room which was said to be damp, dirty, unhygienic and infested with cockroaches and she had to share a bathroom with nine others, including men. DXK said that the SSHD could not evidence the discharge of his section 149 duty and he could not have had due regard to it because he had no system of monitoring how many PNMAS received asylum support, the nature of their accommodation or how quickly they were allocated DA, and no way of making a comparison with other asylum seekers.

Court of Appeal disapproves of tribunal’s decision in Capparelli

R (Roehrig) v Secretary of State for the Home Department [2024] EWCA Civ 240 (12 March 2024)

The Court of Appeal has held that a child born to a French national mother who was ordinarily resident in the UK while she was exercising her right of free movement as a worker had not automatically acquired British citizenship at birth under section 1(1)(b) of the British Nationality Act 1981 as the child of someone “settled” in the UK. In so concluding, the Court of Appeal held that the Immigration (European Economic Area) Regulations 2000 were “immigration laws” which subjected the mother to a restriction on her entitlement to remain in the UK and meant that she had not been “settled” for the purposes of section 1(1)(b) at the time of the child’s birth. At first instance Eyre J had dismissed Mr Roehrig’s claim for judicial review of the decision made by the SSHD refusing his application for a British passport. The issue in this appeal, as it was before the single judge, was whether Mr Roehrig automatically acquired British citizenship at birth under section 1(1)(b) of the British Nationality Act 1981. Notably, section 1(1)(b) of the 1981 Act provides that “A person born in the United Kingdom after commencement shall be a British citizen if at the time of the birth his father or mother is …(b) settled in the United Kingdom.” The SSHD refused the application stating: “As you were not able to provide documentary evidence to show your Mother was free from immigration time restrictions at the time of your birth, we are not able to issue a passport to you at this time…”. 

Notably, “Immigration laws” are defined by section 50(1) of the 1981 Act to mean “in relation to the United Kingdom … the Immigration Act 1971 and any law for purposes similar to that Act which is for the time being or has at any time been in force in any part of the United Kingdom”. Mr Roehrig was born in the UK in October 2000. At the time of his birth, his mother, a French national, had been resident in the UK since 1995, exercising her right of free movement as a worker. As such, she was a “qualified person” for the purposes of the Immigration (European Economic Area) Regulations 2000—regulation 14 specified that as long his mother remained a qualified person, she was entitled to stay in the UK without holding leave to remain under the Immigration Act 1971. Although she had been entitled under regulation 15 of the 2000 Regulations and the Statement of Changes to Immigration Rules 1994 (HC395)—paragraph 255—to apply for a residence permit providing her with permission to remain in the UK indefinitely, she had not done so. Mr Roehrig applied for a British passport in 2020 on the basis that as his mother had been “settled” in the UK at the time of his birth, he had thus automatically acquired British citizenship under the section 1(1)(b) of the 1981 Act. It was argued for Mr Roehrig that McCloskey J’s analysis in Capparelli [2017] UKUT 62 represented the correct approach and it was unlawful as a matter of EU law to maintain immigration controls in relation to nationals of EU Member States.

HC 590: Changes to MIR, Skilled Worker and other rules

Statement of Changes in the Immigration Rules HC 590 introduces much higher new minimum income requirements (MIR) which were announced by the Home Office on 4 December 2023 in what the Home Secretary James Cleverly called his “five-point plan” to reduce immigration. The spouse/partner visa MIR will initially rise to £29,000 on 11 April 2024 and then incrementally increase to £34,500 sometime later in 2024, and then ultimately to £38,700. Overall, Statement of Changes in the Immigration Rules HC 590 introduces changes primarily concerning the MIR, Skilled Worker route, the EU Settlement Scheme, Immigration Salary List and Asylum, Appendix AR: Administrative Review EU and other minor changes to other policy areas. As to the Skilled Worker route, the changes aim to reduce net migration by increasing the general salary threshold from £26,200 to £38,700 and to bring the salary requirements for individual occupations in line with median pay for resident workers in those occupations and replacing the Shortage Occupation List with a new Immigration Salary List. Apparently, the changes are an attempt to encourage businesses to invest in the resident workforce rather than over-relying on migration. The reason to raise the MIR is that it was not increased for over a decade and no longer reflects the level of income required by a family to ensure they are self-sufficient and do not need to rely on public funds. 

As to the EUSS, the changes expand the scope of the immediate settlement provisions in Appendix Victim of Domestic Abuse to include a spouse, civil partner or durable partner with pre-settled status under the EUSS (meaning that the relationship was formed before the end of the transition period on 31 December 2020), and their dependent children. In relation Skilled Workers, Sponsoring employers will need to pay Skilled Workers at least a general salary threshold or the going rate for the individual occupation, whichever is higher. Further, the general salary threshold is being raised from £26,200 (based on 25th percentile UK earnings in eligible occupations) to £38,700 (based on median UK earnings in eligible occupations). Going rates are also being raised from the 25th percentile to the median. The new thresholds and going rates are based on the latest Office for National Statistics (ONS) pay data. Workers sponsored for Health and Care visas, or in occupations where going rates are set using national pay scales, will be exempt from the new median salary requirements.

Appendix FM leave knocks out Zambrano right of residence

R (Akinsanya & Anor) v Secretary of State for the Home Department [2024] EWHC 469 (Admin) (11 March 2024)

Eyre J has held that before Brexit, the right to reside in the UK available to carers under the decision in Ruiz Zambrano v Office National de l’Emploi (C-34/09) [2012] QB 265 had not been excluded where the TCN carer had a realistic prospect of obtaining leave to remain under another provision. The Zambrano right was only excluded where the carer had been granted leave to remain under another provision. To the extent that the the EUSS under the Immigration Rules Appendix EU was based on a contrary view, it was based on a misunderstanding of the pre-Brexit law. The two claimants, Akinsanya and Aning-Adjei, were Nigerian and Ghanian nationals respectively who sought judicial review of decisions by the SSHD that they were not eligible for leave to remain under the Immigration Rules, Appendix EU. Prior to the EU-UK Withdrawal Agreement taking effect on 31 December 2020, EU law had provided that carers falling within the circumstances of the decision in Zambrano had a right to reside in the UK. That right extended to carers of EU citizens, where the citizen was also a citizen of the country where they were residing and the third country national (TCN) carer’s removal would mean that the citizen would have to leave the country in question. Appendix EU gave effect to the EUSS and provided for certain categories of person, including Zambrano carers, to be entitled to leave to remain in the UK following Brexit.

The definition provisions set out in Appendix EU had the effect that those who had leave to remain by virtue of another provision were not entitled to obtain leave to remain under Appendix EU. The combination of Appendix EU’s provisions and the SSHD’s guidance to caseworkers on Zambrano rights under the EUSS had the effect that those who would have a real prospect of obtaining leave to remain under another provision if they were to apply for it were also excluded from obtaining leave under Appendix EU. The claimants had both applied to be granted indefinite leave to remain under Appendix EU. At the time of their applications—and on the date the Withdrawal Agreement came into effect—they had obtained leave to remain granted under Appendix FM. Akinsanya, the first claimant, initially challenged the application to her of an earlier version of Appendix EU which had resulted in the decision in R (Akinsanya) v SSHD [2022] EWCA Civ 37 (see here) after which Appendix EU was revised by the SSHD who continued to understand Zambrano rights the same way. Both claimants’ challenges were considered in relation to the revised Appendix EU and the applications for judicial review were refused in a rolled up hearing in respect of both claims. 

Court of Appeal rejects invitation to treat EUSS family permit application as an EEA permit application

Siddiqa v Entry Clearance Officer [2024] EWCA Civ 248 (14 March 2024)

The Court of Appeal has held that the Upper Tribunal had not erred in finding that where the extended family member of an EU national had sought to enter the UK by applying for a family permit under the EU settlement scheme rather than an EEA permit under the Immigration (European Economic Area) Regulations 2016, regulation 8, the ECO had not been under any legal duty to consider the said application as if it had been made under the Regulations. The appellant Ms Tanjina Siddiqa appealed against a decision of the Upper Tribunal (Hill J and UTJ Kebede) upholding an entry clearance officer’s refusal to grant her out-of-country application to join her brother in the UK. The appellant’s brother Md Moin Uddin was a national of both Bangladesh and Portugal. He had been granted leave to remain in the UK under Appendix EU to the Immigration Rules and on 7 December 2020, Ms Tanjina Siddiqa applied under the Appendix EU (Family Permit) of the Immigration Rules to enter the UK to join her brother. She completed an online application, selecting the “drop-down” option which stated that she was a close family member of an EEA national and that she was applying for a family permit under the EU settlement scheme (EUSS). The entry clearance officer refused the application on the basis that she did not meet the eligibility criteria for an EUSS family permit which was not available to siblings. 

In the FTT, Ms Siddiqa argued on appeal that she met the requirements for an EEA family permit under regulation 8 of the 2016 Regulations on the basis that she was an “extended family member”, financially dependent on an EEA citizen exercising treaty rights in the UK. However, the FTT found that she had made her application under the EUSS family permit scheme and that there had been no duty on the entry clearance officer to consider an application for an EEA family permit which had not been made. The FTT decision was upheld on appeal to the UT. The court had to determine whether (i) the UT should have found that the FTT was wrong to hold that Ms Siddiqa had not appealed under the 2016 Regulations (ii) the EU-UK Withdrawal Agreement, article 18(1)(o) and article 18(1)(r) applied, and (iii) the approach taken by the ECO to her application infringed articles 10(3) and (5) of the EU-UK Withdrawal Agreement. The Court of Appeal dismissed the appeal and explained that under domestic law, the strict application of rules was permissible. It was the case that applicants were expected to make the proper applications and it was not for the SSHD “to chase shadows” to see if the applicant had intended to make a different application, as held in R (Behary) v SSHD [2016] EWCA Civ 702.

Test of dishonesty in Ivey applies to deprivation decisions

Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 (06 March 2024)

In a case raising an elementary issue of procedural fairness, the Court of Appeal allowed the appeal of Mr Ullah—a Pakistani national—against the UT’s erroneous decision to dismiss his appeal reversing the FTT’s first instance decision to allow his appeal from the SSHD’s decision to make an order to deprive him of British citizenship. The appeal arose out of the FTT’s finding that Mr Ullah, who had committed criminal offences, did not act dishonestly when he answered “No” to a question on Form AN asking whether there was, in effect, anything which might cast into doubt his good character. Mr Ullah gave oral evidence in chief in the FTT and addressed his state of mind at the point in time when he completed the form and gave exculpatory evidence. Dishonesty was denied. No cross-examination was conducted by the SSHD. The issue at the heart of the appeal turned on the probative weight to be attached to any evidence which is not challenged in the context of a finding about dishonesty. The case drew on the Supreme Court’s judgment, concerning civil law, in TUI UK Ltd v Griffiths [2023] UKSC 48 and confirmed that that the legal test of dishonesty entailed in Ivey v Genting Casinos [2017] UKSC 67 applies in the context of deprivation decisions under section 40(3) of the British Nationality Act 1981. Mr Ullah came to the UK in 2004 as a worker permit holder and was granted indefinite leave to remain in 2009. 

On 27 June 2012, he applied for naturalisation as a British citizen using Form AN which invited him to read Guide AN as well as Booklet AN. Section 3 of Guide AN was headed “Good character” and required the applicant to disclose anything which indicated that he was not of good character and contained a warning that checks would be made in that regard failing which the application fee would be forfeited. Mr Ullah ticked “No” when he answered the question “Have you engaged in any other activities which might indicate that you may not be considered a person of good character”. His application was granted and on 18 September 2012, he was issued with a certificate of naturalisation and became a British citizen. However, on 16 October 2012, he was arrested on suspicion of conspiracy to defraud the SSHD, fraud contrary to section 2 of the Fraud Act 2006, and possession of criminal property contrary to section 329(1) of the Proceeds of Crime Act 2002. His arrest followed a criminal investigation into large scale immigration fraud and his involvement with a gang of people associated with that fraud, involving the then highly skilled migrant programme (HSMP) and the creation of false employment or self-employment records to support falsified immigration applications under that route. He entered a guilty plead on the possession of criminal property which related to £80,532.35 that had been paid into his bank account.

Trafficking plea fails Shamima Begum in Court of Appeal

Begum v Secretary of State for the Home Department [2024] EWCA Civ 152 (23 February 2024)

The Court of Appeal has held that the SSHD had not erred in depriving Shamima Begum of her British citizenship pursuant to section 40(2), on grounds of conduciveness to the public good, of the British Nationality Act 1981 after she had travelled to Syria at the age of 15 and aligned herself with the militant group the Islamic State of Iraq and the Levant (ISIL). The mere fact that there was a credible suspicion that Shamima Begum had been trafficked for the purpose of sexual exploitation did not render the deprivation decision unlawful and nor did the fact that she would be rendered de facto stateless. Shamima Begum had not been entitled to make representations before the deprivation decision was made. Further, she could not rely on the public sector equality duty (PSED) to challenge the decision and the duty was excluded in relation to the decision by the national security exemption in the Equality Act 2010 under section 192. This was the unanimous judgment handed down by Lady Carr LCJ and Bean and Whipple LJJ upon Ms Begum’s appeal against a decision of the Special Immigration Appeals Commission (SIAC) to uphold the SSHD’s decision to deprive her of her British citizenship. Ms Begum born in the UK in 1999. Through her parents, she had Bangladeshi citizenship which would expire on her twenty first birthday. In 2014, a friend of Ms Begum had travelled to Syria to join ISIL. Her school considered that she could be at risk of also going to Syria, but the police investigated and concluded that she was not at risk.

However, in 2015, aged 15, Ms Begum travelled to Syria, aligned with ISIL, and she was married to an older man. ISIL then suffered military defeats and Ms Begum surrendered to opposing forces in 2019. She wished to return to the UK. However, the SSHD decided to deprive her of British citizenship on national security grounds. Ms Begum appealed to SIAC. She was not permitted to return to the UK to pursue her appeal. SIAC found that there was a credible suspicion that she had been trafficked for the purpose of sexual exploitation and that the authorities’ actions before her departure arguably breached their duties to protect her. SIAC nevertheless held that she was now beyond its protection and that trafficking was not relevant to the deprivation decision. The police concluded that Ms Begum was not at risk. SIAC said that this conclusion may be thought to be “somewhat myopic”. Ms Begum’s school considered that due to her friendship ties with Sharmeena Begum (who enticed others to join ISIL) there was a risk that she could be encouraged to leave her family, and possibly the UK, and go to Syria. However, SIAC concluded that it appears that the school allowed the police assessment to overrule that concern. Until her departure to Syria in February 2015, Ms Begum was living with her mother and older sister in Tower Hamlets. On 17 February 2015, Ms Begum and her two friends gave their families false reasons as to why they would be absent that day. They travelled together to Gatwick Airport. Ms Begum used her sister’s passport which she had stolen. They went to Istanbul on a Turkish Airways flight and then quickly proceeded to Syria to join ISIL. 

Three year delay in making decision on application is lawful

Zhou & Ors, R (On the Application Of) v Secretary of State for the Home Department [2024] EWCA Civ 81 (07 February 2024)

The Court of Appeal has held that UT Judge Frances had not erred in refusing a family permission to seek judicial review of the SSHD’s almost three-year delay in making a decision in respect of their applications for leave to remain in UK. The SSHD’s deferral of a decision, pending the outcome of a National Crime Agency (“NCA”) investigation and charging decision in respect of allegations of money laundering relating to the father, was not unlawful, irrational or unreasonable. Mr Zhou, the first appellant, and Mrs Zhou were husband and wife and Ms Zhou was their daughter. They were Chinese nationals. Mr Zhou arrived in the UK from China in 2005 with leave to enter until 2006. He was permitted to remain in the UK under a sequence of subsequent permissions until April 2018. Mrs Zhou joined him in 2010. Ms Zhou was born in China but had lived in the UK for most of her life. In 2018, Mr Zhou was refused indefinite leave to remain as a Tier 1 General (Migrant) Worker and his application for administrative review was also refused. He applied for judicial review of the decision, but this application was withdrawn by him. In March 2021, he was arrested with others on suspicion of money laundering. He denied any wrongdoing and was released pending further investigation and a charging decision. In June 2021, Mr Zhou applied for leave to remain as a Tier 2 Skilled Worker and was sponsored by a financial services company. His family also applied for leave to remain as his dependants. 

They were overstayers by then and on immigration bail. In July, the Home Office stated that no decision would be taken on the new applications until the “outstanding criminal prosecution” had concluded. It was accepted that reliance on that statement was wrong as no charging decision had been made. In February 2022, a pre-application letter of claim was served on the SSHD who apologised for the ongoing delay and stated that a decision was expected by April 2022. In April 2022,  judicial review proceedings were issued and sought to challenge the July 2021 and February 2022 decisions. The NCA informed the SSHD that a charging decision was expected in August 2022 and in June 2022, the Zhou family’s permission application was refused and in July 2022, a renewed application was refused following an oral permission hearing. The UT, following the decision in R (on the application of X and others) v SSHD [2021] EWCA Civ 1480, held that the SSHD had an implied power under the Immigration Act 1971 to defer, or delay, making a decision on an application for leave to remain, and that the delay was not arguably unlawful or irrational. The family were granted permission to appeal against that decision. However, in August 2023, they made a further application for leave to remain, based on their rights under article 8 of the ECHR, expressed as an application to vary their outstanding application. Mrs Zhou was the lead applicant, with Mr Zhou and Ms Zhou as her dependants. They unsuccessfully argued that the delay in processing their application was unjustified given the “hostile environment” they were exposed to which includes severe restrictions on the right to work, rent accommodation, access to the NHS, and/or the ability to have a bank account. 

Court of Appeal: FTT failed to apply Iran country guidance to Kurdish asylum seeker’s case

FA (Iran) v Secretary of State for the Home Department [2024] EWCA Civ 149 (22 February 2024)

The Court of Appeal has held that the UT should have concluded that the FTT had failed to apply the current Iran country guidance cases to the appellant FA’s case, who was a Kurdish National of Iran who claimed to have left Iran illegally on foot, and claimed to have got married en route to the United Kingdom. He had entered the United Kingdom on 4 December 2019 and then claimed asylum. The SSHD rejected his claims for asylum and for humanitarian protection. The appeal was remitted to a different judge in the FTT for him to consider the question of risk to the appellant if he were returned to Iran. The Court of Appeal grappled with the two determinations at hand, i.e. the FTT determination and the UT determination which Elisabeth Laing LJ referred to as determination 1 and determination 2 during the course of her judgment. She touched on the effects of XX (PJAK – sur place activities – Facebook) Iran CG [2022] UKUT 23, SSH and HR (Illegal Exit) Iran CG [2016] UKUT 308, HB (Kurds) Iran CG [2018] UKUT 430 and also BA (Demonstrators in Britain: Risk on Return) Iran CG [2011] UKUT 136. The SSHD’s case was that FA admitted in his asylum interview that he was a supporter of the Kurdish Democratic Party of Iran (“KDPI”) and not a member. The SSHD considered it strange that FA had not been introduced to the KDPI until he was 29 and considered that the answers to questions in the the asylum interview were inconsistent.

The SSHD referred to SSH and HR and HB (Kurds) and to the CPIN dated February 2019 about illegal exit and said was that the mere fact of being a Kurdish returnee without a valid passport who had left Iran illegally did not create a relevant risk. He also concluded that as FA’s claim to be a supporter of the KDPI had been rejected and because he had not spent time in the Kurdish area of Iraq, he was thus not of adverse interest for his political opinion. He had no relevant criminal or political profile. The SSHD also considered the guidance case of BA (Demonstrators in Britain: Risk on Return) when considering FA’s sur place activities. The SSHD’s assessment of the screenshots of Facebook posts on which FA relied was that those posts were not in his real name and that none showed him in a photograph, so that there was nothing to tie them to him. Overall, they were self-serving and could be deleted and the SSHD’s conclusion was that the authorities would not be interested in FA. His own factual account was detailed and he did not know where he was born. He had been found and handed in to a Mosque. His mother told him that he was only 10-20 days old when he was given to her, and that he did not have any siblings. He did not go to an official school, but was educated at the Mosque for three years. 

SSHD’s appeal on Bouchereau exception dismissed by Court of Appeal

Secretary of State for the Home Department v Okafor [2024] EWCA Civ 23 (23 January 2024)

The Court of Appeal has held that UT Judge Grubb’s decision to allow the appeal of Mr Okafor, a Nigerian citizen against the refusal of his leave to enter the UK under the EU Settlement Scheme, notwithstanding his previous conviction for serious drug offences and subsequent related disclosure failures when applying for leave to enter, disclosed no error of law that justified or permitted interference. The judge had considered the cumulative effect of all relevant matters and had not erred in concluding that the individual’s overall conduct did not fall within the exception in R v Bouchereau (Case 30-77) [1978] QB 732 such as to justify his exclusion on the basis that it represented a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society” under regulation 27(5)(c) of the Immigration (European Economic Area) Regulations 2016. Moylan, Stuart-Smith and Snowden LJJ dismissed the SSHD’s appeal and upheld UT Judge Grubb’s decision to allow Mr Okafor’s appeal against the cancellation and refusal of his leave to enter the UK. Mr Okafor was married to a Swedish national who had been granted indefinite leave to remain in the UK in 2019. He was granted entry clearance under the EUSS in July 2020. On his arrival in the UK in September 2020 with an EUSS family permit, he was refused admission on public policy grounds. His permit was revoked and his leave to enter cancelled under paragraph 321B of the Immigration Rules. 

The basis for the decision was that Mr Okafor had been convicted in the US in 1994 of drug offences and sentenced to 350 months’ imprisonment. He had served almost 26 years before being released in 2019 and was removed to Nigeria. Mr Okafor did not disclose his conviction or deportation when applying for the EUSS permit or in two earlier visit visa applications. His US conviction was for the offence of conspiracy to possess with intent to distribute heroin. He had been imprisoned since his arrest in December 1992 in relation to that offence prior to his removal. Mr Okafor appealed the SSHD’s decision to refuse him admission to the FTT. In May 2020, FTTJ Mailer allowed his appeal. FTTJ Mailer was not satisfied that the decision-maker had established on a balance of probabilities that Mr Okafor conduct represented a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Mr Okafor exclusion from the UK could not, therefore, be justified under EU law. The SSHD appealed to the UT, which set aside the decision, finding that the FTT had failed to consider the Bouchereau exception. The UT subsequently remade the decision, allowing his appeal on the basis that his conduct did not fall within the Bouchereau exception. The UT subsequently remade the decision by allowing his appeal on the basis that his conduct did not fall within theexception which arises when an individual’s conduct can be said to engender “deep public revulsion” and allows exclusion even without a propensity to re-offend. 

Court of Appeal: SSHD wins in child sex offences case

Secretary of State for the Home Department v AA (Poland) [2024] EWCA Civ 18 (19 January 2024)

The Court of Appeal has held that the FTT had erred in law in finding that the deportation of a foreign criminal who had served a four-year custodial sentence for child sex offences would infringe his rights pursuant to the EU Treaties as implemented by the Immigration (European Economic Area) Regulations 2016 and his right to respect for private and family life under article 8 of the ECHR. A Polish national, AA moved to the UK. In April 2007 he met his wife K who had moved to the UK from Poland earlier that year. They were married in 2012 and in January 2014, AA gained a Master’s degree in aeronautical engineering. In July of the same year AA and K’s daughter V was born. At this point AA began openly questioning his gender identity. His name was anonymised not for his own sake but only because it was a necessary measure for the protection of his daughter V who was a victim of the relevant offending as an infant and benefitted from the right to lifetime anonymity provided for by the Sexual Offences (Amendment) Act 1992. AA was not entitled to “imperative grounds” protection within article 28(3) of Directive 2004/38 and regulation 27(4) of the 2016 Regulations, because he was insufficiently integrated into the UK community. AA was convicted in 2018 of child sex offences. He was sentenced to five years’ imprisonment and made subject to the sex offender registration and notification requirements for 10 years. A wide-ranging sexual harm prevention order (SHPO) was also made.

In December 2020, the custodial portion of his sentence came to an end and the SSHD concluded that he constituted a genuine, present, and sufficiently serious risk to the public to justify his deportation on grounds of public policy and public security, and that it was proportionate to order his removal to Poland. The Court of Appeal found that this was not an exceptional case involving particularly strong features such as to allow the FTT to depart from the general normative guidance laid down by regulation 27(8) and Schedule 1, paragraph 4 to attach “little weight” to any integrating links formed “at or around the same time as” any offending or imprisonment. The SSHD accepted that AA had a right of permanent residence and had resided in the UK for at least 10 years, but found he was not entitled to “imperative grounds” protection within article 28(3) of Directive 2004/38 and regulation 27(4) because he was insufficiently integrated into the UK community. He also accepted that the case fell within the “serious grounds” category (set out in article 28(2) and regulation 27(3)) but concluded that this threshold was met. The SSHD rejected his human rights claim on the basis that, although Part 5A of the Nationality, Immigration and Asylum Act 2002 did not apply directly as he was an EEA national the provisions of Part 5A were relevant. The conclusion of the SSHD was that he had not shown that either of the exceptions in section 117C(4) and section 117C(5) applied, or that there were “very compelling circumstances” over and above those exceptions pursuant to section 117C(6).

Appendix FM and changes of £29,000 and £38,700 to MIR

“MIR”, an acronym for “Minimum Income Requirement”, has become a menacing buzzword in the hostile world of UK immigration law which is required as annual income to sponsor a spouse. From 11 April 2024, MIR will be increased from £18,600 to £29,000 and will subsequently rise to £38,700. MIR, set out as Appendix FM of the Immigration Rules, first arrived on the scene when Conservatives came to power in May 2010 and in July 2012 Theresa May, who was the Home Secretary at the time, pledged to reduce net migration and introduced income requirements for spouses coming to the UK. Before the introduction of the MIR, the rules required that the parties would be able to maintain and accommodate themselves and any dependants they have “adequately in the UK without recourse to public funds”, which included social housing and most welfare benefits but not the NHS, education and social care. The spin put on the MIR, during those days, was that these measures entailing a minimum income threshold of £18,600 (which 41% of the UK’s working population fell foul of) were necessary and were in the UK’s best interests. This caused widespread outrage and in the ensuing litigation, at first instance in R (MM (Lebanon) & Ors) v SSHD [2013] EWHC 1900 (Admin) the High Court held that the the MIR was unlawful and aggrieved persons enjoyed a measure of success before Blake J who held that to expect low wage earners with savings of £3000 to have £16000 in specified savings was “a rather cruel piece of mockery”. Overall, Blake J found the combination of more than one of the following five features of the “new rules” set out in Appendix FM to be so onerous in effect as to constitute a disproportionate and unjustified interference with a genuine spousal relationship. 

Blake J five features were, the setting of the minimum income level to be provided by the sponsor at above the £13,400 level identified by the Migration Advisory Committee “MAC” as the lowest maintenance threshold under the benefits and net fiscal approach; the requirement of £16,000 before savings were usable to contribute to rectify an income shortfall; the use of a 30 month time period for forward income projection, as opposed to a 12 month time period; disregard of even credible and reliable evidence of undertakings of third party support effected by deed and fully supported by evidence of ability to fund; and the disregard of the spouse’s own earning capacity during the 30 month period of initial entry. But things were different on appeal. In an awkwardly written judgment R (MM (Lebanon) & Ors) v SSHD [2014] EWCA Civ 985, Maurice Kay, Aikens and Treacy LJJ allowed the government’s appeal. The Supreme Court held that the MIR—containing a core feature that demands a gross annual income of £18,600 to sponsor a partner for a visa and an additional requirements of £3,800 for the first child and £2,400 for each child thereafter—was lawful and in a collaborative judgment, Lady Hale and Lord Carnwath held that the challenge to the MIR’s validity failed. However, the court declared that the rules are unlawful because of their failure to give effect to the section 55 duty concerning children’s welfare. The Supreme Court’s judgment (reported as [2017] UKSC 10) was unanimous and Lord Kerr, Lord Wilson, Lord Reed Lord Hughes and Lord Hodge agreed with Lady Hale and Lord Carnwath.

Palestinian Guantánamo Bay detainee wins in Supreme Court

Zubaydah v Foreign, Commonwealth and Development Office and others [2023] UKSC 50 (20 December 2023)

Dismissing the Foreign Commonwealth and Development Office, the Home Office and the Attorney General’s appeal, the Supreme Court held in this case that under sections 11 and 12 of the Private International Law (Miscellaneous Provisions) Act 1995 (“PILA”) the law applicable to torts alleged to have been committed by the UK’s security agencies is the law of England and Wales and not the law of each of the six countries in which Mr Zubaydah alleges he was unlawfully detained and tortured by the American CIA. Mr Abu Zubaydah (Zayn Al-Abidin Muhammad Husayn) has been detained without trial by the US authorities since March 2002. He is Palestinian and is currently held in Guantánamo Bay. He claims that from at least May 2002 to at least 2006, whilst he was being rendered to, detained in and subjected to extreme mistreatment and torture at secret “black sites” by the the CIA, the Security Service and the Secret Intelligence Service (“the UK Services”) sent numerous questions to the CIA in order to elicit information from him. He wants to be compensated for personal injuries which he contends were sustained in pursuit of the information sought by the UK services in CIA black site facilities in the “Six Countries”, i.e. Thailand, Poland, Morocco, Lithuania, Afghanistan and Guantánamo Bay. Mr Abu Zubaydah brought a claim and named the Foreign, Commonwealth Office, the Home Office and the UK Attorney General as defendants on the basis that they are vicariously liable for the acts of the UK Services.

Notably, under the law of England and Wales, the torts alleged against the UK authorities were misfeasance in public office, conspiracy to injure, trespass to the person, negligence and false imprisonment. In the first instance, the High Court ordered that as a preliminary issue the law governing the torts should be identified. His primary case is that the law of England and Wales applies whereas the defendants argue that the laws of each of the Six Countries apply. The High Court (Lane J) agreed with the defendants—but the Court of Appeal (Males, Sharp and Thirlwall LJJ) overturned that decision. Mr Zubaydah was held for years in detention conditions specifically designed to isolate and disorientate him, he is not able to give detailed evidence, for e.g., as to the countries or the locations in those countries in which he was detained and tortured or as to the dates between which he was detained in those countries. Furthermore, the exceptionally grave mistreatment allegedly inflicted on him over a period of years has resulted in lasting damage so that he is unable to comprehend and remember the dates and locations of his torture. In addition, he is still detained in Guantánamo Bay with strict restrictions on his ability to communicate with his legal representatives.

Court of Appeal examines procedural unfairness in EEA family permit case and holds FTT acted unfairly on remittances

Abdi & Ors v Entry Clearance Officer [2023] EWCA Civ 1455 (07 December 2023)

The Court of Appeal has held that the FTT had acted unfairly during the hearing of an appeal against the SSHD’s refusal of Dahir Elmi Abdi, Ubah Elmi Abdi and Mahrez Sharif Hassan’s applications for EEA family permits by failing to give them and their brother Ashkir Elmi Abdi, an EEA national on whom they claimed to be financially dependent, an opportunity to address the point on which it dismissed their appeal, i.e. the remittances demonstrating dependence did not come from him, based on a calculation showing that his declared income in the UK could not have supported the amounts he claimed to have sent, and therefore they were not financially dependent on him. The three Somali nationals did not fall within the definition of family member in Regulation 7 of the Immigration (European Economic Area) Regulations 2016 but sought to bring themselves within the definition of an extended family member in Regulation 8. This required them to establish that they are a relative of an EEA national, that they were residing in a country other than the UK, and that they were dependent upon the EEA national. The issue which arising in the case was whether in the words of Regulation 8(2)(b) they are “dependent upon the EEA national”. If so, an EEA family permit should have been granted in accordance with Regulation 12(4). The SSHD did not appear in the FTT during the CVP hearing and the sponsor Ashkir Elmi Abdi was not cross-examined. 

Ashkir Elmi Abdi fled to the Netherlands in 2008 where he was granted asylum. In April 2015 he became a Dutch national. He came to the UK in September 2015 and had settled status under the EUSS. He was self-employed as a taxi driver. The bundle before the FTT contained receipts evidencing the money transfers said to have been made by Ashkir to Dahir and Ubah between 2019 and 2021 confirming Ashkir’s evidence as to the payments made to Dahir and Ubah (who were living in Kenya) during that period. Overall, FTTJ Bartlett was not satisfied that Ashkir was the source of the funds either sent to or used by the appellants for their essential living needs. She explained her reasons as that the bundle included tax returns for Ashkir for 2019 and 2020, and as to 2021 she said “there is also a tax return in respect of 2021 which may not be complete but is also accompanied by an accountant’s letter confirming the figures.” This last set of documents, for the 2020/21 tax year, showed “net business profit also described as total taxable profit of £5627”. She also calculated that the payments made by Ashkir Abdi to Dahir and Ubah during the tax year 2020/21 in total amounted to payments of $6,875 and 75,374 Kenyan Shillings or £5,500. She compared that with the total business profit of £5,627, and said that that would mean that Ashkir had only £127 for the entire year to meet his own essential living expenses. 

Court of Appeal quashes Upper Tribunal’s article 8 decision in deception case

Kaur v Secretary of State for the Home Department [2023] EWCA Civ 1353 (17 November 2023)

In this case, the Court of Appeal remitted to the Upper Tribunal an Indian national’s claim based on the right to respect for family life under article 8 of the ECHR where the original Judge had failed to conduct a proper proportionality assessment or balancing exercise, or to explain the weight she had attributed to the factors relevant to her refusal of the claim. Judge Gleeson had also materially erred in stating that the applicant and her husband were both Indian citizens, whereas the husband was a naturalised British citizen and there was no evidence that he held dual citizenship. Gurdeep Kaur was granted leave to remain as a student until 2012 after coming to the UK in 2008 on a Working Holiday Maker Visa. She met Harjinder Singh in 2009 who entered the UK clandestinely and—when they met—he had no lawful status but was granted ILR on the basis on 14 years unlawful residence and then became a naturalised British citizen in 2012. The couple had married in 2010 and in 2013, Mrs Kaur was granted leave to remain as a spouse. In making the application, she had relied upon a fraudulently obtained English language certificate from the Educational Testing Service (ETS). Her leave to remain was cancelled on the basis that she had made false representations (i.e. deception) in her application and she challenged the cancellation decision, asserting her claim under article 8. The First-tier Tribunal dismissed her challenge. 

She appealed to the Upper Tribunal, where she and her husband gave evidence that they had attempted to undergo IVF treatment but were prevented from continuing because the SSHD held her passport, and that there would be family disapproval if they returned to India because of their marriage. The Upper Tribunal was of the view that the SSHD had been entitled to treat her as someone who had used deception to obtain an ETS certificate and she could not bring herself within article 8 since there was no evidence of the family disapproval relied upon and that there were no significant obstacles to her reintegration in India on her return, either alone or with her husband. The Upper Tribunal identified that two issues arose for decision. First of all, whether indeed the SSHD was entitled to reach the conclusion that she did on the deception issue. Second, whether Mrs Kaur’s removal now would be disproportionate under article 8 even if the deception allegation was made out. She conducted a thorough review of the evidence. Although it concentrated mainly on the deception issue, Judge Gleeson also recorded relatively limited evidence that could be relevant to the article 8 issue. She dismissed Mrs Kaur’s case. She found against Mrs Kaur on the deception issue, concluding that the SSHD did not err in treating Mrs Kaur as a someone who had used deception by using a proxy test taker at an acknowledged “fraud factory”. There was no appeal against that finding.

Supreme Court dismisses long residence appeals

Afzal, R (on the application of) v Secretary of State for the Home Department [2023] UKSC 46 (28 November 2023)

In dismissing these two appeals, the Supreme Court has held that for the purposes of an application for indefinite leave to remain (“ILR”) in the UK on the ground of long residence, the word “disregarded” in paragraph 276B(v) of the Immigration Rules meant only that a book-ended (i.e, a previous overstaying between periods of leave) period of overstaying did not break continuity between the periods of residence with leave before and after it, so that they could be added together in calculating the 10-year period for continuous lawful residence in the UK. It did not mean that the period of overstaying could be counted as an addition for the purposes of that calculation. Both the appeals of Mr Afzal and Mr Iyieke concerned the question whether they were entitled to be granted ILR in the UK. Both appellants challenged decisions upholding the respondent SSHD’s refusal of their ILR applications on the ground of long residence in the UK pursuant to paragraph 276B. Since 2010, Mr Afzal had successively been given leave to remain. On 6 July 2017, shortly before expiry of his leave, he made a further application for leave and applied for waiver of the relevant fee. On 18 October, his waiver application was rejected and he was notified that he had to pay the fee together with the Immigration Health Surcharge (“IHS”) due under the Immigration (Health Charge) Order 2015. He failed to pay the IHS and on 22 January 2018 he was notified of the rejection of his application. 

Subsequently, on 2 February 2018, Mr Afzal made a fresh application for leave which was granted on 5 September 2019. In February 2020, he applied for ILR on the basis of 10 years’ continuous lawful residence in the UK. But the application was refused on the ground that his presence between 14 July 2017 and 5 September 2019 had been unlawful. Mr Iyieke entered the UK in February 2011. His leave to remain expired on 9 August 2014. He applied for leave to remain on 2 September 2014. However, the application was refused on 29 October. He challenged the refusal and was granted temporary admission on 28 November, but the 2 September application was not successful. He was thereafter granted leave to remain on human rights grounds. It was common ground that this meant that his temporary admission from 28 November counted towards his claimed period of 10 years’ continuous lawful residence. There was therefore a gap of 111 days between the expiry of leave on 9 August and the temporary admission on 28 November. In 2021, he applied for ILR, but his application was refused. Notably, Mr Afzal submitted that the period of his overstaying fell to be disregarded: his fresh application for leave on 2 February 2018 satisfied the requirements of paragraph 39E(2)(b)(ii) because it was made following the refusal of a previous application for leave (6 July 2017) which was made in time (before his existing grant of leave expired on 14 July 2017) and within 14 days of the expiry of an extension of leave under section 3C of the Immigration Act 1971, taking 22 January 2018 as the date when that previous application was decided.