Hoque & Ors v Secretary of State for the Home Department [2020] EWCA Civ 1357 (22 October 2020)
The Court of Appeal has deeply criticised the “labyrinthine structure” and “idiosyncratic drafting” of the the Immigration Rules and “the confused language and/or structure of particular provisions.” These unflattering remarks were made by the court in the cases of Messrs Hoque, Kabir and Mubarak – all Bangladeshis – and Mr Arif – a Pakistani – who all arrived in the UK more than 10 years ago with leave to enter as students and received further grants of leave to remain since then. They claimed their long residence entitled them to indefinite leave to remain (ILR). The SSHD did not accept that they were entitled to ILR essentially because at the time of their applications their leave to remain had expired and they were overstayers. Hoque, Kabir and Arif’s appeals concerned the issue whether they were entitled to ILR under the long residence provisions of the Immigration Rules, which turned on the correct interpretation of paragraph 276B. Alternatively, they claimed that the refusal of ILR breached their rights under article 8 of the ECHR and Mubarak only relied on article 8. Significantly, their last period of limited leave had expired before they had accumulated 10 years’ continuous lawful residence. They did not make any further application before the expiry of that leave and did not benefit from the operation of the provision in section 3C of the Immigration Act 1971 and thus became overstayers who remained in the UK unlawfully.
They did make further applications for leave within the 14-day time limit (Arif and Kabir) or 28-day time limit (Hoque) from the expiry of their earlier leave but those applications were subsequently varied so as to become applications for ILR and were pending at the tenth anniversary of their arrival in the UK but were subsequently refused. The court said that these were cases of open-ended overstaying. All the applications were refused by the SSHD. In each case the decision-maker refused ILR on the basis that it followed from the facts that as from the expiry of the last period of limited leave to remain their residence had not been lawful and thus they could not satisfy the requirements of paragraph 276B(i)(a) which stipulates that an ILR applicant on the grounds of long residence needs to have “had at least 10 years continuous lawful residence in the United Kingdom”. The appeals in these cases primarily focussed on the effect paragraph 276B(v). Significantly, that sub-paragraph consisted of three elements: [A] the applicant must not be in the UK in breach of immigration laws, [B] except that where paragraph 39E of the rules applied any current period of overstaying would be disregarded, and [C] any previous period of overstaying between periods of leave would also be disregarded where – (a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave, or (b) the further application was made on or after 24 November 2016 and paragraph 39E applied.
Background
The two kinds of overstaying in element B (current overstaying) and element C (previous overstaying between periods of leave) are referred to as “open-ended” and “book-ended” overstaying. “Continuous residence” is defined in paragraph 276A(a) as residence in the UK for an unbroken period, and a period of residence is not be considered to have been broken where an applicant is absent from the UK for a period of six months or less at any one time. “Lawful residence”, for the purposes of these appeals, meant residence which is continuous residence pursuant to existing leave to enter or remain. The appellants argued that the period of overstaying since the expiry of their last leave to remain to remain fell to be disregarded pursuant to element [B] in paragraph 276B(v) as the period between the expiry of their previous leave and the date of decision constituted “current” overstaying. They said that the effect of the disregard was that the period in question fell to be treated as continuous lawful residence, with the result that the requirement in paragraph 276B(i)(a) was satisfied.
The SSHD submitted that the various sub-paragraphs of paragraph 276B constitute self-contained requirements and accordingly that the disregard in sub-paragraph (v) on which the appellants relied could not have had any effect on the mechanics of sub-paragraph(i).
Paragraph 276B(v) authorities
The present appeals needed to be evaluated against the backdrop of the two decisions in R (Juned Ahmed) v SSHD [2019] UKUT 10 (IAC) and R (Masum Ahmed) v SSHD [2019] EWCA Civ 1070 in which the effect of paragraph 276B(v) was considered. Juned Ahmed was a decision of the Upper Tribunal and Masum Ahmed was a decision of the Court of Appeal to refuse permission to appeal. Neither decision was binding on the present Court of Appeal. Juned Ahmed concerned materially identical facts as the present cases and the SSHD relied on paragraph 276B(i)(a) and the migrant relied on paragraph 276B(v). It was held that the definition of “lawful residence” in paragraph 276A(b) rendered it hopeless to argue that the applicant could meet the first requirement under paragraph 276B(i)(a).
It was Sweeney J’s view that the structure of paragraph 276B, read with paragraph 276D, made it obvious that paragraph 276B(v) was a freestanding requirement additional to sub-paragraph (1)(a) and was consistent with the general amendment of the rules to the effect that applications for leave to remain by persons who have overstayed for more than 28 days will be refused on that ground. The court found no arguable merit in the point that the applicant was to be treated, for the purposes of paragraph 276B, as if he had leave to remain and thus had “lawful residence”, nor in the argument that the SSHD’s construction would lead to starkly unfair results to applicants. Instead, it was readily foreseeable that if applicants were to be so treated, it would create fertile ground for the abuse of the system.
Masum Ahmed was a case of book-ended overstaying and differed from the present cases in the sense that the claimant had leave to remain at the date of his application. However, there were two periods during the relevant 10 years during which he was an overstayer as his previous leave had expired. Although he was in due course granted a further period of leave, he had not applied in time and so did not enjoy section 3C leave. The SSHD argued that the two periods of overstaying meant that the period of his lawful residence was not “unbroken”, as required by paragraph 276A(a). The migrant argued that the gaps attracted the operation of paragraph 39E and fell to be disregarded under paragraph 276B(v). But the Upper Tribunal rejected that argument. While refusing the application for permission to appeal, the Court of Appeal adjudged that paragraph 276B(v) does not have that effect of curing short “gaps” between periods of leave to remain so as to entitle applicants with such gaps to claim 10 years continuous lawful residence under paragraph 276B(i)(a). In essence, Floyd and Haddon-Cave LJJ had adjudged that each of the five sub-paragraphs of paragraph 276B provided for a distinct, free-standing, requirement and there was no cross-reference between them. The court concurred with Sweeney J in Juned Ahmed that paragraph 276B(v) involved a freestanding requirement over and above the requirements of paragraph 276B(i)(a).
The Court of Appeal
Underhill and Dingemans LJJ agreed – McCombe LJ dissenting – that the appeals had to be dismissed. Dingemans LJ agreed with Underhill LJ’s judgment but, as McCombe LJ did not agree with their construction of paragraph 276B(v) of the Immigration Rules, he gave his reasons for agreeing with Underhill LJ. All three judges gave separate judgments and their comments demonstrated the courts’ continuing frustration with the poor drafting that has plagued the Immigration Rules for decades. The court rebuked the poor drafting of the Immigration Rules and the bad effects of the confused language and/or structure of particular provisions. It was highly unimpressed with the appalling state of the rules.
Underhill LJ commenced his analysis by expressing agreement with Sweeney J in Juned Ahmed and with the Court of Appeal in Masum Ahmed that the structure and language of paragraph 276B make it clear that the requirements identified at sub-paragraphs (i)-(v) are intended to be free-standing and self-contained. In normal circumstances, it would follow that any disregard contained in a particular sub-paragraph would relate to that requirement only, and so the appellants could not invoke the disregards in sub-paragraph (v) to remedy their inability to satisfy the requirements of sub-paragraph (i)(a). On the other hand, “it is not as straightforward as that” and Underhill LJ judged that “effect of sub-paragraph (v) is in fact seriously problematic.” Notably, element [A] states the actual requirement which sub-paragraph (v) imposes, namely that the applicant must not “be in the United Kingdom in breach of immigration laws”.
Underhill LJ accepted the SSHD’s submission that “the two sub-paragraphs have entirely distinct roles, focused on different points in time.” Sub-paragraph (v) was expressed in the present tense – “must not be in the UK …”. It was thus addressed to the applicant’s status at the moment of decision. However, sub-paragraph (i)(a) was expressed in the past tense and related to 10 years’ continuous lawful residence. Notably, the last sentence of sub-paragraph (v) referred to overstaying between periods of leave and therefore it could not belong in sub-paragraph (v). It was a drafting error and should have been placed in sub-paragraph (i)(a). That conclusion was reinforced by a consideration of the drafting history of paragraph 276B(v) and the Explanatory Memorandum that accompanied the Statement of Changes HC 667 (at paragraphs 7.45-7.49 of the Explanatory Memorandum).
The problem was with element [C]. Disregard for which it provides applies to “previous periods of overstaying between periods of leave”. Underhill LJ found that overstaying of that character had no possible application in the context of the requirement which sub-paragraph (v) imposed which was linked only with the applicant’s immigration status at the date of decision, to which previous book-ended periods of overstaying could never be relevant. Underhill LJ stated “there is a frank disconnect between the disregard and the requirement to which it appears to be applied. That is in fact reflected in the way that element [C] is verbally linked to the rest of the paragraph.” Furthermore, element [C] took the form of a self-contained sentence to the effect that the relevant overstaying “will also be disregarded”. Bearing all this in mind, Underhill LJ held that:
34. … In short, element [C] does not belong in sub-paragraph (v). The only context in which previous periods of overstaying between periods of leave – and thus also a provision that they be disregarded – would matter is the requirement of ten years’ continuous lawful residence, which would of course otherwise be broken by a period of overstaying between periods of leave. If element [C] is to have any effect it belongs in sub-paragraph (i) (a).
35. It follows that we are faced with a choice between, on the one hand, giving element [C] no effect and, on the other, treating its placing within paragraph 276B as a drafting error and applying it as if it qualified sub-paragraph (i) (a). In my view we should choose the latter. It is unfortunately not uncommon for tribunals and courts to have to grapple with provisions of the Immigration Rules which are confusingly drafted, but it is our job to try to ascertain what the drafter intended to achieve and give effect to it so far as possible. In this case it is clear from its terms what the intended effect of element [C] is, but it has been put in the wrong place. Treating it as if it appeared in sub-paragraph (i) (a) does violence to the drafting structure, but I do not believe that that is a sufficient reason not to give effect to it.
Underhill LJ added that paragraph 276B(v)’s drafting history reinforced that conclusion which was also supported by the Home Office’s Guidance on “Long Residence” (version 15) on gaps in lawful residence. The said guidance directed decision-makers to grant the application if an applicant: (i) has short gaps in lawful residence through making previous applications out of time by no more than 28 calendar days where those gaps end before 24 November 2016, (ii) has short gaps in lawful residence on or after 24 November 2016 but leave was granted in accordance with paragraph 39E of the Immigration Rules, and (iii) meets all the other requirements for lawful residence. These three points clearly intended to reflect element [C] in sub-paragraph (v).
In Mahad v ECO [2009] UKSC 16 Lord Brown disapproved the use of IDIs (predecessors to guidance documents) as an aid to construction and in Masum Ahmed the court referred to Lord Brown’s observations in the context of this very issue. However, in Pokhriyal v SSHD [2013] EWCA Civ 1568 Jackson LJ noted a qualification to that approach in cases where a rule is ambiguous and the SSHD has in her published guidance adopted the more favourable interpretation to applicants. Masum Ahmed dealt with the situation where 10 years’ continuous lawful residence were claimed when past applications had been made, and granted, with the benefit of paragraph 39E. Overall, Underhill LJ was of the view that element [C]’s intended scope was certainly ambiguous, given the mismatch between its terms and placing within the paragraph, and so the interpretation Underhill LJ believed to be correct was more favourable to applicants. Furthermore, explaining that the terms of the guidance were not essential to his conclusion, his Lordship held that:
40. If I am right up to this point, it must follow that Masum Ahmed, which was concerned with past overstaying, was wrongly decided. I have already acknowledged that normally it would be sufficient to proceed on the basis that a disregard under sub-paragraph (v) could not have effect to qualify the requirement under the wholly distinct sub-paragraph (i)(a). But in my view that argument must yield to the considerations developed above, which centre on the fact that if element [C] were treated as qualifying sub-paragraph (v) it would have no purpose or effect. I obviously differ from the Court with considerable reluctance, but I note that it was not referred to the drafting history (including the Explanatory Memorandum accompanying HC 667); and, as will appear, the Secretary of State’s position before it was fundamentally different from her position before us.
The court said that the SSHD’s position that “some of the reasoning in Masum Ahmed is erroneous” was a characteristically fair concession which was correctly made. The SSHD pointed out, that conclusion does not directly assist the present appellants because, unlike in Masum Ahmed, their cases do not involve a “previous period of overstaying between periods of leave”, and element [C] of sub-paragraph (v) was accordingly of no assistance to them. Instead they were current overstayers, and like Juned Ahmed, their cases involves open-ended rather than book-ended overstaying. Element [B] addressed cases of current overstaying. The SSHD’s concession did not extend to the effect of element [B] and she submitted that it was clear that that element was intended only to qualify the requirement in sub-paragraph (v) itself, which is concerned with the requirement not to be in breach of UK immigration laws at the date of decision, and not the requirement in sub-paragraph (i) (a), which was concerned with the requirement to have accumulated ten years’ continuous lawful residence. The SSHD did not dispute that it was clumsy that different parts of sub-paragraph (v) should qualify different requirements. She however argued that that was the only possible conclusion both from the language and from the drafting history. The court accept that submission. There was thus no basis for treating the disregard in element [B] as applying to anything save sub-paragraph (v). In light thereof, Underhill LJ held that:
45. … It follows that I would regard Juned Ahmed as correctly decided, although Sweeney J’s reasoning is too broadly expressed to the extent that it is treated as applying to both disregards. Where, if I may respectfully say so, the Court went wrong in Masum Ahmed was that it treated the situations covered by the two cases – that is, open-ended and book-ended overstaying – as if they were the same. I quite agree that that is the natural starting-point, but on the arguments before us I do not think it can be the end of the analysis.
Further, turning to the appellants’ counter-arguments, the court held that the continuous lawful residence requirement in paragraph 276B(1)(a) was not qualified by the paragraph 39E disregard in element B of paragraph 276B(v). Underhill LJ also provided a postscript on the poor drafting of the Immigration Rules and added that the Court of Appeal had had to deal with appeals arising out of difficulties in understanding the rules. He said that:
59. This is partly a result of their labyrinthine structure and idiosyncratic drafting conventions but sometimes it is a simple matter of the confused language and/or structure of particular provisions. This case is a particularly egregious example. The difficulty of deciding what the effect of paragraph 276B(v) is intended to be is illustrated by the facts not only that this Court itself is not unanimous but that all three members have taken a different view from that reached by a different constitution in Masum Ahmed. Likewise, the Secretary of State initially sought to uphold Masum Ahmed – contrary, it would seem to her own Guidance – but, as we have seen, shortly before the hearing executed a volte face. (This illustrates a different vice, also far from unique, that the Home Office seems to have no reliable mechanism for reaching a considered and consistent position on what its own Rules mean.) Of course mistakes will occasionally occur in any complex piece of legislation, or quasi-legislation; but I have to say that problems of this kind occur far too often. The result of poor drafting is confusion and uncertainty both for those who are subject to the Rules and those who have to apply them, and consequently also a proliferation of appeals.
In his Lordship’s view, the SSHD had made some progress (“a valuable first step towards improving matters”) by inviting the Law Commission to report on the simplification of the Immigration Rules. He hoped that those recommendations would be actioned by the SSHD but said that “the problem goes further than matters of structure and presentation” and urged the government to give thought “to how to improve the general quality of the drafting of the Rules.”
Dingemans LJ was persuaded by Underhill LJ approach to paragraph 276B(v) and he also agreed with Underhill LJ’s postscript on the state of the Immigration Rules and stated for the record that “Poorly drafted rules lead to avoidable litigation”. Dingemans LJ held that the public interest in the maintenance of effective immigration controls, set out in section 117B(1) of of Part 5A of the Nationality, Immigration and Asylum Act 2002, outweighed the appellants’ right to respect for their private/family life within the meaning of article 8 of the ECHR.
However, in McCombe LJ’s judgment, the final Statement of Changes and its Explanatory Memorandum, leading to the current version of the Rules, did not assist the debate. Yet he entirely agreed Underhill LJ’s postscript on the state of the rules.
McCombe LJ concurred with Underhill LJ that the problem went further than structure and presentation. The trials and tribulations were such “that there may be no solution other than to discard the present Rules and to start again”. McCombe LJ added that:
96. … It may take a considerable time to achieve, but the result should enable officials, migrants (and their advisers) and the Tribunals and courts to understand what is going on and should reduce the volume of litigation. That result, it seems to me, would be well worth it.
In his cogent note of dissent, McCombe LJ accepted the appellants’ arguments in full on the construction of the rules. He held that, if it was necessary to look at the SSHD’s policy guidance, the appellants’ position was further supported by that guidance.
Comment
It is clear from the Court of Appeal’s judgment that it is fed up with the poor drafting of Immigration Rules. In Pokhriyal, a case which played an important part in the reasoning found in the present judgment, the court lamented that the rules had “achieved a degree of complexity which even the Byzantine Emperors would have envied”. In these appeals, the judges were again unimpressed with the poor drafting of the rules and were disappointed by their “labyrinthine structure” and “idiosyncratic drafting” and “confused language”.
It is a strange coincidence that on the day the Court of Appeal handed down the present judgment, the Home Office published HC 813, a 507 page long statement of changes to the Immigration Rules which seeks to establish the UK’s post-Brexit immigration system after the expiry of the transition period on 31 December 2020. The proposed rules are full of the pitfalls and problems which the Court of Appeal has warned against and it appears that the endemic litigation on the Immigration Rules which we have witnessed over the years gone by is set to continue for the foreseeable future. Nevertheless, the result that the court held that Masum Ahmed – which was concerned with past overstaying – was wrongly decided may bring some comfort to applicants for ILR whose problems arise out of book-ended or past overstaying between periods of leave.
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