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.
In circumstances where an in-time application is made for variation of the leave, section 3C extends leave until the application is decided or withdrawn, The SSHD argued that it did not apply, with the result that paragraph 39E also did not apply and contended, relying on the case of R (Mirza) v SSHD [2016] UKSC 63, that section 3C only applied where a valid application for leave to remain had been made, whereas Mr Afzal’s application of 6 July 2017 was invalid by reason of his failure to pay the IHS at the proper time.
Furthermore, Mr Iyieke submitted that his period of overstaying fell to be disregarded since he satisfied paragraph 276B(v)(a) because he had made a “previous application” on 2 September 2014, i.e. prior to 24 November 2016, within 28 days of the expiry of his leave on 9 August 2014.
The Supreme Court
Lord Reed (President), Lord Kitchin, Lord Sales, Lord Burrows, Lord Stephens dismissed both appeals. Overall, the court expressed disappointment at the drafting of this particular part of the Immigration Rules—Lord Sales gave the only judgment and the other Justices agreed with him.
(i) Mr Afzal’s appeal
Mr Afzal’s period of overstaying between 14 July 2017 and 5 September 2019 broke his period of 10 years continuous lawful residence as required under paragraph 276B(i)(a), meaning that he was unable satisfy the conditions for a grant of ILR, unless para 39E(2)(b)(ii) of the Immigration Rules applied.
Notably, under paragraph 39E(2)(b)(ii), the period of overstaying is “disregarded” (under para 276B(v)) where the application was made within 14 days of the expiry of any leave extended by section 3C. Two issues arose on Mr Afzal’s appeal. First of all, does section 3C apply in a case where an application for leave to remain (Mr Afzal’s application dated 6 July 2017) is said to be invalid by reason of the failure to duly pay the IHS at the proper time, so that leave is extended until the application is decided or withdrawn. Lord Sales explained that the first issue is important because:
35. … Section 3C provides that in certain circumstances leave to remain in the United Kingdom is extended for a period. For the purposes of his application for ILR, Mr Afzal had to be able to establish that he had at least 10 years continuous lawful residence in the United Kingdom (para 276B(i)(a)). The period when he was present in the United Kingdom where he had over-stayed after the expiry on 14 July 2017 of the leave granted to him in 2014 would break the period of his continuous lawful residence, meaning that he could not satisfy the conditions for a grant of ILR, unless he could rely on the second sentence of para 276B(v) by showing that his case was covered by subpara (b) on the basis that para 39E(2) applied.
Second, the appeal concerned the exact meaning of the word “disregarded” in the second sentence of paragraph 276B. Lord Sales moreover explained that:
38. The second issue is significant because, in order to be able to establish that he had 10 years continuous lawful residence in the United Kingdom so as to satisfy para 276B(i)(a), Mr Afzal needed to be able to add the period of overstaying which he says falls to be “disregarded” under the second part of para 276B(v) to his periods of lawful residence on either side of it. The Secretary of State, on the other hand, submits that the word “disregarded” in para 276B(v) means only that the period of overstaying which is to be disregarded will not be treated as breaking continuity between the periods of lawful residence between which it is book-ended, but does not positively count towards the required 10 years. On this interpretation, an applicant for ILR needs to be able to show that the period of lawful residence before the period of overstaying and the period of lawful residence after the period of overstaying add up to 10 years, in order to show that the requirement of 10 years continuous lawful residence in para 276B(i)(a) is satisfied.
Sir Patrick Elias gave the main judgment in the Court of Appeal. Peter Jackson and Males LJJ agreed with Sir Patrick who stated that the neither the SSHD nor the appellants were entirely correct in their submissions on section 3C but found that section 3C did not assist Mr Afzal. As regards the issue concerning the meaning of “disregarded”, Sir Patrick Elias accepted the SSHD’s submission that in context it means only that a period of overstaying book-ended by two periods of lawful residence does not break continuity, and so allows the two book-end periods to be added together for the purposes of computing the 10 year period required by para 276B(i)(a); it does not mean that the period of overstaying which is to be disregarded is to be counted towards that computation as well.
Lord Sales said that Mr Afzal was requested to pay the IHS charge and so was given the opportunity to pay. He held that:
58. Article 6(1)(b) stipulates that Mr Afzal had to pay the outstanding IHS charge within 10 working days beginning with the date when the request was sent in writing, that is on 18 October 2017. He failed to do so. This meant that article 6(1)(c)(ii) took effect, so that the Secretary of State was obliged to treat Mr Afzal’s application for leave as invalid (“must be treated as invalid”). She had no choice in the matter. The 2015 Order is mandatory and excludes any discretion which might otherwise have arisen under para 34B of the Immigration Rules, so it is not necessary to consider what effect (if any) para 34B might have upon the Mirzaanalysis in other cases. The fact that a reminder to pay was sent on 8 November 2017 does not affect the position.
An application might be valid for the purposes of the application of section 3C even if the SSHD had a discretion later on to treat it as invalid. By virtue of article 6(1)(b)(ii) of the 2015 Order, Mr Afzal was required to pay the IHS charge within 10 working days starting with the date when the request for payment was sent in writing. He failed to do so. That meant that article 6(1)(c)(ii) took effect, with the result that the SSHD was obliged to treat his application for leave as invalid.
If an applicant for leave failed to pay the fee (including the IHS charge) and did not seek to have that requirement waived, the application was invalid ab initio — however it could be retrospectively validated by a later payment within the 10-day grace period created by a request for payment pursuant to article 6(1)(a).
But where the application for leave was combined with an application for waiver of the fee (as in Mr Afzal’s case), then it was not invalid ab initio, rather it was “conditionally valid” unless and until the obligation to pay the fee was confirmed, following a refusal to grant the waiver asked for so that the applicant was requested to pay it, and the fee was not thereafter paid within the period of 10 working days specified. Mr Afzal was entitled to rely upon section 3C until the point where his application ceased to be valid, which was 31 October 2017. His further application dated 2 February 2018 was not made within 14 days of the expiry of the extension of his original leave under section 3C. He could not rely on paragraph 39E(2)(b)(ii) as he sought to do for the purposes of his argument based on paragraph 276B(v).
As to paragraph 276B(v) and the issue whether “disregarded” periods of overstaying can count towards the 10 year continuous lawful residence requirement, the answer was “No” because the word “disregarded” meant only that a book-ended 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, but without the period of overstaying being counted as an addition for the purposes of that calculation. This was the result of the decision in Hoque v SSHD [2020] EWCA Civ 1357, see here, where the court analysed para 276B(v) with care and pointed out that it has two parts which operate in different ways.
The first limb states a distinct requirement to be satisfied by an applicant for ILR on the grounds of long residence in the UK alongside those specified in subparas (i)-(iv). The second limb (“Any previous period [etc]”) does not state a requirement of that character, but instead qualifies the requirement of 10 years continuous lawful residence in subpara (i)(a). Moreover, the first limb deals with a situation where there is an open-ended period of overstaying because no subsequent leave is granted. And the second limb deals with a situation where there is a book-ended period of overstaying, which occurs between two periods of leave. The parties agreed with this analysis of the provision and Lord Sales held that:
71. Mr Jafferji relies on the word “disregarded” in the second limb of para 276B(v). But this is not a positive statement that a period without leave to remain should count as if it were a period with leave to remain. As Sir Patrick Elias points out (para 56), the natural meaning of a period being “disregarded” is simply that “one should not have regard to it; it should be ignored”. As he also emphasised, what has to be “disregarded” in both limbs of para 276B(v) is not the fact of overstaying (so as to treat it as if it were not overstaying at all), but the period of overstaying.
72. Therefore, far from indicating with clarity that a period of overstaying is to qualify (contrary to the fact) as a period of residence with leave, the structure of this part of the Immigration Rules and the language in which para 276B(v) is expressed indicates that a period of overstaying does not so qualify. Mr Jafferji’s submission does not give proper value to the word “disregarded”. His contention comes to this: the period of overstaying should not be disregarded (ignored) when calculating whether there has been 10 years continuous lawful residence under para 276B(i)(a), but positively brought into account as though it was itself a period of lawful residence. It clearly is not that and the relevant rules do not describe it as such.
73. Reading the word “disregarded” according to its natural meaning, the sense of both limbs of para 276B(v) is clear. In each limb, the paragraph provides that in the circumstances specified a period of overstaying without leave shall not prevent an applicant from relying on an overall 10 year period when he or she was present with leave. The period of overstaying is indeed “disregarded”, that is ignored, in such a case. The word carries no other meaning.
74. So far as the first limb of para 276B(v) is concerned, this reading has the effect that although the general requirement stated there is that the applicant must not be in the UK in breach of immigration laws (that is, without leave) when they make their application for ILR on the ground of long residence, that requirement is relaxed (“any current period of overstaying will be disregarded”) if para 39E applies at that time. The first limb of para 276B(v) does not convert a period of overstaying into a period of presence with leave.
The above was supported by the decision in Secretary of State for the Home Department v Waqar Ali [2021] EWCA Civ 1357. Although Underhill LJ had concluded that the word “disregarded” in the second limb of paragraph 276B(v) entails a different meaning than in the first limb, with the result that in his view the period of overstaying referred to in the second limb does in fact count towards the required 10 year period of continuous lawful residence under paragraph 276B(i)(a), this was not part of the ratio of the court’s decision. In the present case, Sir Patrick Elias explained convincingly why this view is not correct. In the round, Lord Sales held that:
79. … There is no warrant for giving the word “disregarded” anything other than its natural meaning in both limbs of para 276B(v). There is no warrant for reading the second limb as though it were a provision which deemed a period of overstaying to be a period of lawful residence, as a departure from the definition of “lawful residence” in para 276A.
Lord Sales thus affirmed the Court of Appeal’s decision on the application of section 3C and the meaning of “disregarded” in paragraph 276B(v) and dismissed Mr Afzal’s appeal.
(ii) Mr Iyieke’s appeal
The court stated that there was a gap of 111 days between the expiry of the first period of leave (9 August 2014) and the date of the commencement of Mr Iyieke’s second period of leave to remain.
The commencement date of this second period was backdated to 28 November 2014 for the purposes of counting continuous lawful residence following Mr Iyieke’s successful appeal in the Upper Tribunal in respect of his application made on 26 February 2015 on family and private life grounds. If the resulting gap period falls to be disregarded under para 276B(v)(a), Mr Iyieke can establish that he has the necessary period of continuous lawful residence for a grant of ILR. Furthermore, for the gap period to be disregarded, his (unsuccessful) application of 2 September 2014 for leave to remain must qualify as “the previous application” referred to in para 276B(v)(a). The court decided that it does not so qualify. Lord Sales said that the wording of the rule is infelicitous, but Dingemans LJ was right to focus on the use of the definite article. The said rule does not refer to any previous application which a person might have happened to have made—even if unsuccessful— which falls within the period of overstaying which is to be disregarded according to the rule. In Lord Sales’s view, “the previous application” referred to is the application which resulted in the second leave being granted.
The use of the definite article shows that one particular application is being referred to, and the only application which could rationally be said to be significant in the context of the second limb of paragraph 276B(v) is the application which resulted in the grant of the second period of leave which book-ends the period of overstaying referred to in that limb. Overall, Lord Sales’s conclusion was as follows:
88. Further, the interpretation of the rule urged by Mr Jafferji would have perverse effects which it cannot reasonably be thought the drafter intended. It would mean that a person who made a hopeless application for leave within 28 days of the expiry of leave, which is refused, who happens to make a later application for leave (perhaps very much later) which is successful (on a completely different basis) would be in a better position than someone who made a successful application which was just out of time. Moreover, if the application for further leave was made in time within the 28 day period, section 3C would extend the original period of leave until the determination of the application, and any appeal or administrative review of a refusal, but unless the application was ultimately successful the clock would then re-set. But if Mr Jafferji’s proposed construction is correct, it would mean that it would be more advantageous to make an application out of time.
His Lordship found that it cannot be supposed that the drafter of the rule intended that the making of out of time applications should be incentivised in this way for being untimely, nor that the rule should produce such unfair results as between different applicants.
Comment
Lord Sales was at pains to explain in his final comments that in cases dealing with these rules, the judiciary has repeatedly commented on their poor drafting. He opined that poor drafting needlessly creates difficulties and uncertainties which lead to costly litigation and concluded that “it is highly desirable that the project to redraft the Immigration Rules to make them clearer should be carried forward to completion.” Nevertheless, this judgment is a reminder that the rules cannot be interpreted to produce perverse effects by allowing a person who made a hopeless application and then made a later application for leave which was successful—on a completely different basis—to be put in a in a better position than someone who made a successful application which was just out of time. Lord Sales was equally clear that it cannot be more advantageous to make an application out of time than an in-time application.
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