Long residence: disregarded current overstaying does not count
In the case of R (on the application of Ahmed) v Secretary of State for the Home Department (para 276B – ten years lawful residence)  UKUT 00010 (IAC), the Applicant had arrived in the United Kingdom on 11 October 2006 with valid entry clearance.
Following a series of successful applications for further leave to remain in the UK, the Applicant’s leave expired on 22 January 2016: the date the refusal of his Administrative Review application was deemed served on him.
The Applicant made an application for further leave to remain 13 days later, on 4 February 2016. This application was varied several times: the last two variations were made on 22 September 2016 and 7 November 2016 and involved an application for indefinite leave to remain outside the Immigration Rules and an application for indefinite leave to remain on the grounds of 10 years’ residence in the UK, respectively.
The original application was refused, but following the issue of judicial review proceedings, the parties agreed that the indefinite leave to remain application would be considered as a variation of those that preceded it.
On 13 March 2017, the Secretary of State refused the long residence application for indefinite leave to remain and certified the human rights claim as clearly unfounded under s. 94 of the Nationality, Immigration and Asylum Act 2002. The refusal letter concluded as follows:
“You subsequently applied for further leave to remain on 04 February 2016 13 days out of time for Family / Private Life leave to remain which you then varied to another Family / Private Life leave application, then varying to Outside the Rules indefinite leave to remain then finally varying to indefinite leave to remain based on 10 years lawful residency.
As this has not been followed by a grant of leave to remain your continuous lawful residence was broken on 22 January 2016. Therefore, you have only completed 9 years 3 months continuous lawful residence in the United Kingdom.
With this in mind, you have not demonstrated ten years continuous lawful residence and cannot satisfy the requirement of Paragraph 276B(i)(a).”
Application for judicial review
A judicial review application was issued challenging the certification decision, mainly on the basis that the Secretary of State was mistaken in law for failing to count the period between the date of the original application of 4 February 2016 and the date of the decision of 13 March 2017 when considering whether the Applicant had at least 10 years’ continuous lawful residence.
The ground was based on paragraph 276B(v), which, as it then stood, read as follows:
the applicant must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded, as will any period of overstaying between periods of entry clearance, leave to enter or leave to remain of up to 28 days and any period of overstaying pending the determination of an application made within that 28 day period.
The Applicant pleaded that, given he had made the application of 4 February 2016 within 28 days of his leave expiring on 22 January 2016, his period of overstaying whilst awaiting a decision (until 13 March 2017) should be added to the period of continuous lawful residence.
Upper Tribunal Judge Kopieczek granted permission at an oral renewal hearing, finding that the above ground was at least arguable. Permission was granted on the remaining grounds, although it was considered that their merit was connected with the main argument in terms of long residence.
Following a substantive judicial review hearing, Sweeney J refused the application for judicial review. In his judgment, he held that the requirement of paragraph 276B(v) is freestanding and additional to that of paragraph 276B(i)(a).
Effectively, if an applicant has not completed 10 years’ continuous lawful residence for the purposes of paragraph 276B(i)(a) read in conjunction with 276A(b), they cannot rely on paragraph 276B(v) to argue that any current period of overstaying should be disregarded and treated as lawful residence.
It is noteworthy that 276B(v) as it formerly and currently stands involves two parts. First, the applicant must not currently be in breach of immigration laws (except where current periods of overstaying are to be disregarded). Second, it states which previous periods of overstaying between periods of leave will be disregarded.
Sweeney J’s judgment deals with the construction of the former but not the latter. He does not consider the position of an applicant who has a period of overstaying between two periods of leave.
In my view, it remains unclear how the reasoning of the judgment, namely that paragraph 276B(v) is freestanding and additional to 276B(1)(a), is reconciled with the fact that the second half of the same paragraph is not freestanding. It can only be read in conjunction with paragraphs 276B(i)(a) and 276A(b). That is because a “previous” period of overstaying has no relevance to whether an applicant is currently in the UK in breach of immigration laws and therefore whether he meets the requirement of the first half of paragraph 276B(v). It can only be relevant to whether the qualifying period of at least 10 years’ continuous lawful residence in the UK has been accrued.
Therefore, as the requirement of paragraph 276B(i)(a) can be met in conjunction with the second half of paragraph 276B(v), insofar as certain historic periods of overstaying followed by a grant of leave are disregarded and added to the qualifying period, it is questionable why the first half, relating to a current period of overstaying not followed by a grant of leave, should be treated differently.
Whilst paragraph 276B(v) has now been amended to include a reference to paragraph 39E, shortening the permissible period of overstaying to 14 days, there appears to be no reason why the Upper Tribunal’s ruling, unless successfully challenged, should be distinguished.
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