Overstaying and 10 Years Long Residence ILR
In order to qualify for indefinite leave to remain (ILR) in the UK on the ground of long residence, applicants need to satisfy UK Visas and Immigration that they have spent a period of at least 10 years residing in the UK continuously and lawfully. In two recent cases, the Upper Tribunal and Court of Appeal have looked at overstaying and 10 years long residence ILR, with a particular focus on overstaying between periods of leave and eligibility for 10 years long residence ILR.
Requirement for Indefinite Leave to Remain on the basis of 10 years Long Residence
To apply for Indefinite Leave to Remain on the grounds of long residence, you must meet the requirements of paragraph 276B of the Immigration Rules.
This is one of few ILR applications which gives applicants flexibility to combine periods of leave in different categories, and is often relied upon by students, who do not have a direct route to settlement in Tier 4.
The long residence rule requires, among other things:
(i) (a) … at least 10 years continuous lawful residence in the United Kingdom.
(v) the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. Any previous period of overstaying between periods of leave will 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 of these Rules applied.
Where applicants have short breaks in leave of less than 14 or 28 days, since or before 24 November 2016, they can still extend their leave and may reach a ten year period of residence in the UK. The question is whether any breaks in residence at all is fatal to the requirement of ‘continuous lawful residence’ in accordance with 276B(i)(a).
How these provisions are interpreted by the Home Office and courts is obviously vital to how applications are to be prepared and their merits. Home Office Guidance is unchanged since April 2017 and overstaying in accordance with 276B(v) is treated as not breaking continuous lawful residence.
Case-law Developments in relation to Overstaying and 10 Years Long Residence ILR
Two recent cases have potentially grave results for applicants applying for long residence ILR with gaps in their continuous leave. The first of is the Upper Tribunal decision in R (on the application of Ahmed) v Secretary of State for the Home Department (para 276B – ten years lawful residence)  UKUT 00010 (IAC), (“Juned Ahmed”). This case concerning overstaying and 10 years long residence ILR featured earlier in 2019 in our blog, here.
The more recent case concerning overstaying and 10 years long residence ILR is the Court of Appeal decision in (a separate appeal, but with an appellant also by the name Ahmed), R (Ahmed) v Secretary of State for the Home Department  EWCA Civ 1070 (“Masum Ahmed”).
Background facts of the Court of Appeal case of Ahmed – Overstaying and 10 years Long Residence ILR
In this case, the Applicant lived in the UK from 2002. He made an out of time application in 2007, which was rejected as invalid, he re-submitted and then leave to remain was granted on 17 September 2007, valid until 31 May 2008. On 2 June 2008 – two days out of time – the Applicant applied for leave to remain, which was granted. He extended his leave until 30 March 2013. He made a long residence ILR application in January 2013 which was refused, appealed, re-refused in July 2015. The Applicant appealed, and became appeal rights exhausted. 8 days later, he applied for leave out of time. This was varied to an FLR(HRO) application and then varied to a long residence ILR application. This application was refused and certified. The Court of Appeal decision concerned an application for permission to appeal against the refusal and certification of a judicial review permission decision.
Judgment in Ahmed
Lord Justices Floyd and Haddon-Cave agreed with the approach and reasoning in the earlier Juned Ahmed decision (§16) and found for the Secretary of State.
They determined that the requirements of paragraph 276B are freestanding provisions, and that “sub-paragraph (v) is not drafted as an exception to sub-paragraph (i)(a) and makes no reference to it.”
Further, they determined that:
… the disregarding of current or previous short periods of overstaying for the purposes of sub-paragraph (v) does not convert such periods into periods of lawful LTR; still less are such periods to be “disregarded” when it comes to considering whether an applicant has fulfilled the separate requirement of establishing “10 years continuous lawful residence” under sub-paragraph (i)(a).
The Court of Appeal also applied ordinary rules of statutory construction, meaning applying “the presumption of ideal, rational legislation” so that “these differences in drafting should not be read as accidental or unintended”
Comment on overstaying and 10 years long residence ILR
In finding that “continuous residence” and “lawful residence” are meaningful distinctions, the Court of Appeal recognised the definitions in paragraph 276A. Paragraph 276A(a) focuses on absences breaking continuity of residence and having leave to enter upon exit and entry. Paragraph 276A(b) defines lawful residence in relation to having leave to remain, temporary admission, or being exempt from immigration control. However, in paragraph 276B(i)(a) the two terms are merged in an undefined way, which the Court of Appeal found to be straightforward to interpret.
The interpretation, however, is not in line with how the long residence ILR application has been approached. The Masum Ahmed decision means that applicants with (formerly considered very) positive immigration histories may find it difficult to settle in the UK, due to no fault of their own.
For instance, an applicant considering making an application now who has lived in the UK since June 2009 and extended their leave in in-country applications each time, may have had one or more applications rejected as invalid due to a Home Office failure to take payment. The old paper forms and postal application system with its inevitable delays in taking payment meant that knowing whether payment was taken or not was simply not an option for applicants. So long as the application following any rejection was submitted promptly (within 14/28 days depending on when the application was made), this would not lead to the next application being refused. However, if the Court of Appel is correct that this is only relevant to paragraph 276B(v), then the Applicant will not meet the requirements of 276B(i)(a), and will fall for refusal because of a short period of historic overstay.
That a payment issue can ruin an otherwise excellent immigration history seems wrong and there seems no good reason behind it. The approach that even a day’s gap in a ten year period is fatal to an application for indefinite leave does not appear proportionate.
The Immigration Rules are not known for clarity of drafting, and it may be that they ought to be amended to avoid a situation in which the Home Office grants applications relying on its policy in published guidance but where an appeal on the same facts would be bound to lose in court. A more realistic and worrying proposition may be that the guidance is hardened in line with the Court’s approach and advice at §15(8): “The SSHD may wish to look again at the Guidance to ensure that it does not go any further than a statement of policy”.
Contact our Immigration Barristers
For expert advice and assistance regarding an application for indefinite leave to remain on grounds of long residence, or advice on overstaying and 10 years long residence ILR, contact our immigration barristers & immigration lawyers in London on 0203 617 9173 or via our online enquiry form.