Overstaying Does Not Break Lawful Residence For 10 Years Long Residence ILR

This post provides an update on the current landscape of case law addressing the continuous lawful residence requirement for 10 year long residence ILR in light of the case of Hoque & Ors v Secretary of State for the Home Department [2020] EWCA Civ 1357. Specifically, the Court considered the construction of paragraph 276B(v) regarding disregarding of current and previous overstaying. 

The Immigration Rules on Continuous Lawful Residence

The requirements for indefinite leave to remain on the basis of ten years of continuous lawful residence in the UK can be found in paragraph 276B of the Immigration Rules:

276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:

(i) (a) he has had 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.

For most applications, what is relevant is that paragraph 276A(b) defines lawful residence as residence which is continuous and pursuant to existing leave to enter or remain. In my previous post, I considered the circumstances in which section 3C could extend leave, or paragraph 39E provided an exception if an application was made out of time.    

Previous Case Law: the two cases of Ahmed

In my previous post, Long Residence ILR: Continuous Lawful Residence, I summarised the prior case law. 

In Juned Ahmed, the Upper Tribunal considered current overstaying, where you have not reached 10 years of lawful residence at the date of application, but you made an application within the grace period of your leave expiring (‘open-ended overstaying’). It was held that if you have accrued 10 years of continuous and lawful residence prior to your application, and if 39E applies to you, you can rely on 276B(v) and your application will not be refused. However, if you apply before you have accrued 10 years of continuous lawful residence, the period of overstaying while your application (including any variations) is pending, will not be added to your prior period of lawful residence to assist you in reaching 10 continuous years of lawful residence.  Sweeney J held at [75(2)] that, ‘It is obvious from the structure of paragraph 276B, read in conjunction with Paragraph 276D, that paragraph 276B(v) is a freestanding requirement additional to sub-paragraph (1)(a)’. 

In Masum Ahmed, the Court of Appeal considered previous overstaying during the 10  year period, sandwiched between two grants for leave (‘book-ended overstaying’). Although previous periods of overstaying between periods of valid leave were disregarded (where 39E applied, or prior to 24 November 2016 where the application was made within 28 days), the application of the 14-day or 28-day grace period did not convert these periods into lawful leave to remain to assist you in reaching 10 years of continuous lawful residence. Therefore, the Court of Appeal agreed at [15] with the Upper Tribunal in Juned Ahmed: ‘paragraph 276B(v) involves a freestanding and additional requirement over and above the requirements of paragraph 276B(i)(a)’.

After Masum Ahmed, the worry was that applicants would need an impeccable immigrtion  history without a single day of overstaying. This approach of the Court of Appeal conflicted with the Secretary of State’s Long Residence Guidance published for Home Office staff on 28 October 2019, which states on page 16 under the heading ‘Gaps in lawful residence’:

You may grant the application if an applicant: 

• 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 

• 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 

• meets all the other requirements for lawful residence

Recent Case Law: Hoque & Ors 

In Hoque & Ors the Court of Appeal considered the correct interpretation of paragraph 276B of the Rules. Each of the four appellants had open-ended overstaying, but had applied within the grace period following the end of their which had been extended by section 3C of the Immigration Act 1971. They then varied their application to one on the basis of long residence, and had accumulated 10 years of residence by the date of decision. 

The question was whether the provision that ‘where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded’ in paragraph 276B(v) meant that the period awaiting the decision of their application would be continuous lawful residence to enable them to meet the requirement in 276B(i)(a).

The majority, with Underhill LJ providing the construction and Dingemnas LJ agreeing, answered “no”. 

The starting point, as in Masum Ahmed and Juned Ahmed, was that ‘it is quite clear from the structure and language of paragraph 276B that the requirements identified at sub-paragraphs (i)-(v) are intended to be free-standing and self-contained’ [29]. 

The ‘first disregard’, as to current overstaying where paragraph 39E applies, only qualifies the requirement not to currently be in breach of immigration laws.  Therefore, as in Juned Ahmed you cannot rely on periods of current overstaying (even where paragraph 39E applies) to reach 10 years of continuous lawful residence. You must have 10 years of continuous lawful residence before you become an overstayer. 

The ‘second disregard’, as to ‘previous periods of overstaying between periods of leave’, was found not to belong in sub-paragraph (v), but in  sub-paragraph (i)(a). Therefore, these previous periods would not prevent you  from meeting the continuous lawful residence requirement. Although it did violence to the drafting, the majority considered it the only way to give the provision effect. 

In practice this means that you can still meet the requirements of paragraph 276B if at the date of decision you accrued 10 years of continuous lawful residence. You are permitted to currently be an overstayer if paragraph 39E applies. You are also permitted to have previous periods of overstaying if you applied within the relevant 28 or 14 day grace period and were subsequently granted leave to remain. 

Underhill LJ comes to this conclusion on the basis of the verbal linkage of this element to the sub-paragraph, and the fact that it relates to an applicant’s status at the date of decision. Previous periods of overstaying are irrelevant to an applicant’s immigration status at the date of  decision.  He supports his conclusion with reference to the drafting history of the sub-paragraph, which introduced the requirement regarding previous overstaying by amendment, and paragraph 7.49 the Explanatory Memorandum of HC 667, which stated the changes related ‘to the requirements for applicants for indefinite leave to remain to have completed a period of continuous lawful residence in the UK’.  He also looks to the Home Office’s Long residence Guidance, referred to above, and interprets the ambiguity in favour of applicants. This more generous interpretation of paragraph 276B(v) for previous periods of overstaying  was also conceded by the Secretary of State shortly before the hearing.

Accordingly, the Court of Appeal found Masum Ahmed ‘which was concerned with past overstaying, was wrongly decided’  [40]. Previous periods of book-ended overstaying will not break the continuity of lawful residence. However, it found Juned Ahmed in relation to open-ended overstaying to be ‘correctly decided’ [45]. It is noteworthy that neither Juned Ahmed (a decision of the Upper Tribunal), nor Masum Ahmed (a decision to refuse permission to appeal) was binding on the Court of Appeal in Hoque & Ors. 

Although McCombe LJ had a vastly divergent opinion of the construction of paragraph 276B, the construction of the majority in Hoque & Ors will stand until it is further refined or overturned by the Court of Appeal or Supreme Court. It is unfortunate that the poor drafting of the rules, and belated concession of the Secretary of State reversing her position in Masum Ahmed, has caused unnecessary litigation and confusion for migrants and their legal advisors. Although changes to these Rules are not incorporated in the most recent Statement of Changes laid before Parliament on 22 October 2020, I agree with Underhill and McCombe LJJ that this paragraph clearly requires revision. 

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