Hoque & Ors v SSHD [2020] EWCA Civ 1357
This case is another instalment in the 10 years’ lawful residence saga concerning the interpretation of paragraph 276B. Lord Justice Underhill delivers a thorough judgment (with which Dingemans LJ agrees) in which he dismisses the appeals; McCombe LJ delivers a dissenting judgment.
As summarised at paragraph 20, the joined appeals concern the following ‘essential elements’:
“(1) their last period of limited leave expired before they had accumulated ten years’ continuous lawful residence;
(2) they did not make any further application prior to the expiry of that leave, so as to attract the operation of section 3C of the 1971 Act, and accordingly became overstayers at that point;
(3) they made a further application for leave within 14 days (in the case of Mr Arif and Mr Kabir) or 28 days (in the case of Mr Hoque) of the expiry of the earlier leave, which was in due course varied so as to become an application for ILR;
(4) that varied application was pending at the tenth anniversary of their arriving in the UK but was subsequently refused.
These are all therefore cases of open-ended overstaying.”
The SSHD refused the applications on the basis that the Appellants could not satisfy paragraph 276B(i)(a) i.e. ‘continuous lawful residence’. The periods in (2) above constituted a break in such continuous lawful residence, as defined in paragraph 276A.
Lord Justice Underhill stated that:
“My starting-point is that I agree with both Sweeney J in Juned Ahmed and this Court in Masum Ahmed 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.”
The Court of Appeal set out paragraph 276B(v) (introducing [A]-[C]) as follows:
“[A] the applicant must not be in the UK in breach of immigration laws, [B] except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded.” [C] 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.” [emphasis added].
Lord Justice Underhill stated that overstaying can only be ‘disregarded’ after the applicant has reached 10 years’ continuous lawful residence, e.g. where their section 3C leave expires after 10 years of continuous lawful residence, they become an overstayer, and then make an application for ILR within the 14-day grace period [33].
The difficulty lies in interpreting [C] which refers to disregarding periods of overstaying between periods of leave. Lord Justice Underhill goes on to treat this as a drafting error: “If element [C] is to have any effect it belongs in sub-paragraph [276B(i)(a)]” i.e. ‘continuous lawful residence’ [34]. Such pragmatism partially melts the freestanding nature of the requirements at 276B(i)-(v).
Underhill LJ ultimately decides that [C] in paragraph 276B(v) can qualify 276B(i)(a). This is reinforced by the Home Office’s Guidance on “Long Residence” [38]. It follows that the case of Masum Ahmed, which was concerned with past overstaying, was wrongly decided [40].
However, the Respondent argued that this did not assist the Appellants because their overstaying concerns current overstaying i.e. [B], not overstaying between periods of leave [43]. It was contended that these current periods of overstaying could only be disregarded in respect of breaches of immigration laws (276B(v)) and not continuous lawful residence (276B(i)(a)). This submission was accepted [44].
In sum, the law is now in a better position in relation to ‘book-ended overstaying’. Where an applicant’s leave expires, they become an overstayer, and then make a successful application within the 14-day period, provided there are no other difficulties, they will be eligible for ILR.
The situation is less positive for ‘open-ended overstaying’ e.g. where a person’s leave expires after eight years’ continuous lawful residence, they become an overstayer, and then make an unsuccessful application which takes them passed the 10-year anniversary. Overstaying in this manner cannot be converted into lawful residence for the purposes of 276B(i)(a). Lord Justice Underhill provides substantive reasons as to why this should be the case, distinguishing between the two forms of overstaying, at paragraph 50.
Lord Justice Underhill provides detailed analysis but one cannot help but sympathise with McCombe LJ in the minority who perhaps makes the truest comment of all: ‘I think that there may be no solution other than to discard the present Rules and to start again’.