Case study: Long residence and gaps in lawful residence

In the case of Hoque v SSHD [2020] EWCA Civ 1357, the Court of Appeal had provided long awaited guidance in regards to whether or not short periods of overstaying can be disregarded, for applications for indefinite leave to remain on the basis of long residence pursuant to the Immigration Rules, Part 7, para 276B. This was done further to the decisions in R (Juned Ahmed) v SSHD [2019] UKUT 10 (IAC) and R (Masum Ahmed) v SSHD [2019] EWCA Civ 1070.

Para 276B(v) states (with the letter [A]–[C] inserted before each element):

‘(v) [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’

Lord Justice Underhill gave the leading judgment of the majority and found that the requirements identified at subparagraphs (i)–(v) are intended to be free-standing and self-contained. He therefore stated in, para [29]:

‘Normally it would follow that any disregard provided for in a particular sub-paragraph would only relate to that requirement, and thus that the Appellants cannot invoke the disregards in sub-paragraph (v) to remedy their inability to satisfy the requirements of sub-paragraph (i) (a).’

Underhill LJ also found in para [31] that:

‘Element [A] states the actual requirement which sub-paragraph (v) imposes, namely that the applicant must not “be in the United Kingdom in breach of immigration laws”.’

Element [B] was therefore a disregard in respect of element [A] which provides for where an applicant has had ten years’ continuous lawful residence which has expired but rule 39E applies (described as ‘open-ended’ overstaying). However element [B] does not qualify the requirement for ten years’ continuous lawful residence in sub-paragraph (i)(a).

In respect of element [C] (dealing with what is described as ‘book-ended’ periods of overstaying) Underhill LJ found, and the SSHD accepted, that it must be treated as qualifying the requirement of ten years’ continuous lawful residence in sub-paragraph (i)(a) if it is to have any effect. Underhill LJ therefore held, in para [45]:

‘that I would regard Juned Ahmed as correctly decided, although Sweeney J’s reasoning is too broadly expressed to the extent that it is treated as applying to both disregards. Where, if I may respectfully say so, the Court went wrong in Masum Ahmed was that it treated the situations covered by the two cases—that is, open-ended and book-ended overstaying – as if they were the same.’

However, the appellants were unsuccessful as they were relying on periods of open-ended overstaying to establish ten years’ lawful residence and the majority found that element [B] could not be invoked to remedy their inability to satisfy sub-paragraph (i)(a) (Lord Justice McCombe dissenting favoured the appellant’s construction). All three members of the court were critical of the drafting of the Immigration Rules and this provision in particular, paras [59], [96] and [105]. As McCombe LJ put it, para [96]:

‘The problem, as he says, goes further than structure and presentation. After many years of trying to understand and construe infelicitous drafting in various parts of these Rules and in simply trying to see how they are supposed to work in practice, I think that there may be no solution other than to discard the present Rules and to start again. It may take a considerable time to achieve, but the result should enable officials, migrants (and their advisers) and the Tribunals and courts to understand what is going on and should reduce the volume of litigation. That result, it seems to me, would be well worth it.’


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