Masquerading as a somewhat niche decision about non-payment of the Immigration Health Surcharge, R (Afzal) v Secretary of State for the Home Department [2021] EWCA Civ 1909 is a beast of a case that:

• Extends the Mirza exception to retrospective invalidity beyond biometrics
• Confirms that in most cases, invalidity (and by extension validity) occurs automatically by operation of law, regardless of whether the Home Office issues a notice of invalidity
• Finds that paragraph 39E applies not just to application refusals but also notices of invalidity, regardless of whether section 3C leave is in play
• Finds that whilst “book-ended” overstaying does not break continuous residence, neither can that period be counted towards the five or ten year qualifying period

I’ll explain all that below, meaning that this article is necessarily longer than usual. [You’re not even sorry — Ed.]

Background: dispute over continuity of lawful residence

Mr Afzal, a Pakistani citizen, came to the UK in February 2010 as a student. He extended his permission to stay until 14 July 2017, each time applying before the expiry of his permission. On 6 July 2017, he lodged another extension application, accompanied by a fee waiver request. (The exact dates are important, as will become clear.)

By letter dated 28 October 2017, the Home Office refused the fee waiver request and informed him that he now had ten working days to pay the application fee and the Immigration Health Surcharge (IHS).

Mr Afzal paid the application fee before the deadline but, for reasons that are unclear, failed to pay the IHS. The Home Office sent him another letter on 8 November 2017, which Mr Afzal says he didn’t receive, reminding him about the IHS and giving him until 22 November to pay up.

He didn’t. On 22 January 2018, the Home Office informed Mr Afzal that his extension application was invalid because of a failure to pay the IHS. There was no challenge to this decision.

On 2 February 2018, Mr Afzal made a further application for permission to stay. This time it was successful: the grant of permission kicked in from 5 September 2019 and ran until 4 March 2022.

In February last year, Mr Afzal lodged an application for indefinite leave to remain on the basis of ten years’ continuous lawful residence. The Home Office refused the application on the basis that he had a gap in lawful residence between 14 July 2017 and 5 September 2019.

Mr Afzal challenged the decision by way of judicial review. He made some headway in the Upper Tribunal, which held that he was lawfully resident up until 22 January 2018 and the notice of invalidity. But it found that his continuity of lawful residence was broken for the rest of the period up to 5 September 2019.

Mirza and the consequences of invalidity

Before we get into what the Court of Appeal decided, a pit stop on what it means for an application to be declared invalid.

Since the 2016 Supreme Court decision in Mirza [2016] UKSC 63, there have been two categories of validity rules in terms of the consequences of failing to meet them:

1. Failure to enrol biometrics, which leads to the application being invalidated upon being served the notice of invalidity, with no retrospective effect
2. Everything else, where failure to meet the validity requirement renders the application invalid from the very beginning (or, if you prefer Latin, the invalidity in these cases is ab initio)

The logic behind the distinction is that the deadline for submitting biometrics (i.e. fingerprints and photograph) comes some time after an application is submitted online, whereas the rest of the validity requirements are able to be satisfied from the outset. The court in Mirza found that it would be unfair to invalidate an otherwise-valid application from the very beginning in those circumstances. This exception for biometrics means that the person concerned will have section 3C leave, and so continue to be lawfully resident in the UK, until the Home Office serves notice of invalidity.

Does the Mirza exception apply to other validity rules?

Now we can look at the Afzal judgment. Sir Patrick Elias, giving the unanimous decision, found that Mr Afzal’s circumstances were much more similar to a failure to enrol biometrics than to other validity requirements:

In my judgment the position is different where the application to vary leave is combined with an application to be relieved of the payment of fees altogether. I do not think it can sensibly be said that the application for leave, when coupled with such a request, is invalid ab initio and only becomes validated if the relief is granted or when the fees are paid. In my view the application is conditionally valid, i.e. it is valid unless and until an obligation to pay the fee is imposed, following a refusal to grant relief, and the fee is not thereafter paid within the specified period of ten working days.

So this application did trigger section 3C leave, although that leave lapsed on 22 November 2017 (the extended IHS payment deadline). At that point, invalidity kicks in automatically. That is because of article 6 of the Immigration (Health Charge) Order 2015, which says that when the IHS isn’t paid after a reminder has been sent, the application “must” be treated as invalid. In that sense, the fee waiver scenario is different from the missed biometrics scenario, but they have in common the fact that in neither case is the application treated as having been invalid all along.

To my knowledge, this is the first time that a court has applied the Mirza rationale to a validity requirement other than biometrics. There is no reason in theory why it should be limited to that. Given that evidence of identity and any relevant mandatory documents are now usually provided at the point that the applicant enrols their biometrics or just prior to it, these requirements could also fall within the Mirza exception, though this was not an issue in this case.

Can the Home Office make an application valid or invalid?

The court also confirmed that in most cases, invalidity is automatic, in the sense that an invalid application is usually invalid by operation of law — regardless of whether the Home Office confirms it to be so by issuing a notice of invalidity:

… the fact that the application was a nullity means that there was no decision as such varying leave to remain or otherwise: the invalidity occurs independently of any decision by operation of law. The Secretary of State does not determine that the application is invalid; she has no discretion. That consequence flows from the application of the rules. The notification that the application is invalid is just that: a notice informing the applicant that no valid application has been made and that there is nothing for the Secretary of State to consider.

It follows, I think, that in most cases, a valid application remains valid even if the Home Office purports to invalidate it. This may seem like a niche point but it has important implications in a number of different circumstances.

Is there a paragraph 39E grace period after a notice of invalidity?

Paragraph 39E is the grace period rule. It allows overstaying to be disregarded where an immigration application is lodged within 14 days of, among other things, the refusal of a previous application.

Mr Afzal wanted to rely on this grace period to establish ten years’ continuous lawful residence. It was not, on the face of it, a promising pitch: he needed to bridge the gap between 22 November 2017 and 2 February 2018, which is much more than 14 days. His argument was that his application was only “refused” when he was issued the notice of invalidity on 22 January 2018. Since he lodged a new successful application within 14 days of that date, his overstaying fell to be disregarded.

Somewhat surprisingly, the court endorsed this analysis:

In my judgment, therefore, although the language in para.39E is potentially ambiguous, any ambiguity utterly dissolves in the light of the obvious purpose of the paragraph and the statements of policy relating to it. I have no doubt that construing the word “application” so as to include invalid applications, and interpreting the concept of “refusal” as including the rejection of an invalid application, reflects the intention of the Secretary of State in adopting the paragraph.

Accordingly, in my view the period of 14 days for the purposes of para.39E ran from the date when the appellant was notified that his application had been rejected as invalid… That was on 22 January 2018.

It’s difficult to overstate the significance of this decision. This interpretation cuts out section 3C leave altogether so it would appear to apply not just to valid applications that are later invalidated but also to applications that are invalid from the start. We have previously written about the harsh consequences that stem from an invalid application here, including the unfortunately common situation where an applicant only discovers that what they thought was a valid in-time application was actually invalid when they are already an overstayer and it’s too late to do anything about it.

Following this decision, that person would still be an overstayer but they would now have 14 days from the notice of invalidity to lodge a new, valid application. They would be protected from the consequences of that overstaying by paragraph 39E as if they had instead made a valid application that was refused.

It remains to be seen whether the Home Office, which has never interpreted paragraph 39E this way, appeals this finding — perhaps in a later case, if the significance is not immediately clear.

It’s not, however, all good news.

Can “book-ended” overstaying count towards the continuous residence period?

Following a number of contradictory decisions, the Court of Appeal in Hoque v Secretary of State for the Home Department [2020] EWCA Civ 1357 ruled that where someone was relying on paragraph 39E , the relevant period of overstaying can be disregarded for the purposes of a ten-year long residence application.

In making this finding, the court distinguished between “book-ended” and “open-ended” overstaying. Book-ended, or interjacent, overstaying is where the person makes a new application within 14 days of their section 3C leave expiring, which is subsequently granted. Open-ended overstaying is where the person makes a new application within 14 days of section 3C leave expiring but it is not granted by the time the settlement application is made.

With “book-ended” overstaying, the court in Hoque suggested that the subsequent grant of the application in effect papers over the overstaying, making it lawful residence for the purpose of accruing ten years of continuous residence. “Open-ended” overstaying, on the other hand, will break continuous residence.

Mr Afzal wanted to rely on his “book-ended” overstaying as counting towards the ten years. The Court of Appeal held that although this type of overstaying does not break continuity of residence, neither does it positively count towards the ten years. The opposite finding in Hoque was obiter, meaning that it did not form part of the binding decision, and so did not set a precedent.

Essentially, the analysis came down to the meaning of the word “disregarded”. The court concluded that it means neither harming nor helping the applicant’s case. In making this decision the judges drew upon paragraph CR 4.3 of Appendix Continuous Residence which states that, while overstaying covered by paragraph 39E will not break continuity of residence, nor will it “count when calculating the continuous residence period”.

This means that although “book-ended” overstaying will not break continuity of leave (so the clock on the five- or ten-year period does not restart from the beginning), neither can it be counted towards the qualifying period.

This decision represents a significant departure from the way the Home Office has historically approached long residence settlement applications, which usually entailed counting these protected periods of overstaying towards the ten-year qualifying period.

It also has wide-reaching implications for any categories not covered by Appendix Continuous Residence. It appears that any application made on the basis of completing a particular qualifying period will involve discounting any periods the applicant was without permission, even if those periods are protected by paragraph 39E.

Mr Afzal is seeking permission to appeal.