- BY John Vassiliou
Any overstaying technically breaks long residence, Court of Session agrees
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The controversial English Court of Appeal long residence case of Ahmed has now been endorsed north of the border by the Court of Session in Mbomson v Secretary of State for the Home Department [2019] CSOH 81. Lord Malcolm’s decision is short: although not bound by the Court of Appeal’s decision, his lordship is nevertheless persuaded by it and accordingly endorses it.
What was the decision in Ahmed and now Mbomson? The courts have, correctly in my view, interpreted the sloppily drafted Immigration Rules on long residence to hold that any period of overstaying, no matter how small, will break “continuous lawful residence” for the purposes of a 10-year long residence application. Residence is broken, in this context, regardless of whether or not it was absolved by the granting of a subsequent application.
Now, as all seasoned immigration lawyers will tell you, this flies firmly in the face of long-established policy. But is it as problematic a decision as it seems?
To me, and this is just my own take on it, the situation is simple. The rules do not permit a grant of leave on long residence grounds where there has been a break in continuous lawful residence through overstaying, but the guidance clearly allows caseworkers to exercise discretion in disregarding certain periods of overstaying. See page 16:
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
It is clear from the above that applications where there is past overstaying can be granted, and that the Home Office is not concerned about the kinds of overstaying listed.
The next section of the document says:
Any decision to exercise discretion and not refuse the application on these grounds must be authorised by a senior caseworker at senior executive officer (SEO) grade or above.
When granting leave in these circumstances, the applicant must be granted leave outside the rules for the same duration and conditions that would have applied had they been granted leave under the rules.
My reading of the above is that any period of overstaying should indeed normally lead to a refusal, as per the Rules and the interpretation of both the English and Scottish courts, but that such applications can (and should if eligible) nevertheless be granted outside of the Immigration Rules rather than under paragraph 276B.
While I’m very much open to being told this interpretation is wrong, it seems to be the only logical way of reconciling the otherwise harsh Immigration Rules on the one hand and the relatively generous policy on the other.
If one thing is clear, it’s that the Home Office needs to get its collective finger out and set the record straight.
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[4] The submission for the respondent is that any gaps in lawful residence arising from applications being made by an overstayer must be taken into account when deciding whether the 10 years continuous lawful residence requirement is met. The disregard expressed in paragraph 276B(v) applies only in respect of the requirement that the applicant must not be in breach of immigration laws. It has no relevance to the separate requirement set out in 276B(i)(a).
276B
Where:
Interpretation
276A
I believe that 276B(i)(a) and 276B(v) are linked via 276A(b)(i) and the various definitions of “overstay” and “in breach of Immigration Laws”, etc.
The exception in 276B(v) contains a definition of when the current and past periods of overstay will be disregarded. If a period overstay breaks lawful residence under 276A(b)(i), then disregarding this period of overstay may also preserve lawful residence with respect to the overstay for the purposes of 276A(b)(i) and 276B(v)?
If a period of overstay is disregarded for the purposes of lawful residence in 276B(v), but not in 276B(i), then 276B(v) is inconsistent with 276B(i). Else, if the exception in 276B(v) does not preserve lawful residence in 276A(b)(i), then 276B(v) becomes redundant in the face of 276B(i) and apparently serves no purpose other than to delude an applicant to make an application that is doomed to fail.
In my view, to have contradictory regards of the same periods of overstay in different parts of 276B is not logically sound.
See also An analysis of the judgment in R (on the application of Masum Ahmed) v SSHD [2019] EWCA Civ 1070.