How broadly does the decision in R (Afzal) v Secretary of State for the Home Department [2021] EWCA Civ 1909 protect applicants from the catastrophic consequences of becoming an overstayer after making an invalid application to extend immigration permission?

As a reminder, the Court of Appeal in Afzal held that the paragraph 39E protection against overstaying covers invalid applications (paragraph 50):

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.

The upshot, in Mr Afzal’s case, was that he was able to have his overstaying disregarded under paragraph 39E, relying on the notice of invalidity acting as a “refusal” of his invalid application.

What does paragraph 39E do, anyway? 

Paragraph 39E of the Immigration Rules is entitled “Exceptions for overstayers”. It provides a 14-day grace period during which someone whose permission to be in the UK has expired will not be treated as an overstayer. The circumstances in which this grace period can be invoked are (my emphasis):

39E. This paragraph applies where: 

(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or

(2) the application was made: 

(a) following the refusal of a previous application for leave which was made in-time; and

(b) within 14 days of: 

(i) the refusal of the previous application for leave; or

(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or

(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or

(iv) any administrative review or appeal being concluded, withdrawn, abandoned or lapsing;

The way paragraph 39E has traditionally been applied is that where someone makes a valid application that is then refused, they have 14 days to lodge a new application from the expiry of their section 3C leave. If they did that, their overstaying fell to be disregarded.

It was never entirely clear what paragraph 39E(2)(b)(i) – highlighted above – did that was separate from the section 3C leave provision in (ii). Perhaps we now have an answer.

Following Afzal, the paragraph 39E grace period protection now extends to invalid applications, with the notice of invalidity marking the date the application is “refused”.

This, to me, raises the question: what is the bare minimum required for an invalid application to be capable of falling within the protection of paragraph 39E? In other words, what makes it an “application” in the first place, even if an invalid one?

Invalid applications and the grace period

Previously, there was no reason to examine what separates an invalid application from something that is not even an application at all. Aside from cases where the cause of the invalidity was a failure to enrol biometrics, they amounted to the same thing in the end: an invalid application was treated as though an application had never been made.

Now, we have two types of invalid applications: invalid applications falling within the protection of paragraph 39E and “non-applications”, to coin a phrase, which don’t. The existence of the latter is assumed rather than explicit but that’s no reason to doubt it: you cannot send a tennis ball to the Home Office and call it an application. 

So there must be a line that separates the two. The question is, where?

Since validity is now no longer a prerequisite to benefiting from paragraph 39E, perhaps the best analogy is with citizenship applications, which do not have any validity requirements. At my firm, we are fond of saying that a naturalisation application can be made on a postcard (although, for obvious logistical reasons, it’s better to apply using the designated application form).

Is the same now true of applications that attract the protection of paragraph 39E? The Home Office seems unlikely to see it that way, although it’s not clear legally why that wouldn’t be the case.

Looking at the generic validity requirements in paragraph 34, it’s not obvious which ones would need to be stripped away from an application for it to be not just invalid but not an application at all.

Clearly, a failure to pay the application fee does not preclude paragraph 39E protection, as this is exactly what happened in Afzal. It’s not a stretch to add that a failure to enrol biometrics or provide evidence of identity would fall in the same camp. Similarly, an application made on the wrong form would generate a notice of invalidity, which the court in Afzal found to count as a “refusal” for the purposes of paragraph 39E.

So can all of the validity rules be disregarded for these purposes? Possibly. You would still need to ask the Home Office in writing for permission to stay. But provided you have, an application rejected for invalidity should — in principle — trigger the 14 day grace period.

So what are the potential implications?

This is all educated conjecture, but one possible use case is where people on spouse visas mistakenly apply for citizenship instead of indefinite leave to remain. This is not uncommon.

People who have done that could now take advantage of the Afzal decision to argue (putting it no higher) that lodging a settlement application within 14 days of the refusal of their naturalisation application brings them within the remit of paragraph 39E.

Similarly, applicants sometimes apply for a replacement biometric residence permit instead of an extension of their immigration permission. Could they equally take advantage of this decision to argue that it was an invalid application for further leave and that they are entitled to have their overstaying disregarded, provided they lodge a new extension application within 14 days of the refusal?

The benefit of this is not just that their overstaying would be disregarded but also that, again in accordance with Afzal, their continuity of leave would not be broken. Although they cannot count the overstaying period towards the five (or ten) year qualifying period for settlement, it doesn’t start it from scratch either.

I would argue that any application made to the Home Office, even if it is not strictly speaking an immigration application, which results in some kind of decision – whether a refusal or invalidity rejection – should trigger the benefit of paragraph 39E, where the other conditions are met. 

At the very least, if I had a client in this position who has been refused on the basis of overstaying, or took them out of the five-year route to settlement, I would certainly consider challenging the refusal on this basis.