In Asif (Paragraph 276B, disregard, previous overstaying) Pakistan [2021] UKUT 96 (IAC) the Upper Tribunal has confirmed that previously disregarded overstaying between periods of leave should be treated as lawful residence for people making 10-year long residence applications.

Background

Migrants who have spent 10 years in the UK with continuous lawful residence can apply for indefinite leave to remain on the basis of long residence via paragraph 276B of the Immigration Rules.

According to the relevant Home Office guidance, those who had overstayed for short periods of time within the 10-year residence period could have this overstaying disregarded for the purposes of their long residence application.

This policy position was thrown into doubt by the decision of the Court of Appeal in R (Ahmed) v SSHD [2019] EWCA Civ 1070, which suggested that any period of overstaying (even if it has been disregarded by the Home Office at the time) prevented the clocking up of the necessary 10 years.

The confusion was inevitably caused by the impenetrable drafting of paragraph 276B which, like a replay of a bad tackle, gets worse every time you look at it.

That issue was resolved to a greater or lesser extent in Hoque & Ors v SSHD [2020] EWCA Civ 1357, in which three Court of Appeal judges attempted to make sense of the relevant paragraph. A majority came to the conclusion that periods of overstaying between periods of lawful leave (where those periods of overstaying had been disregarded at the time) did not break the continuous lawful period required by the rules for a 10-year long residence application.

But what about where the disregarded period was particularly long, and an applicant needed to be able to rely on this time in order to cross the 10-year threshold?

The timeline

In this case, Mr Asif had been in UK lawfully for several years when he made an application to extend his leave on 3 February 2013. His application was refused. He then appealed (in time) against the refusal, before eventually withdrawing his appeal on 3 July 2014.

On 25 July 2014 (i.e. within 28 days of the withdrawal), he made a new application. Following a judicial review of a further refusal, this application was eventually granted, 507 days later, on 23 November 2015.

When Mr Asif came to make his 10-year long residence application, he relied on this 507 day period as part of his lawful residence period in the UK.

The question in the appeal was whether the decision in Hoque meant that this period where, at the time, Mr Asif had no permission to be in the UK, could be converted into lawful leave for the purposes of the long residence rules.

Hoque followed

The Home Office position was that this 507 day period could not be counted as continuous lawful residence, and that Hoque was not authority to suggest that such periods in the UK without permission could be “converted” to lawful leave.

The Upper Tribunal essentially disagreed, interpreting Lord Justice Underhill’s observations in Hoque as indicating the opposite (paragraph 39):

His Lordship was satisfied that the respondent treated the period between the expiry of an applicant’s previous leave and the grant of further leave as counting as continuous lawful residence (the reference to the respondent’s treatment must be in relation to her Long Residence Guidance). On this construction the disregard relates to the unlawful nature of a person’s residence occasioned by their being an overstayer rather than the actual length of residence as an overstayer. In making his observation Underhill LJ was clearly mindful of the Court’s view in Masum Ahmed (at [15(4)]) that disregarding such periods did not convert them into periods of lawful leave (at [12] above) as he set out the relevant extract in his own judgment, and he demonstrably considered the definitions of “lawful residence”, “in breach of immigration laws” and “overstaying” (see [11] – [13]). It is inescapable that Underhill LJ rejected the view expressed in Masum Ahmed and that he concluded that it is the unlawfulness occasioned by being an overstayer that is being disregarded rather than the chronological gap between grants of leave.

Relying again on the Home Office guidance which suggested in its examples that this indeed was the practice it would adopt, the Upper Tribunal concluded that

As the appellant’s application made on 25 July 2014 was in accordance with paragraph 276B(v)(a), the period of his overstaying is treated as lawful residence in accordance with the principles established in Hoque.

This is another sensible decision from the Court of Appeal on paragraph 276B, and welcome progress from the confusion of R (Ahmed) v SSHD [2019] EWCA Civ 1070, now almost two years ago.