Migrants who have spent ten years in the UK with continuous and lawful leave can apply for indefinite leave to remain (ILR).

Can leave be “continuous” if it involved short gaps between lawful periods of leave where an applicant has overstayed? This was the question addressed by the Court of Appeal in R (Ahmed) v Secretary of State for the Home Department [2019] EWCA Civ 1070.

Warning: this case is likely to annoy you. 

Continuity of residence broken by short periods of overstaying

For most people making this application, it will be the end of a long, hard slog involving stress, worry and, inevitably, inordinate expense.

And the journey may not have been straightforward: it is not uncommon for applicants to have small gaps between their periods of lawful leave where they have technically overstayed.

The claimant in this case, Mr Ahmed, relied on a ten-year period with gaps between 31 May 2008 and 2 June 2008 (i.e. 3 days between when his leave expired on 31 May, and when he made his extension application on 2 June), and also between 21 December and 29 December 2016.

But as the Home Office has a policy of disregarding very short periods of overstaying, the applications were successful and Mr Ahmed was granted further leave to remain.

However, when he came to apply for ILR under the long residence rules, Mr Ahmed’s application was refused on the basis that his ‘continuous’ leave had been broken by these gaps.

The long residence rule: ILR after ten years

Those applying for long residence must satisfy rule 276B:

276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:

(i) (a) he has had at least 10 years continuous lawful residence in the United Kingdom.

…

(v) the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. 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.

The key issue in the case was the interaction between paragraphs 276B(i)(a) and 276B(v).

Mr Ahmed’s position was that subparagraph (v) operated so to cure his previous overstaying during the ten-year residence period, making it “continuous [and] lawful” for the purposes of paragraph (i)(a).

The Secretary of State’s case was that each of the 276B requirements stood alone. Each had to be fulfilled in order to meet the requirements.

Official guidance on long residence

Before we look at the court’s conclusions, it is worth having a quick look at the Home Office long residence guidance. Remember that the purpose of this guidance is to tell caseworkers

how to consider settlement and leave to remain (LTR) applications from people applying on the basis of long residence in the UK. This guidance is based on the Immigration Rules.

When it comes to the “gaps in lawful residence” section it states

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. These are official documents which sit alongside the immigration rules
• meets all the other requirements for lawful residence

Fairly clear then: the guidance issued by the Home Office states that decision-makers can exercise discretion and grant leave notwithstanding short gaps in lawful residence.

Decision of the Court of Appeal

In legal form, this was an appeal against the Upper Tribunal’s refusal of permission to apply for judicial review. Unusually for a permission hearing, it was reported, a nod to the number of other cases before the court arguing the same point.

Lord Justices Floyd and Haddon-Cave found for the Secretary of State. They explained that the component parts of 276B were drafted as free-standing provisions; made no reference to one another; and had their own self-contained meaning:

The critical point is that the disregarding of current or previous short periods of overstaying for the purposes of sub-paragraph (v) does not convert such periods into periods of lawful LTR; still less are such periods to be “disregarded” when it comes to considering whether an applicant has fulfilled the separate requirement of establishing “10 years continuous lawful residence” under sub-paragraph (i)(a).

The court relied on a previous case, also called Ahmed ([2019] UKUT 10 (IAC)]) from earlier this year, which found the same, and referred to other parts of the Immigration Rules (relating to ILR under other routes) which contained more specific provisions specifically drafted to ‘cure’ short gaps in lawful leave. Presumably in answer to the argument that this was clearly what the Home Office had intended for ten-year 276B applications, the court held that

applying ordinary rules of statutory construction and the presumption of ideal, rational legislation, these differences in drafting should not be read as accidental or unintended.

And on the Home Office guidance, the Court of Appeal simply said that it was wrong and should be changed.

What does the decision mean for overstayers using long residence?

What’s going on here then?

We have the Home Office guidance on the one hand, and the two Ahmeds on the other: like the Two Ronnies, but much less funny.

As I read the decision, and if the Home Office were to apply it strictly, its effect is that if you spend ten years in the UK, but overstay by a single day during that period, it will reset the clock from the point you overstayed.

Home Office policy has always been that if you apply for ILR but have previously overstayed by less than 28 days pre November 2016, or by less than 14 days after that and with a good reason, such overstaying is disregarded and will not break continuity of residence.

Notwithstanding this decision by the Court of Appeal, this policy is clear from the guidance documents extracted above, and from other parts of the Rules where it has been set out (more) explicitly. In my experience, it has always been how 276B has been interpreted.

And taking a step back, this totally makes sense from a policy point of view.

Most obviously, why would you punish a long residence applicant for missing deadlines at the end of a ten-year period where you have shown leniency on multiple occasions within it? And if this were your policy, why not apply it across all types of ILR applications (e.g. 245AAA Points Based System)?

There will currently be applicants who may have missed a deadline by a day or two several years ago considering whether to spend £2,389 on making their ILR application based on long residence.  

If the Home Office has changed its view on this, then it needs to make it clear. It is not helpful to be arguing a point in the higher courts which appears to directly contradict its published (and fairly well-established, long-standing) policy.