A ticked off Court of Appeal has refused another long residence appeal based on gaps in lawful residence, in a judgment full of digs at the Home Office in Iyieke v Secretary of State for the Home Department [2022] EWCA Civ 1147. The court made no bones about the fact that the long line of cases relating to paragraph 276B of the Immigration Rules were a result of “poorly drafted rules” leading to “avoidable litigation”.

The judgment is mercifully short. Mr Iyieke entered the UK in February 2011. His leave expired on 9 August 2014 and he made an application for further leave within 24 days. Mr Iyieke’s new application was unsuccessful and he remained without a visa. Mr Iyieke appealed and in November 2014, he was granted a period of temporary admission. Mr Iyieke made a subsequent application in February 2015 and after a trip to the Upper Tribunal, he was granted leave to remain from August 2017 which was still extant at the time of the hearing.

An application was made by Mr Iyieke for indefinite leave to remain on the basis of 10 years continuous and lawful residence between February 2011 and February 2021 (spot the problem?). It was the refusal of the long residence application which was challenged by judicial review.

Aside from an argument about exercising discretion under the long residence guidance (which never really took off), Mr Iyieke’s lawyers argued that although he had periods where he had no leave, these were “book-ended” by periods of leave, i.e. leave was subsequently granted and therefore those periods should count towards the 10-years of continuous lawful residence.

Alternatively, they argued, those gaps should be ignored from the calculation to allow Mr Iyieke to show a 10-year period of leave.

The relevant parts of paragraph 276B were (v)(a) and (b) which said:

“(v) … Any previous period of overstaying between periods of leave will… 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.”

In addition, the Immigration Rules defined “lawful residence” as residence pursuant to “temporary admission…where leave to…remain is subsequently granted”.

Mr Iyieke’s lawyers made the argument that sub-paragraph (a) was met because:

• Mr Iyieke did made a previous application before 24 November 2016; and
• within 28 days of expiry of his leave.

The Home Office argued that Mr Iyieke was misunderstanding what “previous application” meant. The term could not just refer to “any” previous application but only the application which resulted in a period of leave since the provision was specifically designed to deal with overstaying “between periods of leave”.

After 9 August 2014, when Mr Iyieke’s leave expired, there was nothing to “disregard” until he was given temporary admission until 28 November 2014 (and thereafter he made a successful application for leave to remain). The court concluded it was only from the date of Mr Iyieke’s temporary admission that he could start counting his 10 years of lawful residence. There was no answer to the gap between 9 August 2014 when his leave to remain expired and 28 November 2014, a gap of 111 days.

There was another short argument advanced that the part of the judgment in Afzal v Secretary of State for the Home Department [2021] EWCA Civ 1909 – which decided that book-ended leave did not count towards the 10 year period of continuous lawful residence – was confused because it had not considered other uses of the words “discounted” instead of “disregarded” in the Immigration Rules. For example, in paragraph 276ADE (which has now moved to Appendix Private Life). But trying to draw a distinction between the two words was hopeless, as Lord Justice Dingemans said, because:

“… [the] point…was based on a false proposition. This was that the Immigration Rules were drafted in one go as a coherent whole so that it would not readily be assumed that the drafter had used different words to convey the same meaning. It is necessary only to reflect on the way in which the Immigration Rules are numbered to see that the rules have been the product of many separate amendments made at different times by different persons”

There’s nothing too ground-breaking in this case. We’ve not been shy to point out the quality of the drafting in the Immigration Rules in the past, and the knock-on effect on applicants who get stuck with the fall-out of conflicting rules, guidance and case-law.

The constant characterisation of the new set of Immigration Rules as being “simplified” is frustrating when, in reality, the rules are being moved into appendices with a few words being dressed up here and there. Very little has been achieved in what should have been one of the biggest reforms of our Immigration Rules and applicants and their lawyers have to continue to pick up the pieces in our broken immigration system.