Do past or present periods of overstaying mean that a person who has otherwise remained continuously in the UK with leave for 10 years cannot qualify for indefinite leave to remain (ILR) under the Long Residence Rule in paragraph 276B of the Immigration Rules? This question is considered in a judgment handed down today in Hoque and others v Secretary of State [2020] EWCA Civ 1357.

Paragraph 39E of the Immigration Rules permits applications for further leave by overstayers if made within the short period of 14 (or previously 28) days of the expiry of past leave. Paragraph 276B(v) disregards such periods of overstaying so that such a person is not regarded as being in breach of immigration laws. The appellants argued that the effect is that the requirement of continuous lawful residence in paragraph 276B (i)(a) is satisfied.

This issue has troubled many for some years now. It led to Sweeney J’s decision in R (Juned Ahmed) v Secretary of State for the Home Department [2019] UKUT 10 (IAC) and the non-binding decision of a two-judge Court of Appeal to refuse permission to appeal in R (Masum Ahmed) v Secretary of State for the Home Department [2019] EWCA Civ 1070. The former decision dealt with the situation where the current application for ILR was made within 14 days of the ending of previous leave. The latter decision dealt with the situation where 10 years continuous lawful residence were claimed when past applications had been made, and granted, with the benefit of paragraph 39E.  Both decisions relied on the same reasoning, but without a thorough analysis of the surrounding framework and context.

In Hoque, the court was persuaded to re-consider the issue on the basis that those decisions were arguably wrong. It then joined a number of other cases, resulting in the present decision.

The Court of Appeal has now unanimously held that the reasoning in Juned Ahmed and in Masum Ahmed was wrong and that Masum Ahmed was wrongly decided. However, by a split decision of 2 to 1, Lord Justices Underhill and Dingemans held that the result in Juned Ahmed was correct, but for different reasons. On that basis, the appellants in Hoque and others, who had applied within the permitted period of 14 (or 28) days for ILR, could not qualify under the Rules. Their separate argument under Article 8 of the ECHR failed because their human rights claims had been lawfully certified as ‘clearly unfounded’ by the Secretary of State and because, on their facts, they had shown nothing in relation to family and private life which might succeed before a tribunal judge. 

McCombe LJ however delivered a strong and cogent dissent. He accepted the entirety of the appellant’s arguments on the construction of the Rules. He further held that, if it was necessary to look at the Secretary of State’s policy Guidance, the appellants’ position was also supported by that Guidance. He addressed aspects of the surrounding framework which the majority did not.

The court unanimously criticised the Secretary of State for failing to make clear Rules and for belatedly advancing a new construction of the Rules, never previously put forward by the Secretary of State, just a few days before the full hearing in the Court of Appeal.

Manjit S. Gill QC and Edward Nicholson of No5 Chambers, London, appeared for the lead appellant, Mr Hoque, instructed by City Heights Solicitors.