This is our fourth blog in a series of blogs written regarding recent developments in case law on overstaying and applying for settlement, also known as indefinite leave to remain (‘ILR’), on the basis of 10 years of residence in the United Kingdom. This post will summarise the current landscape of case law addressing the continuous lawful residence requirement, before moving on to consider the updated Home Office Guidance on Long Residence.
The Immigration Rules on Continuous Lawful Residence
The key requirements regarding lawful residence in the UK can be found in the following paragraphs of 276B of the Immigration Rules:
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:
(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.
For most applications, what is relevant is that paragraph 276A(b) defines lawful residence as residence which is continuous and pursuant to existing leave to enter or remain. Therefore, it is important to determine when you actually had leave to enter or remain. This becomes particularly tricky in periods when you had a pending application, appeal or administrative review. In my previous post, I considered the circumstances in which section 3C could extend leave, or paragraph 39E applied if an application was made out of time.
The First Ahmed Case – Disregarding current overstaying doesn’t mean you’ve accrued 10 years
In the case of R (on the application of Juned Ahmed) v Secretary of State for the Home Department (para 276B – ten years lawful residence)  UKUT 00010 (IAC) considered in depth here by my colleague Alex Papasotiriou, the Upper Tribunal held 276B(v) to be freestanding and additional to paragraph 276B(i)(a). This means you must have at least 10 years of continuous lawful residence in the UK without counting any periods overstaying.
Essentially, this case affects people who tried to apply for ILR after their leave had expired; this could be the expiry of their visa, after their appeal rights are exhausted, or following a refusal or unsuccessful administrative review. They are overstayers at the date of application.
In Juned Ahmed, it was said that if you have accrued 10 years of continuous and lawful residence prior to your application, and if 39E applies to you, you can rely on 276B(v) and your application will not be refused. However, if you apply before you have accrued 10 years of continuous lawful residence, the period of overstaying (unlawful residence) while your ILR application is pending, will not be added to your prior period of lawful residence to assist you in reaching 10 continuous lawful years.
For example, you entered the UK on 1 January 2009 and you always applied for extensions before your leave expired, but your application was refused on 1 December 2017 with an in-country right of appeal. You appealed in-time and throughout the pending appeal your leave was extended by virtue of section 3C. On 1 January 2019, if your appeal was not finally determined, you had acquired 10 years of continuous lawful residence. However, if your section 3C came to an end on 1 December 2018 when you became appeal rights exhausted, applying for ILR on the basis of long residence on 14 December 2018 would not mean you had acquired 10 years of continuous lawful residence. The current overstaying will not be disregarded in the sense that it makes the period in which you are currently overstaying lawful. You would still be several weeks short of 10 years.
This was the first case in which the courts’ interpretation of paragraph 276B made long residence applications more difficult.
The Second Ahmed Case – any prior overstaying will break lawful residence
The Court of Appeal in a decision on permission to appeal, decided to further narrow paragraph 276B with their interpretation. Unfortuitous as it may seem, this case also related to an appellant with the surname Ahmed: R (on the application of Masum Ahmed) v Secretary of State for the Home Department  EWCA Civ 1070. We consider this case in depth here.
In summary, it was considered that although previous periods of overstaying were excepted (where 39E applied, or prior to 24 November 2016 where the application was made within 28 days), the application of the 14-day or 28-day grace period did not convert these periods into lawful leave to remain.
Continuing our example above, if you entered the UK on 1 January 2009, and at one point in 2014 made an application 20 days after your leave expired, which was subsequently granted, those 20 days of overstaying would break your lawful residence, regardless of the fact that making it 28 days out of time was then permitted by the Rules, and you were subsequently granted further leave to remain.
In Masum Ahmed, the Court of Appeal indicated that the Home Office’s Guidance which then stated on page 16 that, “gaps in lawful residence” can be disregarded because ‘the rules allow for a period of overstaying of 28 days or less when that period ends before 24 November 2016’ was far more generous than their interpretation of 276B and that the ‘SSHD may wish to look again at the Guidance to ensure that it does not go any further than a statement of policy’.
However, their interpretation was said to have been based on ‘applying ordinary rules of statutory construction and the presumption of ideal, rational legislation’, and therefore ‘differences in drafting should not be read as accidental or unintended’. This did not sit well with many immigration practitioners who struggle on a daily basis with inconsistent drafting within the Immigration Rules, which are far from a tightly drafted statute.
Home Office Guidance on continuous lawful residence
In light of all of the above (still good) case law, it may come as a temporary relief to note that despite the warning from the Court of Appeal, the new Long Residence Guidance published for Home Office staff on 28 October 2019 maintains the long-standing application of paragraph 276B. For example, on page 16 it states under ‘Gaps in lawful residence’:
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
- meets all the other requirements for lawful residence
The examples of gaps in lawful residence are also helpful:
An applicant has a single gap in their lawful residence due to submitting an application 17 days out of time. All other applications have been submitted in time, throughout the 10 years period.
Question Would you grant the application in this case?
Answer Grant the application as the rules allow for a period of overstaying of 28 days or less when that period ends before 24 November 2016
An applicant has 3 gaps in their lawful residence due to submitting 3 separate applications out of time. These were 9, 17 and 24 days out of time. Question Would you grant the application in this case?
Answer Yes. Grant the application as the rules allow for periods of overstaying of 28 days or less when that period ends before 24 November 2016.
For now, if the Home Office apply their own guidance, gaps of overstaying where applications were made no more than 28 days out of time pre-24 November 2016, or 14 days after that date if 39E applies, should not break the lawfulness of the continuous residence.
However, watch this space for further developments in case law or guidance.