Supreme Court dismisses appeals in validity and continuous residence case

This week, the Supreme Court brought us the (hopefully) final instalment of the long residence cases, R (Afzal) v Secretary of State for the Home Department [2023] UKSC 46. Immigration lawyers have followed the long series in this line of cases the way we followed Game of Thrones: they both upended our collective understanding of the status quo, there were many twists along the way, not everyone kept up with all of the increasingly labyrinthine plots and by the end of season 8, everyone was just glad that it was finally over.

We previously covered the Court of Appeal decision in this case in a lot of detail here. You might want to skim that post as a refresher as the Supreme Court largely affirms that decision without breaking much new ground.

Mr Afzal

Mr Afzal’s full immigration history is set out in our previous post here but the only relevant part to these proceedings is as follows. On 6 July 2017, he made an in-time application to extend his leave, along with a fee waiver.

On 18 October 2017, the Home Secretary rejected the fee waiver and gave Mr Afzal 10 days to pay the application fee and the immigration health surcharge. On 1 November 2017, he paid the application fee but not the immigration health surcharge.

On 8 November 2017, he was sent another reminder to pay the immigration health surcharge within days. Mr Afzal never made this payment so on 22 January 2018, the Home Secretary sent him a notice that his application was invalid.

On 2 February 2018, Mr Afzal lodged a fresh application, which was granted on 5 September 2019.

The two issues before the court were whether he had the benefit of section 3C leave throughout this time and if not, whether the time he spent as an overstayer could be counted towards the 10 years Mr Afzal needed to qualify for settlement on the basis of long residence.

The decision

The Supreme Court affirmed the Court of Appeal’s decision on both counts.

On the issue of section 3C leave, the court held that much like Ms Ehsan in the Mirza case, where the issue was a failure to enrol her biometrics, Mr Afzal’s 6 July 2017 application was valid but its continuing validity was conditional on his making the payment of both fees when asked to do so. Thus when he failed to make the payment before the required deadline, the validity ended and he became an overstayer (at para 64):

Therefore, as Sir Patrick Elias explained (para 38), Mr Afzal’s application for leave was valid, but its continuing validity was conditional on him paying the relevant fees when it was determined that he should pay them. He was entitled to rely upon section 3C until the point where his application ceased to be valid. Taking the commencement date as 18 October 2017 rather than 8 November 2017, the date when Mr Afzal’s application ceased to be valid was 31 October 2017.

Lord Sales continues (at para 65):

Mr Afzal’s appeal must therefore be dismissed. His further application in February 2018 for leave to remain was not made within 14 days of the expiry of the extension of his original leave under section 3C. The result is that he cannot rely upon para 39E(2)(b)(ii) as he seeks to do for the purposes of his argument based on para 276B(v).

Here, the Supreme Court diverges a little from the Court of Appeal, as the latter held that the February 2018 application was lodged within 14 days of receiving a decision on his application, despite the fact that this was a rejection and not a refusal, and is thus still covered by paragraph 39E. The Home Office has since changed the wording of this paragraph to also cover rejections so this is a moot point (my emphasis):

39E. This paragraph applies where:

[…]

(2) the application was made:

• following the refusal or rejection of a previous application for leave which was made in-time; and

(b) within 14 days of:

(i) the refusal or rejection of the previous application for leave; or

(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or

(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal in relation to the previous application (where applicable); or

(iv) any such administrative review or appeal being concluded, withdrawn, abandoned or lapsing

However, this does not help Mr Afzal as the Supreme Court agreed that the word “disregarded” in the context of looking at periods of overstaying that fell to be disregarded under paragraph 276B must be given its natural meaning. That is to say, that a period of overstaying covered by paragraph 39E did not break continuity of leave, so the clock was not restarted, but neither can it be counted towards the 10 years.

Mr Iyieke

Mr Iyieke entered the UK as a student on 13 February 2011 with leave valid until 30 November 2012. He made an in-time application to extend his leave, which was granted until 9 August 2014.

He failed to apply before his leave expired and became an overstayer on 10 August 2014. On 2 September 2014, i.e. within the 28 day grace period that existed before November 2016, he lodged a fresh application on human rights grounds, which was refused on 29 October 2014 with no right of appeal.

What the Supreme Court decision leaves out of the immigration history before referring to it indirectly at the core of its reasoning is that Mr Iyieke was granted temporary admission on 28 November 2014.

He subsequently lodged another application on 26 February 2015 and was eventually granted leave outside the rules on 11 August 2017. Mr Iyieke argued that the period of overstaying between 10 August 2014 and 28 November 2014 fell to be disregarded under para 276B(v)(a), which states:

(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

Essentially, he argued that prior to being granted leave, his previous application, though unsuccessful, was made within 28 days of the expiry of his leave and before 24 November 2016, so it should be disregarded on this basis.

The Supreme Court disagreed (para 86):

The wording of the rule is infelicitous, but Dingemans LJ was right to focus on the use of the definite article. The rule does not refer to any previous application for leave which a person might have happened to have made, even if unsuccessful, which falls within the period of overstaying which is to be disregarded according to the rule. In my view, “the previous application” referred to is the application which resulted in the second leave being granted. The use of the definite article shows that one particular application is being referred to, and the only application which could rationally be said to be significant in the context of the second limb of para 276B(v) is the application which resulted in the grant of the second period of leave which book-ends the period of overstaying referred to in that limb.

Temporary admission

It’s worth pointing out that everyone involved in this litigation, including the Supreme Court and the Home Office, seemed to have accepted that Mr Iyieke’s grant of temporary admission (now known as immigration bail) following a refusal of his in-country application would theoretically count towards his 10 years, if he otherwise qualified.

At all relevant times, paragraph 276A stated:

(b) ‘lawful residence’ means residence which is continuous residence pursuant to:

[…]

(ii) temporary admission within section 11 of the 1971 Act (as previously in force), or immigration bail within section 11 of the 1971 Act, where leave to enter or remain is subsequently granted

Section 11 of the 1971 Act is concerned with temporary admission/immigration bail granted to someone at port:

A person arriving in the United Kingdom by ship or aircraft shall for purposes of this Act be deemed not to enter the United Kingdom unless and until he disembarks, and on disembarkation at a port shall further be deemed not to enter the United Kingdom so long as he remains in such area (if any) at the port as may be approved for this purpose by an immigration officer; and a person who has not otherwise entered the United Kingdom shall be deemed not to do so as long as he is detained under the powers conferred by Schedule 2 to this Act or section 62 of the Nationality, Immigration and Asylum Act 2002 or on immigration bail within the meaning of Schedule 10 to the Immigration Act 2016.

A person who is granted temporary admission or immigration bail in those circumstances is deemed to not have entered the UK, legally speaking, even as they are physically allowed into the country, and the most common way someone finds themselves in this position is if they claim asylum upon arriving in the UK. In effect, this cohort of applicants are standing outside the UK, waiting for a decision, even if physically they’re in the UK.

It seems clear that the language of paragraph 276A, as it was then, only referred to people who were granted temporary admission/immigration bail by virtue of making a claim or application at the border. In Mr Iyieke’s case, he was granted temporary admission following the refusal of an in-country application, so it is not clear why all the parties in this case thought this provision applied to him.

This point is mostly moot, however, as paragraph 276B has since been amended to remove all types of temporary admission/bail from counting towards the 10 years.

Conclusion

The court concluded by once again commented on the absurd complexity of the immigration rules (paragaph 91):

A final comment is in order. In cases dealing with this part of the Immigration Rules, judges have repeatedly commented on their poor drafting. Poor drafting needlessly creates difficulties and uncertainties which lead to expensive litigation. It is highly desirable that the project to redraft the Immigration Rules to make them clearer should be carried forward to completion.

This will come as no surprise to anyone with even a passing familiarity with the rules but it’s always nice to see this acknowledged.