Hoque & Ors v The Secretary of State for the Home Department (Rev 1)  EWCA Civ 1357 (22 October 2020)
Firstly, for those who are not familiar with the Long Residence visa route, what is it?
It is one of the visa routes to obtaining Indefinite Leave to Remain (ILR) by living in the UK for a lawful continuous period of 10 years. Additionally, please note that you must satisfy other eligibility requirements for this route. For further eligibility requirements, please refer to our webpage on:
The judgment in the recent case of Hoque & Ors v Secretary of State  EWCA Civ 1357 looks at whether the periods of overstaying mean that the person who has resided continuously in the UK for 10 years will qualify for ILR under the Long Residence route.
In Hoque & Ors v Secretary of State  EWCA Civ 1357, there were 5 Appellants with similar factual circumstances.
The Appellants have all lived in the UK for over 10 years and initially entered as students. Then, they had further leave to remain thereafter.
However, their leave to remain had expired and they were overstayers at the time of their applications. Thus, the Secretary of State sought to argue that they did not meet the requirements of paragraph 276B of the Immigration Rules, ‘Requirements for indefinite leave to remain on the ground of long residence in the United Kingdom’.
The Court of Appeal examined the interpretation of paragraph 276B and ruled that:
- The Court of Appeal unanimously ruled that paragraph 276B (i)-(v) are separate and self-contained.
- Lord Justice Underhill highlighted that there were 3 requirements under paragraph 276B(v) :
- Requirement A – ‘the applicant must not be in the UK in breach of immigration laws’
- Requirement B – ‘except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded.’
- Requirement C – ‘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 cases of Juned Ahmed and Masum Ahmed
- The Court of Appeal highlighted the serious problematic interpretation in the previous cases of Juned Ahmed and Masum Ahmed.
- In Masum Ahmed, the court ruled that each requirement under paragraph 276B were separate and it could not disregard any previous periods of overstaying which meant that applicants who had overstayed would not be able to satisfy requirements under 276B(i)(a) even if the individual overstayed for a day. Thus, the Court of Appeal in Hoque & Ors held that the reasoning in Juned Ahmed and Masum Ahmed was wrong. Furthermore, Masum Ahmed was wrongly decided because the court failed to distinguish between ‘open-ended overstaying’ (which means ongoing overstaying) and ‘book-ended overstaying’ (which means past overstaying). This is highlighted in paragraph 48:
‘’If the Secretary of State’s policy was to allow a short period of grace where the applicant was subsequently granted leave, why should it be any different where the application remains outstanding? The provisions in question should be construed purposively on the basis that the Secretary of State must have intended to provide consistently for equivalent situations.’’
- Drafting history
- The Court of Appeal highlighted that the requirement C mentioned above should be under sub-paragraph (i)(a) and not under sub-paragraph (v), thus, is a drafting error. This is because of the ambiguity of the immigration rules and the misinterpretation in Masum Ahmed.
- Therefore, any previous period of overstaying between leaves will be disregarded under sub-paragraph (v) and not to the current period of overstaying.
- The Court of Appeal recognised that the current Immigration Rules were indeed confusing and criticised the Secretary of State to make the guidance or the Rules clear.
- Lord Justice McCombe also emphasised the inconsistencies in the Secretary of State’s argument in Masum Ahmed and criticised for the ambiguity.
The effect of the decision in Hoque & Ors is that Masum Ahmed has been wrongly decided to state that an applicant will not be able to meet the ‘continuous lawful residence’ requirement if they had past periods where they overstayed. Resultantly, if an applicant has previously overstayed in the past and has made a valid in-time application where paragraph 39E applies (that an application is made within 14 days of the refusal or within 28 days before 24th November 2016), this period of overstay will be allowed. However, for ongoing overstaying, applicants would not satisfy paragraph 276B (a) which has to be read independently.
Please contact our friendly team of London immigration lawyers at Barar and Associates if you would like to discuss your UK immigration matter at email@example.com or call us on 020 7487 8370. You can access more information about us via https://bararassociates.com/.