23 October 2020

10 years lawful residence (Hoque & ors v SSHD)

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R (Masum Ahmed) V SSHD [2019] EWCA Civ 1070 wrongly decided by the court of appeal

Today court of appeal handed down its most awaited judgement on 10 years long residence rules. In case of Haque & ors v SSHD [2020] ECWA Civ 1357 COA has decided that the case of Masum Ahmed was wrongly decided. Unfortunately, it also upheld the decision in case of Juned Ahmed.

What were the issues in front of the Court?

Although there were other issues but primarily court had to decide

  1. whether varies sub-paragraphs under para276B constitute self-contained requirements or not and
  2. whether the disregard in sub-para(v) on which appellants rely can have an effect on the requirements under sub-para (i).

It was unanimously agreed that sub-paragraphs (i)-(v) are free standing and self-contained.

But the effect of sub-para (v) appeared to be more problematic.

In summary LJ Underhill and LJ Dingemans agree that disregard to any overstaying period under sub-para (v) could only be applicable to previous period of overstaying/overstaying in between  periods of leave and not to current period of overstaying.

LJ McCombe however gave a descending judgement and disagreed with the other two LJs.

In a nutshell It means any period of past overstaying, which COA referred to as “book-ended overstaying” or “overstaying between the periods of leave”, will be allowed where para 39E applies (application is made with in 28 days before 24 November 2016 and with in 16 days after that).

Unfortunately, any current period of overstaying or open-ended overstaying will not be allowed unless applicant has already accumulated 10 years continuous and lawful residence and application is made with in the permitted provisions of para 39E.

Descending Judgement from Lord Justice McCombe:

Not everyone on the panel agreed with the above conclusion. LJ McCombe disagreed with his peers and gave a descending judgement in allowing the appeal.

He referred to SSHD’s concession in their supplementary skeleton argument in which SSHD agreed that some of the reasoning in Masum Ahmed is erroneous.

LJ McCombe states:

“…..it seems to me that the conjunction of “will be disregarded” and will also be disregarded in the two sentences of sub-para 276B(v) naturally falls to be read as directed to the same matter. The idea that two phrases have different applications and effects is odd one……”

So, what are the practical implications?

As the judgement stands anyone who has not accumulated 10 years lawful residence before making an application under Para 276B (long residence) will not qualify based on this judgement. It is unclear if matters will be appealed further. Based on the descending judgement from LJ McCombe there will certainly be a case to argue.

About the Author

Awais Javed
Awais has an extensive experience of advising high net-worth individuals on all types of immigration matters, ranging from investor and entrepreneur visa applications to appeals and judicial reviews in the Immigration Tribunal and the High Court.

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