Another nail in the coffin for 10 years lawful residence cases by the Court of Session in Scotland.
Lord Malcolm gave his opinion earlier this month in Mbomson v Secretary of State for the Home Department  CSOH 81. Although Court of Session is not bound by the court of appeal’s resent controversial case of R (Ahmed) v Secretary of State for the Home Department  EWCA Civ 1070 Lord Malcolm is nevertheless in full agreement with it.
According to paragraph 5 of the Opinion, the Court of Appeal described the issue in Ahmed as follows:
Does paragraph 276B(v) operate to cure short “gaps” between periods of lawful residence so as to entitle an applicant to claim 10 years lawful continuous residence under paragraph 276B(i)(a)? For the reasons set out in paragraph 15 of its judgment, the court said no. The provisions in 276B(i)-(v) are separate, freestanding provisions, each of which must be met. Sub-paragraph (v) was not drafted as an exception to subparagraph (i)(a). It has a self-contained meaning. So long as paragraph 39E is in play, it simply allows any current or earlier period of overstaying to be overlooked in respect of satisfying the requirement not to be in breach of immigration laws.
The critical point is that the disregarding of current or previous short periods of overstaying for the purposes of subparagraph (v) does not convert such periods into periods of lawful LTR; still less are such periods to be ‘disregarded’ when it comes to considering whether an applicant has fulfilled the separate requirement of establishing ’10 years continuous lawful residence’ under subparagraph (i)(a).
Paragraph 39E has no relevance to or impact upon the operation of paragraph 276B(i)(a)
Many immigration practitioners would agree with me that the above take of the court is not in line with long freestanding policy of the home office on 10 years lawful residence cases. Home office guidance also allows caseworkers to use their discretion when there are Gaps in lawful residence. The guidance states:
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
So far, it seems home office is sticking to their policy guidance above and exercising their discretion in favour of applicants if other requirements under the long residence category are met and reasonable explanation is available for any short gaps in between leave to remain.
Unfortunately, the guidance also requires to leave to be granted outside of the immigration rules when discretion is exercise (but for the same duration and conditions that would have applied under the immigration rules). Therefore, it is advisable to provide every evidence possible to mitigate any gaps during the applicant’s leave to remain.