Any Gaps between leave to remain break 10 years continuous long residence
The Applicant sought permission to appeal (PTA) against a decision of Upper Tribunal Judge Gleeson dated 27th September 2018. The original substantive decision under challenge is SSHD’s decision of 26th April 2018 refusing and certifying the Applicant’s application for Indefinite Leave to Remain on the basis of “10 years continuous lawful residence” in the United Kingdom. The issue on this application for PTA was the same as the decision of Sweeney J in R (on the application of Ahmed) v Secretary of State for the Home Department (para 276B – ten years lawful residence) [2019] UKUT 00010 (IAC), namely, whether it is arguable that paragraph 276B(v) operates so as to cure short ‘gaps’ between periods of LTR with the effect of allowing persons such as the Applicant in the present case to claim “10 years continuous lawful residence” under paragraph 276B(i)(a).
Confusion starts from paragraph 12 of the judgement which provides:
“Mr Sarker argued that the two ‘gaps’ in the Appellant’s period of residence when the Applicant applied for extensions to LTR out of time – namely (i) between 31st May 2008 and 2nd June 2008 and (ii) between 21st and 29th December 2016 – should be “disregarded” by reason of the operation of paragraph 276B(v) and paragraph 39E of the Rules and that the Applicant can, therefore, demonstrate “10 years continuous lawful residence” in UK under paragraph 276B. Mr Sarker submitted that PTA should be granted because the point raised in this appeal is, at least, arguable and, in any event, it is a point of general importance upon which guidance should be given because there are a number of other cases pending which raise the same argument.”
Accordingly, the gaps in question are:
- 31st May 2008 – 2nd June 2008 and
- 21st – 29th December 2016
These gaps, when further leave was granted on subsequent applications by the Applicant were not the point of dispute between the SSHD and the Applicant. “Long Residence” Guidance (Version 15.0) published on 3rd April 2017 confirms the same.
At paragraph 15, the Lord Justices explain the reasoning behind their judgement. Paragraph 15 thus provides:
“In our view, the wording of paragraph 276B is clear:
(1) First, the provisions of paragraph 276B(i)-(v) are separate, freestanding provisions each of which has to be met in order to for an applicant to be entitled claim “10 years continuous lawful residence” under paragraph 276B (see paragraph 276C).
(2) Second, sub-paragraph (v) is not drafted as an exception to sub-paragraph (i)(a) and makes no reference to it. There are no words which cross-refer or link sub-paragraph (v) to sub-paragraph (i)(a), or vice-versa, whether expressly or inferentially.
(3) Third, there is no difficulty in giving sub-paragraph (v) a self-contained meaning. It makes use of the provisions of paragraph 39E of the Rules. Paragraph 39E is the ‘exceptions for overstayers provision’ which, in effect, grants a 14-day period of ‘grace’ in respect of the lodging of LTR applications in certain circumstances. Under sub-paragraph (v), where paragraph 39E applies, any current period of overstaying as well as any previous period of overstaying after the advent of the amendment to the rules on 24th November 2016 will be “disregarded”. In addition, periods of overstaying of less than 28 days before that date are also disregarded. The reference to previous periods means that, in requiring that the applicant should not “be in the United Kingdom in breach of immigration laws”, the sub-paragraph is not looking simply at the applicant’s status at the date of the application, but also looks back in time to his previous immigration status. Mr Sarker confirmed that the sub-paragraph referred to all previous periods of overstaying. This is, of course, subject to the SSHD’s residual discretion.
(4) The critical point is that the disregarding of current or previous short periods of overstaying for the purposes of sub-paragraph (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 sub-paragraph (i)(a).
(5) Fourth, there is a marked contrast in the drafting of the definitions of “continuous residence” and “lawful residence” in paragraph 276A sub-paragraphs (a) and (b) respectively. In respect of continuous residence, in addition to defining it as an unbroken period, the sub-paragraph goes on to deem that it “shall not be considered to be broken” by certain periods of absence from the UK. Lawful residence, on the other hand, is simply required to be continuous residence (i.e. unbroken) pursuant to certain types of leave, temporary admission, immigration bail or exemption from immigration control. Unlike sub-paragraph (a), in sub-paragraph (b) there is no corresponding provision which allows residence which is not continuously lawful to be deemed unbroken. It is here that one would expect to find the saving which the Applicant incorrectly contends is created by paragraph 276B(v), and one does not. We consider that to be a clear indication that the lawfulness of continuous residence must be unbroken.
(6) Fifth, by contrast, there are examples elsewhere in the Rules expressly providing that “continuous periods” of lawful residence in the UK shall be considered “unbroken”, notwithstanding periods of overstaying, where paragraph 39E applies. There are to be found in specific areas where such an exception was clearly intended, e.g. Appendix ECAA relating to ECAA Nationals and settlement and e.g. Part 6A of the Rules in relation to the Points Based System. Part 6A provides as follows (emphasis added):
“Part 6A
Points-based system
245AAA. General requirements for indefinite leave to remain
The following rules apply to all requirements for indefinite leave to remain in Part 6A and Appendix A:
(a) References to a “continuous period” “lawfully in the UK” means, subject to paragraph (e), residence in the UK for an unbroken period with valid leave, and for these purposes a period shall be considered unbroken where:
…
(iv) the applicant has any previous period of overstaying between periods of leave disregarded where: the further application was made before 24 November 2016 and within 28 days of the expiry of leave; or the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied. …” (emphasis added)
(7) Sixth, applying ordinary rules of statutory construction and the presumption of ideal, rational legislation, these differences in drafting should not be read as accidental or unintended (c.f. Bennion on Statutory Construction, section 9.3).
(8) If and insofar as reliance is placed on the SSHD’s “Long Residence” Guidance (Version 15.0) published on 3rd April 2017, this does not avail the Appellant. We note that “Example 1” and “Example 2” on page 16 of the Guidance say 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”. This does not accord with the true construction of paragraph 276B as set out above, although it may reflect a policy adopted by the SSHD. However, it is axiomatic that the intention of the Rules is to be discerned “objectively from the language used” not from e.g. guidance documents (per Lord Brown in Mahad (Ethiopia) v. Entry Clearance Officer [2010] 1 WLR 48 (2009) at paragraph 10). The SSHD may wish to look again at the Guidance to ensure that it does not go any further than a statement of policy.”
What will happen next?
Previous UT decision of Sweeney J in Juned Ahmed (supra) was comparatively clear and only dealt with the construction of 276B(i)-(v) confirming these provisions are separate and freestanding provisions each of which has to be met in order for an applicant to claim “10 years continuous lawful residence” under paragraph 276B. Juned Ahmed (supra) did not raise any issue regarding any gaps between lawful residence when gaps were covered under paragraph 39E.
From paragraph 15 (1-8) above it seems, upon a conservative reading, that any gaps anywhere in long residence (whether current period of overstaying as well as any previous period) will not be covered under the exception of paragraph 39E of the immigration rules. Therefore, if SSHD wants to apply this judgement strictly this interpretation will be open to him. Whether this reading is an intended consequence of the judgment or not is yet to be seen in other similar cases.
Court of appeal has already started contacting other applicants with similar claims to inform the court of their intention to proceed further and if they do, submit a fresh skeleton argument confirming the basis to proceed further.
In my opinion litigation related to the issue of construction of long residence rules is far from over. It will however be very hard to predict who will have the final laugh.
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