The latest Court of Appeal authority of R (Afzal) v SSHD 2021 EWCA civ1909 was recently published in respect of the 10-year residence route giving a decision regarding the nonpayment of Immigration Health Surcharge which led to the Applicant’s continuous residence being disrupted and the residing period considered to be unlawful.
Briefly mentioning the background of this case, the Applicant is a Pakistani citizen who came to the UK in February 2010 on a student visa. He extended his permission to stay until 14th July 2017 by always applying considerably before the expiry of his visa in question. The most recent application he lodged was the extension application which was accompanied by a fee waiver request. Subsequently, by letter, the Home Office refused the fee waiver request and gave the Applicant a period of 10 days within which he was required to pay the application and IHS fee.
The Applicant paid off the application fee, however, he failed to pay the IHS, as a result, his extension application was considered to be invalid. On 2nd February 2018 he made a further application for permission to stay, this was accepted, and the grant of permission commenced from 5th September 2019 until 4th March 2022. Since he had completed his 10 years of residence in the UK, he applied for indefinite leave to remain based on 10 years of continuous lawful residence. This application was refused on the basis that he had a gap in lawful residence between 14th July 2017 until 5th September 2019. The Applicant challenged the decision by way of Judicial review and the matter proceeded to the Upper Tribunal where it was held that the Applicant was lawfully resident until 22 January 2018, however his continuity of lawful residence was broken for the rest of the period until 5th September 2019.
The invalidity of an application
The question now arises as to what it means for an application to be declared invalid, the Supreme Court established two categories of validity rules in terms of the consequences for failing to meet them, this was decided in the case of Mirza 2016. The first category falls under the biometrics requirement, failure to enrol biometrics leads to the application being invalidated upon service of the notice of invalidity. Moreover, failure to meet the validity requirement renders the application invalid from the very beginning. The logic behind this distinction is that the deadline for submitting the biometrics comes sometimes after an application has been submitted online, whereas the rest of the validity requirements are able to be satisfied from the beginning. The court in Mirza found that it would be unfair to invalidate an otherwise valid application from the very beginning in those circumstances, this exception meant that the person in question will have S 3C leave and so continue to be a lawful resident in the UK.
The Judge in the case of Afzal found that his circumstances were much more like a failure to enrol biometrics than to other validity requirements, therefore, this
application did trigger s3C leave even though that leave lapsed on 22nd November 2017. At this point, the invalidity kicks in automatically by virtue of Article 6 of the Immigration Order 2015 which states that when IHS fee isn’t paid after a reminder the application must be treated as invalid. Therefore, the commonality in both scenarios is that the application is not treated as invalid from the beginning.
The court has also confirmed that, in most cases, invalidity is automatic by the application of the law, and it is important to note that the Secretary of State does and cannot determine that an application is invalid since she has no discretion in this matter. The notification that the application is invalid simply means the applicant made an application that was not valid due to any reason and there is nothing for the Secretary of State to consider.
Another important aspect drawn from this case is the paragraph 39E grace period after the service of notice of invalidity, the rule allows overstaying to be disregarded where an immigration application is lodged within 14 days after the refusal of an application is served. Mr. Afzal was seeking to rely on this grace period to establish 10 years of continuous residence to bridge the gap between 22nd November 2017 and 2nd February 2018. His argument was that his application was only refused when he was issued with the notice of invalidity on 22nd January 2018, since he submitted a new application within 14 days of that date his overstaying fell to be disregarded. This argument was endorsed by the court. The judge gave his view by stating that the period of 14 days for the purposes of para 39E ran from the date when the appellant was notified about the application being rejected on the basis that it was invalid, in this case, the notice was served on 22nd January 2018.
Following this decision, a person would still be an overstayer but will now have 14 days from the service of the notice of invalidity to lodge a new valid application, they would be protected from the consequences of that overstaying by para 39E.
Open and bookended overstaying
After several contradictory decisions, the CoA in Hoque 2020 ruled that where someone was relying on para 39E, the relevant period of overstaying 14 days can be disregarded for the purposes of 10-year routes. The court distinguished between ‘book-ended’ and ‘open-ended’ overstaying. Bookended is where the person makes a new application within 14 days of their leave expiring and this application is subsequently granted. On the other hand, open-ended overstaying means where the person makes a new application within 14 days of the expiry of his/her leave, but this application is refused. It was further established that the subsequent grant of the application in effect disregards overstaying which makes it lawful residence for the purpose of accruing 10 years of continuous residence whereas open-ended overstaying will break continuous residence.
Mr. Afzal wanted to rely on his book ended overstaying, but the court decided that although this type of overstaying does not break the continuity of residence at the same time it does not positively impact ten years of residence. Hence, it was concluded that overstaying covered by para 39E will not break the continuity of residence nor will it count when calculating continuous residence period, therefore it is vital for the Applicant to make up for any book ended overstaying period within their immigration history at the end of their lawful continuous leave before applying for ILR under long residence route.
The decision, in this case, represents a significant departure from the way the Home Office has approached long residence applications, which normally involved counting these protected periods of overstaying towards the ten-year qualifying period. In conclusion, it appears that any application made based on completing a particular qualifying period will involve discounting any periods the applicant was without permission, even if those periods are protected by Para 39E.
This case is now appealed further to the Supreme court by Mr. Afzal. It is yet to be seen how Home Office will react to this judgement.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Connaught Law and authors accept no responsibility for loss that may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Connaught Law. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Connaught Law.