Written by Katherine Chan.

 

 

The recent case of R (on the application of Afzal) v Secretary of State for the Home Department [2021] All ER (D) 82 (Dec) sheds light on the contentious issue of continuous lawful residence under paragraph 276 of the Immigration Rules. The Court held in this case that although the appellant’s 14 days of overstaying did not break the period of lawful residence, that period could not count towards the calculation of the requisite ten years continuous lawful residence.

 

Facts of the case

 

The appellant, a national of Pakistan, had entered the United Kingdom as a student and was granted entry clearance. Subsequently he was granted subsequent leave to remain. However, before his leave had expired, he applied for an extension of leave, being the first application. His application was rejected for not paying the Immigration Health Surcharge (IHS) fees. Then the appellant made a second application for further leave, this time with the IHS fee. The application was successful and he was granted leave to remain.

 

After completing ten years of continuous lawful residence pursuant to s 276B of the Immigration Rules 2014, the appellant applied for indefinite leave to remain (ILR).The respondent Secretary of State refused the application for ILR as there was a period when the appellant had not been lawfully resident in the country. The appellant challenged that decision by judicial review, which was refused. The appellant appealed.

 

Issues for consideration

 

The Court considers three issues in this case: firstly, whether the period during which the leave application fee had not been paid extended the time pending the result of a fresh application for leave, provided that application was made prior to the previous period of leaving coming to an end; secondly, whether the period of overstaying had broken the period of lawful residence, and thirdly, whether this residence counted towards the ten year requirement of continuous lawful residence.

 

Judgment of the Court of Appeal

 

In relation to the first issue, the Court held that if the opportunity to pay IHS fees within the specified period was not taken, the application remained invalid and did not become invalid at that point in time. Since the duty to pay forms a part of the application, it was not possible to say that there was a valid application that was only later invalidated by the failure to pay the fee. Therefore, the Appellant’s leave was only extended to the moment when he was notified of the rejection of his application, not a single day more afterwards.

 

When it comes to the second issue, the period of overstaying had to be disregarded when calculating whether there was the ten year requisite period of continuous lawful residence. The result was that the period of overstaying had not broken the continuity and had not required the period of lawful residence to be started again.

 

In relation to the third issue, the Court held that the period of overstaying could not be treated as lawful. Therefore, there was a gap between the two applications which, whilst not breaking the period of lawful residence, could not be counted towards the calculation of the requisite ten years’ continuous lawful residence. It could not be said that the appellant had achieved ten years lawful residence by the date of the Secretary of State’s refusal.

 

Accordingly, even though the court granted the appellant leave to challenge the decision by judicial review, the application was dismissed on the ground that the appellant had not completed ten years’ continuous lawful residence by the date of the decision.

 

Our thoughts

 

Taking the facts of this case into consideration, it is clear that the appellant would have been better off, should he have waited for longer before submitting the relevant application so that he will be more likely to fulfil the requirement of lawful residence. The case also serves as a cautionary tale for appellants for indefinite leave to remain, obvious and trivial as it may seem, how important it is to pay application fees in full and in time! For a successful application it is not enough to provide sufficient evidence, but adhere to the requirement of the Home Office.

 

Lastly, should you have any queries about breaking continuous residence in your leave application, do not hesitate to get in touch with us.

 

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