Interjacent overstaying may favourably count in 10 year-long residence application

In Asif (Paragraph 276B, disregard, previous overstaying) Pakistan [2021] UKUT 96 (IAC) the Upper Tribunal confirms that previously disregarded overstaying between periods of leave should be treated as lawful residence for individuals making 10 year long residence applications.

Background

Individuals who have spent 10 years in the UK with continuous lawful residence can apply for Indefinite Leave to Remain on the basis of long residence via paragraph 276B of the Immigration Rules.

According to the relevant Home Office guidance, individuals who had overstayed for short periods of time within the 10 year residence period could have this overstaying disregarded for the purposes of their long residence application.

However, this policy position was thrown into doubt by the decision of the Court of Appeal in R (Ahmed) v SSHD [2019] EWCA Civ 1070, and which suggested that any period of overstaying (even if it has been disregarded by the Home Office at the time) prevented the clocking up of the necessary 10 year continuous residence period.

The confusion was inevitably caused by the impenetrable drafting of paragraph 276B which, like a replay of bad tackle, gets worse every time you look at it.

That issue was resolved to a greater or lesser extent in Hoque, in which three court of appeal judges attempted to make sense of the relevant paragraph, and a majority came to the conclusion that periods of overstaying between periods of lawful leave (where those periods of overstaying had been disregarded at the time) did not break the continuous lawful period required by the rules for a 10 year long residence application.

But what about where the disregarded period was particularly long, and an applicant needed to be able to rely on this time in order to cross the 10 year threshold?

Example timeline

In the present case, Mr Asif had been in UK lawfully for several years when he made an application to extend his leave on 3 February 2013, and which was refused. He then appealed (in-time) against the refusal, before eventually withdrawing his appeal on 3 July 2014.

On 25 July 2014 (i.e. within 28 days of the withdrawal), he made a new application. Following a judicial review of a further refusal, this application was eventually granted, 507 days later, on 23 November 2015.

When Mr Asif came to make his 10 year long residence application, he relied on this 507 day period as part of his 10 year lawful residence period in the UK, and required to satisfy the relevant rules.

The question in the appeal was whether the decision in Hoque meant that this period where, at the time, Mr Asif had no permission to be in the UK, could be converted into lawful leave for the purposes of the long residence rules.

Hoque followed

The Home Office position was that this 507 day period could not be counted as continuous lawful residence, and that Hoque was not authority to suggest that such periods in the UK without permission could be ‘converted’ to lawful leave.

Relying again on the Home Office guidance which suggested in its examples that this indeed was the practice it would adopt, the Upper Tribunal concluded that

As the appellant’s application made on 25 July 2014 was in accordance with paragraph 276B(v)(a), the period of his overstaying is treated as lawful residence in accordance with the principles established in Hoque.