Open-ended overstayers can’t rely on ten-year lawful residence rule

This, in a sentence, is the conclusion reached by the Upper Tribunal in R (Waseem & Others) v Secretary of State for the Home Department (long residence policy – interpretation) [2021] UKUT 146 (IAC).

Background: overstaying and long residence

This is the fifth time within the last few years that the higher courts have considered the long residence rules. In particular, there has been uncertainty about whether someone can quality for settlement based on ten years’ continuous lawful residence if they have any gaps during which time they were an overstayer.

In looking at this issue, judges draw a distinction between:

• book-ended overstayers – those who have overstayed between two specific dates in the past (e.g. due to making a late extension application which was subsequently granted); and
• open-ended overstayers – those who have not yet reached ten years and are overstayers when they make their application for indefinite leave to remain based on long residence (i.e. they have not had their overstaying brought to an end by a grant of permission to remain).

Keeping this distinction in mind helps to understand the numerous cases in this area.

The case law

In late 2018 the Upper Tribunal held that open-ended overstayers did not qualify for indefinite leave to remain. Their overstaying could not be disregarded for the purposes of the requirement to have ten years’ continuous lawful residence. It could only be disregarded for the purposes of the requirement to be in the UK lawfully at the time the application is submitted.

In June 2019, the Court of Appeal relied on this Upper Tribunal decision to conclude that book-ended overstayers also failed to qualify under the Immigration Rules (although could be granted settlement outside the Rules based on the policy guidance). This was because there was nothing allowing periods of overstaying to be disregarded in the relevant part of the Rules.

In October 2020, in a case called Hoque, the Court of Appeal performed a U-turn and that book-ended overstayers can qualify under the Immigration Rules after all. Although the position in relation to book-ended overstaying was reversed, the 2018 decision of the Upper Tribunal on open-ended overstaying was endorsed as “correctly decided”.

The subsequent Upper Tribunal case of Asif, which also concerned book-ended (“interjacent”) overstaying, followed the approach in Hoque.  

Now we have the case of Waseem.

What about open-ended overstaying?

On one view — the one put forward by the Home Office and accepted by the Upper Tribunal — open-ended overstaying is straightforward. A person needs to have ten years’ lawful residence in the UK at the time of their long residence application. If they do not have this because they became an overstayer before the ten-year anniversary of their entry, their application should be refused.

The applications do not fail because of unlawful residence (which can in certain circumstances be disregarded), but because they simply don’t have the required period of continuous residence.

In Waseem, three main arguments were put forward challenging this simplistic view:

1. The Home Office failed to consider and apply her long residence policy. The Court of Appeal confirmed that open-ended overstayers could not succeed under the Immigration Rules in Hoque, but did not consider the position under the Home Office’s policy guidance in detail. The guidance permitted a more favourable approach.
2. The Home Office failed to consider human rights. Consideration of whether granting some form of leave (even if limited, rather than indefinite) was necessary in order to strike a fair balance between the public interest in maintaining immigration control and the applicant’s right to respect for private and family life. This required consideration of whether the objective of the policy (to reward those who were present in the UK lawfully) could be achieved by less intrusive means.
3. The policy lacked foreseeability and accessibility. The Home Office did not even know what the policy was, or the purpose behind it, and changed their mind before the hearing.

Anyone following the development of the case law in this area will have sympathy with this last argument!

It is also reasonable to ask why overstaying can be disregarded in the middle of the ten-year period, but overstaying at the end of that period cannot. 

An open and shut case

The Upper Tribunal was not convinced:

We do not accept that the purpose of the policy was to recognise that those who had developed UK ties or had attempted to comply with the Rules were entitled to a wide-ranging discretion. Instead, the discretion was clearly limited and needed to be, in order to maintain the distinction between the two routes [the ten-year rule and the now abolished 14-year rule]. That distinction and the detailed examples, all of which were consistent with the ‘open-ended/book-ended’ distinction in relation to continuity of residence, were part of a whole.

The tribunal decided that, although there had been various changes to the rules and policy over the years, the open-ended/book-ended distinction had always been maintained. The issue of the applicant’s status at the date of application was separate to the question whether ten years continuous lawful residence had been acquired: 

In summary, an analysis of the various versions of the long residence policy and its earlier incarnation of the long residence concession supports the respondent’s contention that the core attribute of the 10 year route has always been the requirement to have 10 years’ continuous lawful residence. Paragraph 39E and predecessor provisions are a separate issue, relating to the effect on continuity of residence of out of time applications. To conflate that limited concession, so that residence ‘of any other legality’ is treated the same as continuous lawful residence, would undermine the very basis of the 10-year route.

The various exceptions provided for in the policy did not undermine the “core attribute” of continuous lawful residence — whereas allowing open-ended overstayers to qualify would.

The applicants’ criticism is, at its core, a complaint that there ought to be a similar exception for them, to reflect the fact that they have had some period of lawful residence, just not enough.

On foreseeability and accessibility, the Upper Tribunal acknowledged the Court of Appeal’s criticism of the drafting of the Rules in Hoque. But it noted that just because the Tules are unclear, it doesn’t mean the policy is unclear. On the contrary, the tribunal would:

…regard the policy as consistent with the ‘bright line’ requirement of 10 years’ continuous lawful residence, subject to discrete and rational exceptions, clearly explained and developed over time. Second, we reject the claimed ‘ambiguity’ in the purpose of the policy. The purpose is a constant theme since the introduction of the long residence concession, namely to strike the ‘fair balance’ between the need to maintain the ‘bright line’ and appropriate exceptions which recognize specific individual circumstances, which do not undermine the 10 year requirement. Third, the fact that the policy is more generous than the Rules does not make it lack in accessibility or foreseeability – on the contrary, it provides applicants with detailed guidance and examples, which permits them to arrange their affairs how they see fit.

The tribunal therefore rejected the applications for judicial review on all grounds.

What does this all mean in practice?

The decision in Waseem means that making a long residence application as an overstayer a short time before you reach ten years’ continuous lawful residence will lead to refusal. This open-ended period of overstaying cannot be disregarded (under either the Rules or the policy guidance). The policy of allowing an application to be made 28 days before completing the required qualifying period does not assist, as the accrual of continuous lawful residence stops on the day the person becomes an overstayer.

Only people who can make an application to remain on some other basis (for instance as a Skilled Worker, or as the spouse of a British citizen) can get back on track for the purposes of accruing lawful residence. They can benefit from the provision at paragraph 39E allowing an application to be made within 14 days of permission expiring. Such people, if their application is granted, will then become book-ended overstayers whose period of overstaying can be disregarded.