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An analysis of the judgment in R (on the application of Masum Ahmed) v SSHD [2019] EWCA Civ 1070

Written by
Mr Ioannis Karamarias, Biruntha Solicitors
Date of Publication:
05 September 2019

Immigrants who have lived continuous and lawfully for ten years in the UK can apply to obtain Indefinite Leave to Remain in the UK.

Could such a Leave be continuous if during the period of ten years contained some short "gaps" between lawful periods of stay of the Applicant, in which the Applicant's Leave to Remain in the UK had expired and the Applicant was overstaying? This was the issue that was raised and examined by the Court of Appeal Judges, (Lord Justices Floyd and Haddon-Cave), in the case of R (Ahmed) –v- the Secretary of State for the Home Department [2019] EWCA Civ 1070.

BACKGROUND OF FACTS

The Applicant, Mr Masum Ahmed, a Bangladeshi citizen, (and overstayer in the UK), applied for permission to appeal against a refusal of his application for indefinite leave to remain.

The Applicant, Mr Ahmed, had arrived in the United Kingdom in 2002, initially on a valid student visa. He had applied and had been granted Leave to Remain in the UK, until January 2007. In December 2006 he travelled to Bangladesh to visit his mother, there. On his return to the UK in February 2007, he was granted further periods of Leave to Remain in the UK, until March 2013.

In September 2013, he applied to the Home Office, under the Immigration Rules paragraph 276B for Indefinite Leave to Remain in the UK, on the basis of "long residence"; in this case, Mr Ahmed relied on a 10-year period residence with gaps, (no Leave to Remain in the UK), between the 31st May 2008 and the 2nd June 2008, (in other words, two days after his Leave to Remain had expired on the 31st May 2008 had passed by until he submitted his application to extend his Leave to Remain on the 2nd June 2008), but his application was refused.

Mr Ahmed applied further but his applications, followed by subsequent appeals were also refused. In August 2017, he submitted to the Home Office an application for Indefinite Leave to Remain in the UK, pursuant to Paragraph 276B of the Immigration Rules, application on the basis of "10 years continuous lawful residence", (in relation to this period of time there was a gap in which the Applicant had remained without a Leave to Remain in the UK, namely from the 21st December 2016 when his Leave expired and the 29th December 2016, when he re-submitted his application for Indefinite Leave to Remain in the UK), but this application was refused. Furthermore, the Secretary of State for the Home Office certified the above decision.

The issue that was raised before the Court of Appeal Judges, (Lord Justices Floyd and Haddon-Cave), was whether it was arguable that paragraph 276B(i) to (v) of the Immigration Rules operated so as to rectify short "gaps" between periods the Applicant was in Leave to Remain in the UK and therefore, enable the Applicants in a situation similar to that of Mr Ahmed, to claim "10 years continuous lawful residence" under paragraph 276B(i)(a) of the Immigration Rules.

PARAGRAPH OF 276B OF THE IMMIGRATION RULES

Those applying for long residence must satisfy rule 276B:

276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:

(i) (a) he has had at least 10 years continuous lawful residence in the United Kingdom.…

(v) the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. Any previous period of overstaying between periods of leave will also be disregarded where –

(a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or

(b) the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.

The Applicant submitted that gaps in his period of residence in the UK when he was applying out of time to get Further Leaves to Remain in the UK should be disregarded on the grounds of Paragraph 276B(v) and Paragraph 39E of the Immigration Rules; this would enable him to prove that he had resided in the UK for more than ten, (10), years, lawfully and unambiguously.

On the other hand, the Secretary of State supported that each of the requirements of Paragraph 276B of the Immigration Rules were independent and separate to each other, and therefore, the Applicant had to comply with each of them, in order to fully meet the requirements for obtaining the Indefinite Leave to Remain in the UK, pursuant to a 10-year lawful and continuous residence.

Under the provisions of Paragraph 276B of the Immigration Rules, the Applicant can well be granted the Indefinite Leave to Remain based on the 10-year rule, provided that:

Has short gaps in the period of his lawful residence in the UK, and makes out of time applications within 28 calendar days from the day his previous Leave to Remain in the UK expired, in case these gaps were created before the 24th November 2016, and/or,

Has short gaps in the period of his lawful residence in the UK on or after the 24th November 2016, but Leave was granted to the Applicant in accordance with Paragraph 39E of the Immigration Rules, (in case the application was made on or after the 24th November 2016), and,

(the Applicant) meets all the other requirement for lawful residence as provided by Paragraph 276B of the Immigration Rules. (as to the criminal conduct, the knowledge of the English language/Life in the UK Test and other requirements).

These Rules have been integrated into the Home Office Guidance in relation to the requirements to be met by the Applicants for the Indefinite Leave to Remain in the UK based on the 10-year rule.

THE DECISION OF THE COURT OF APPEAL -ANALYSIS

It was held, (by the Court of Appeal Judges Floyd and Haddon-Cave), that the wording of paragraph 276B was clear. The Court of Appeal judges relied on a decision of the Upper Tribunal of the 22nd October 2018, in Janed Ahmed case [2019] UKUT 00010 (IAC), and decided relying on the principles set up in the above case, namely;

• The provisions of Paragraph 276B(i) to (v) of the Immigration Rules were separate, self-contained provisions, each of which had to be met for an Applicant to be entitled to claim Indefinite Leave to Remain in the UK, based on "10 years continuous lawful residence".

• According to the Court of Appeal Judges, Paragraph 276B(v) must be given a self-contained meaning. It was held that the above Paragraph was built on the provisions of Paragraph 39E, which, in effect, granted a 14-day period of grace in respect of submitting Leave to Remain in the UK applications to the Home Office, under certain circumstances.

• Any reference to previous periods meant that, in requiring that the Applicant should not "be in the United Kingdom in breach of immigration laws", Paragraph 276B(v) was not simply taking into consideration the Applicants' status at the date of the Indefinite Leave to Remain in the UK, application, but also their previous immigration status.

• The crucial point was that not taking into consideration the current or previous short periods of overstaying for the purposes of Paragraph 276B(v)- on previous applications for Leave or Further Leave to Remain in the UK on the way leading to the application for Indefinite Leave to Remain in the UK based on the 10-year rule- does not transform such periods into periods of lawful Leave to Remain in the UK; still less were such periods to be disregarded when it came to considering whether an Applicant had fulfilled the separate requirement of establishing 10 years' continuous lawful residence, pursuant to Paragraph 276B(i)(a).

• There was a striking difference in the drafting of the definitions of "continuous residence" and "lawful residence" in Paragraph 276A(a) and (b), respectively. In relation to continuous residence, except defining it as an unbroken period, Paragraph 276A(a) went 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, was simply required to be continuous residence pursuant to certain types of Leave, temporary admission, immigration bail or exemption from any Immigration control. Unlike Paragraph 276A(a), there was no provision to clearly and unambiguously permit residence which was not continuously lawful, to be considered as unbroken.

• If the Applicant relied on the Secretary of State's 2017 "Long Residence" guidance whose provisions were not favourable to the Applicant's case. According to the Lord Justices Floyd and Haddon-Cave, although the Guidance provided examples of situations in which gaps in lawful residence could be disregarded, that was not compatible, in general, with the philosophy of Paragraph 276B. It should be immediately and readily acknowledged that the construction and interpretation of the Rules was to be distinguished "objectively from the language used", not from any guidance documents, (also in accordance with the principles established in Mahad (Ethiopia) v Entry Clearance Officer [2009] UKSC 16, [2010] 1 W.L.R. 48, [2009] 12 WLUK 493). On the other hand, the Secretary of State would be advised to re-assess the Guidance on the Long Residence application, (and the gaps that may have preceded it by the potential Applicants), with a view to confirm that this Guidance should not be treated as something different or legally more powerful than a mere Statement of Policy.

Based on all the above consideration, Permission of Appeal to Mr Masum Ahmed, was refused.

CRITICISM OF THE COURT OF APPEAL JUDGES' DECISION (THE FLAWS OF THE JUNED AHMED CASE WHICH LED TO THE CONTROVERSIAL INTERPRETATION OF THE MASUM AHMED CASE).

It is noteworthy that Paragraph 276B(v) of the Immigration Rules, as it currently stands is split in two parts. First, the Applicant must not currently be in breach of any immigration laws, (except where current periods of overstaying are to be disregarded). Second, it states which previous periods of overstaying between periods of leave will be disregarded.

The Judgement of the Senior Immigration Judge of the Upper Tribunal, Sweeney, in Juned Ahmed, (of the 22nd October 2018), (which was also largely followed in the Masum Ahmed case by the Court of Appeal Judges Floyd and Haddon-Cave in their judgement of the 21st June 2019), focuses on the construction and interpretation of the first part of Paragraph 276(v), (as to the breach of Immigration laws, in general), but disregards the second sub-paragraph. It is to be noted that Sweeney J., does not deal with or assess the legal status of an Applicant who has overstayed for a few days only, following expiry of the previous Leave to Remain in the UK, to the next application for Further Leave to Remain in the UK. (halfway through to the application for Indefinite Leave to Remain in the UK, based on the 10-year rule).

It is to be noted that the reasoning of Sweeney's J., judgment, namely that Paragraph 276B(v) must be treated as a self-contained and supplementary Paragraph to that of Paragraph 276B(1)(a), whilst the second part of the this Paragraph, (276B(v)(a) and (b) is not a self-contained and freestanding provision is unclear, confusing, inconsistent and, perhaps, devoid of any proper legal foundations; that is because, according to Sweeney J., a "previous" period of overstaying, (between two consecutive Leaves to Remain in the UK), has no relevance as to whether an Applicant is currently in the UK in breach of immigration laws and therefore whether he meets the requirement of the first sub-paragraph of Paragraph 276B(v), but on the other hand, (always according to Sweeney J.), it should be considered as relevant as to whether the Applicant meets the conditions of 10 years' continuous lawful residence in the UK, when it is the time for him to apply for Indefinite Leave to Remain in the UK, invoking the ten, (10)-year rule of long residence in the UK.

Therefore, as the requirement of paragraph 276B(i)(a) can be met in conjunction with the second part of paragraph 276B(v), since certain critical periods of the Applicant's overstaying followed by a grant of (Further) Leave to Remain in the UK are disregarded, [according to the criteria set in Paragraph 276B(v)], and also taken into consideration as to the Applicant's qualifying period for Indefinite Leave to Remain in the UK, pursuant to the ten, (10), years' continuous and lawful residence in the country, it is, under this point of view, disputable, (even incomprehensible), why the first part of Paragraph 276B(v), related to a current period of overstaying, namely to twenty-eight, (28), days, on applications for (Further) Leave to Remain before the 24th November 2016 and fourteen, (14), days on or after the 24th November 2016 on applications for (Further) Leave to Remain, (applications which, in both cases, were made towards meeting the ten-year rule of long residence with a view then for the potential Applicants to be enabled to apply for the Indefinite Leave to Remain in the UK), should be treated and interpreted by the Home Office and/or the Tribunals, differently.

POSSIBLE IMPLICATIONS FOR THE OVERSTAYERS APPLYING FOR LONG RESIDENCE (HOW THE FUTURE MAY BE FOR THEM).

In Masum Ahmed [2019] EWCA Civ 1070, the Court of Appeal judges, in deciding that "continuous residence" and "lawful residence", are two separate and distinct legal concepts, essentially acknowledged that Paragraphs 276A(a) and 276A(b) are two distinct paragraphs, with self-contained concepts, each; the former Paragraph deals with the absences braking the continuity of stay in the UK and having Leave to Enter upon exit and Entry, whilst the latter Paragraph deals with the concept of lawful residence in relation to being in Leave to Remain in the UK, or on temporary admission or on an Immigration control exemption status

However, the above interpretation of the ten (10)-year Long Residence rule, (in the two "Ahmed" cases), is a newly-introduced one by the Court of Appeal and cannot be considered as compatible with the way Courts and Tribunals have approached the Indefinite Leave to Remain in the UK application, so far. Under the Home Office Guidance, it has always been that if the Applicant applies for Indefinite Leave to Remain in the UK but has previously overstayed by less than 28 days, (before the 24th November 2016), or by less than 14 days on or after this date, and with a valid reason, such overstaying is disregarded and will not break continuity of residence.

The Masum Ahmed decision means that Applicants with positive, even flawless Immigration histories may find it difficult to settle in the UK, even if there may be no fault by their part.

For instance, an Applicant who has lived in the UK over the past ten years, (say, since September 2009), and from September 2009 to September 2019, he extended his Leave in in-country applications each time smoothly and continuously, or may have received on one or two occasions rejections by the Home Office, in his applications for (Further) Leave to Remain in the UK, halfway through to the ten-year route for the Indefinite Leave to Remain application, as invalid due to a Home Office failure to take payment, may now face serious problems in his application for settlement, (Indefinite Leave to Remain in the UK based on Long Residence in the UK).

The old Home Office paper forms and postal application system with its barriers and delays in taking payment meant that knowing whether payment of the (Further) Leave to Remain in the UK applications had been received by the Home Office, was simply not an option for the Applicants in question. However, for as long as the subsequent (Further) Leave to Remain application by the Applicant following any rejection by the Home Office, was being submitted promptly, (namely within 14 days for applications submitted on or after the 24th November 2016, or 28 days for those submitted before the 24th November 2016), this would never lead to the next application being refused. However, under the Court of Appeal's decision of the 21st June 2019, (in Masum Ahmed case, based on the precedent of the decision of the Upper Tribunal on Juned Ahmed case of the 22nd October 2018), namely, that the Secretary of State for the Home Department should take into consideration only Paragraph 276B(v), then the Applicant will not meet the requirements of 276B(i)(a) and will fall for refusal because of a short period of overstaying which before the above-quoted decisions, (in Juned Ahmed and subsequently in Masum Ahmed), were largely being disregarded.

In such a case, it seems unreasonable that a default in payment of the application fee by the part of the Applicant for a few days, (within the range of 14 or 28 days, the former or on after the 24th November 2016 the latter before the 24th November 2016), can have such a devastating effect upon the life of an Applicant, who, up until the moment of the application for Indefinite Leave to Remain in the UK, may have had a flawless and immaculate immigration history. Under this point of view, the Judges', (Sweeney's J., of the Upper Tribunal in Juned Ahmed case and Floyd's LJ and Haddon-Cave's LJ in the Court of Appeal in the Masum Ahmed case), approach that even a single day's gap in a ten-year period of time is fatal to an application for Indefinite Leave to Remain in the UK seems to be disproportionate.

Moreover, it would be unfair and disproportionate why a long residence Applicant should face adverse consequences for missing deadlines, (of no more than 14 days, for applications submitted on or after the 24th November 2016 or of no more of 28 days for applications submitted before the 24th November 2016 towards meeting the requirements for Indefinite Leave to Remain on long residence), only at the end of the road, namely of a ten-year period where the Home Office and the Courts or Tribunals have shown flexibility and leniency in the interpretation of the rules on several occasions before it, (namely in relation to the applications for Leave to Remain submitted by the Applicant in question halfway through the ten-year period). Moreover, if the Courts or Tribunals wish to apply the above rules in relation to the Long Residency applications, (namely that not a single day of overstaying should be disregarded, from now onward, in relation to an application for Indefinite Leave to Remain based on the ten(10) year route), why not apply it across all types of Indefinite Leave to Remain in the UK applications, (for instance on Indefinite Leave to Remain in the UK by Applicants having been for five consecutive years on TIER 1-all types, or TIER 2 Leaves to Remain in the UK), for reasons of consistency and above all, fairness?

Besides, if the Secretary of State for the Home Department has changed her approach or policy on the issue of the overstaying gaps in the Leaves to Remain in the UK, leading to an application for Indefinite Leave to Remain in the UK based on the ten (10) years' rule, then she has to make it unambiguously and undisputedly clear through a revised Guidance that will go public without any delay or procrastination.

It is not helpful to be arguing a point in the Tribunal, (or even in the Court of Appeal), which appears to directly contradict or cancel the published, (and fairly well-established, long-standing) Home Office policy, if this turns out to have adverse consequences to the life of Applicants, (and possibly their families), who have lived for at least ten years in the UK, and by way, (possibly), of a flawless and excellent immigration history up to that point they submitted their applications for Indefinite Leave to Remain in the UK, they may well have integrated in the UK, by making considerable contributions to the British economy and society in general.