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R (on the app of Afzal) (Appellant) v SSHD (Respt); R (on the app of Iyieke) (Appt) v SSHD (Respt)
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R (on the app of Afzal) (Appellant) v SSHD (Respt); R (on the app of Iyieke) (Appt) v SSHD (Respt)

Immigration Appeals and Indefinite Leave to Remain

Overview of the Case

  • The court is addressing two appeals related to immigration rules and the Immigration Health Charge Order, specifically concerning indefinite leave to remain (ILR) in the UK.

Key Legal Provisions

  • Paragraph 276B of the immigration rules allows for ILR after 10 years of continuous lawful residence, defined as having valid leave to remain.
  • The Immigration Health Charge Order requires immigrants seeking leave to remain to contribute towards NHS care while in the UK.

Mr. Afzal's Application

  • Mr. Afzal applied for ILR in 2020, claiming he had resided lawfully in the UK for over 10 years; however, his application was refused due to a break in continuity of lawful residence.
  • His original leave expired on July 14, 2017; he submitted a fee waiver application that was rejected, leading him to pay only part of the required fees. This resulted in his application being denied due to non-payment of the Immigration Health Charge.

Continuity Issues

  • After making a fresh application in February 2018 and receiving new leave until March 2022, Mr. Afzal argued that Section 3C of the Immigration Act extended his original leave until granted a new period from September 5, 2019. He believed this meant he had maintained continuous lawful residence for ILR eligibility under paragraph 276B.
  • The Secretary of State contended there was a gap between July 14, 2017, and September 5, 2019, which interrupted continuity; thus denying him ILR entitlement based on insufficient lawful residence duration.

Interpretation Dispute

  • A critical point raised by Mr. Afzal involved whether gaps covered by Section 3C could be counted towards the required ten years of continuous lawful residence or merely disregarded as unlawful periods without contributing positively toward residency calculations according to paragraph 276B(5).

Court Outcomes

  • In the Court of Appeal, it was determined that both arguments presented by Mr. Afzal were unsuccessful; hence he appealed further regarding these interpretations and their implications on his case status as well as others like him facing similar issues with immigration rules and applications for ILR under specific circumstances outlined above.

Mr. Aiki's Case: Bridging Gaps in Residency

Background Information

  • Mr. Aiki’s situation differs slightly; he became an overstayer after failing to apply for an extension before his initial leave expired on August 10, 2014 but later submitted an out-of-time application which faced multiple refusals before being granted limited leave until February 11,2020 followed by another extension until July30th ,2022 .

Application for ILR

  • On February17th ,2021 ,after residing more than ten years within UK territory ,he applied for ILR citing paragraph276b but faced refusal due primarily because there existed a gap totaling111 days between expiration dates across different periods where no valid status existed .

Argumentation Regarding Gaps

  • Mr.Aiki argued that proper interpretation allowed him bridging this gap since he made timely applications post-expiration date stipulated within other provisions governing such cases under immigration regulations .This highlights ongoing complexities surrounding legal interpretations affecting immigrant rights within British jurisdictional frameworks .

Court Decision on Immigration Rules

Overview of the Case

  • The Secretary of State clarified that for a fresh application to be valid under the immigration rules, it must be successful; Mr. Aiki's application from September 2nd was deemed unsuccessful.
  • The Court of Appeal supported the Secretary of State's interpretation, leading to Mr. Aiki's appeal being dismissed unanimously by this court regarding the first issue.

Key Legal Interpretations

  • Article 6 of the 2015 order mandates that an application for leave to remain is invalid if the Immigration Health Surcharge is unpaid within a grace period of 10 days.
  • Since Mr. Aiki failed to pay within this period, his application was invalidated, and Section 3C of the 1971 Act did not apply, affecting his lawful residence continuity.

Implications for Continuous Lawful Residence

  • The term "disregarded" in paragraph 276B(5) indicates that gaps in continuous lawful residence are ignored but do not count towards fulfilling the required ten years for lawful residence.
  • The court concurred with previous decisions that a gap can only be disregarded if a new application for leave is made within specified timeframes.
Video description

R (on the application of Afzal) (Appellant) v Secretary of State for the Home Department (Respondent) R (on the application of Iyieke) (Appellant) v Secretary of State for the Home Department (Respondent) [2023] UKSC 46 On appeal from [2021] EWCA Civ 1909; and [2022] EWCA Civ 1147 The facts in 2022/0021 are: Mr Afzal was originally granted limited leave to remain until 14 April 2013 on 4 February 2010. He was subsequently granted further leave to remain until 14 July 2017 as a Tier 1 entrepreneur. On 6 July 2017, before his leave had expired, Mr Afzal applied for an extension of leave, but the application was rejected as invalid by a notice dated 22 January 2018, due to Mr Afzal having failed to pay one of the required fees. Mr Afzal made no attempt to challenge that decision. Mr Afzal then made a fresh application on 2 February 2018 for further leave to remain, accompanied by the appropriate fees. On 5 September 2019 Mr Afzal was given leave to remain until 4 March 2022. In the period between 14 July 2017 and 5 September 2019, therefore, Mr Afzal did not have formal leave to remain. Mr Afzal made an application for indefinite leave to remain on 28 February 2020, for which one must have ten years' continuous residence pursuant to paragraph 276B of the Immigration Rules. On 11 March 2020 the Secretary of State refused that application on the basis that there was a period when Mr Afzal was not lawfully resident with the consequence that the period of continuous lawful residence had been broken. Leave to bring judicial review proceedings of the Secretary of State's decision was refused by two Upper Tribunal Judges, the first on the papers and the second after an oral hearing. The Court of Appeal granted leave to bring judicial review but dismissed Mr Afzal's claim. Mr Afzal now appeals to the Supreme Court. The issue in 2022/0021 is: (1) Does section 3C of the Immigration Act 1971 apply where an application for leave to remain is said to be invalid by reason of the failure to pay the relevant fee at the proper time, so that leave is extended by that provision until the application is decided or withdrawn? (2) What is the meaning of the word "disregarded" in the second sentence of para 276B of the Immigration Rules with regards to overstaying book-ended by periods of leave to remain? The facts in 2022/0168 are: The appellant is a Nigerian national who entered the UK on 13 February 2011 on a student visa and remained in the UK after that visa expired, thus becoming an overstayer on 10 August 2014. He applied for leave to remain on compassionate grounds in 2014 and on grounds of private and family life in 2015. On 11 August 2017, he was granted leave to remain on human rights grounds until 11 February 2020, later extended to 30 July 2022. On 17 February 2021, the appellant, having completed 10 years of residence in the UK, applied for Indefinite Leave to Remain under para 276B of the Immigration Rules – the long residence rule. The respondent refused the application and the appellant judicially reviewed that decision. The Upper Tribunal refused permission to bring the judicial review. The Court of Appeal granted permission to bring the claim but dismissed the substantive judicial review. The appellant now appeals to the Supreme Court. The issue in 2022/0168 is: Whether periods of time the appellant spent in the UK after overstaying a visa should be considered as time in the UK for the purpose of establishing 10 years' continuous lawful residence for an application for indefinite leave to remain in the UK. During the ten year period, the appellant had periods with leave and without leave to remain. The Supreme Court unanimously dismisses each of the appeals. More information is available on our website