After Hoque v Secretary of State for the Home Department [2020] EWCA Civ 1357, the recent Court of Appeal decision in Afzal, R (On the Application Of) v Secretary of State for the Home Department [2021] EWCA Civ 1909 (17 December 2021) has left a few immigration practitioners flummoxed.

Could it be that Afzal has just struck a death-knell on claims seeking to rely on Hoque’s judicially engineered concept of historic book-ended overstaying as counting towards10years continuous lawful residence?

Afzal is a hard read, however perseverance rewards the reader. Not only is the decision relevant to  Section 3C leave issues and validity of applications ( as expounded in R (Mirza) v Secretary of State for the Home Department [2016] UKSC 63) but also the possible effects on a long residence application following previous invalidation of a leave to remain application after the rejection of a fee waiver application.

Background:

The appellant was granted entry clearance as a student on 4 February 2010 with limited leave to remain until 14 April 2013. On 12 December 2012 he made a further application to remain as a Tier 1 entrepreneur and although this was initially refused, he was subsequently granted further leave to remain until 14 July 2017.

On 6 July 2017, before his leave had expired, he applied for an extension of leave but the application was rejected as invalid by a notice dated 22 January 2018. The reason for the rejection was that the appellant had not paid the Immigration Health Surcharge (“IHS”), one of the fees he was required to pay.

When the appellant lodged his July 2017 application, he also applied for a waiver of fees. There are two fees to pay, an application fee and the IHS, but they may be waived for certain specified reasons.

By a letter dated 18 October 2017, the appellant was told that his fee waiver application had been refused and that the fees had to be paid within ten working days. He paid the application fee within that period but he failed to pay the IHS. He was sent a further letter on 8 November 2017, which he claimed not to have received, giving him yet further ten working days to pay the IHS. This meant that he had until 22 November 2017 to make the payment.

He still failed to pay and was sent a letter dated 22 January 2018 informing him that his application had been rejected as invalid for non-payment of that fee. He did not challenge that decision.

The appellant then made a fresh application on 2 February 2018 for further leave to remain, accompanied by the appropriate fees.

This application was successful and on 5 September 2019 the appellant was given leave to remain until 4 March 2022.

On 28 February 2020 he made an application for Indefinite Leave to Remain (“ILR”) on the basis that he had completed 10 years of continuous lawful residence qualifying him for ILR pursuant to paragraph 276B of the Immigration Rules. He was lawfully in the country when he made his application for ILR on 28 February 2020.

On 11 March 2020 the Secretary of State refused the application on the basis that there was a period when the appellant was not lawfully resident in the country with the consequence that the period of continuous lawful residence had been broken.

The appellant sought leave to bring proceedings for judicial review against that decision. His challenge took him all the way to the Court of Appeal.

The provisions that lay at the heart of the appeal:

From the facts in Afzal, there was a period between 14 July 2017 and 5 September 2019 that the appellant did not have formal leave to remain. One period of leave had ended on 14 July 2017 and there was a gap until further leave was granted on 5 September 2019.

The inter-relationship between the following two main provisions were considered by the Court of Appeal in Afzal to “lie at the heart of this appeal”.

• Section 3C of the Immigration Act 1971:- this provides that in certain stipulated circumstances leave will be extended pending the determination of a fresh application for leave, provided that application was made prior to the previous period of leave coming to an end.
• Paragraph 39E of the Immigration Rules:- this provides that there may be periods when residence without leave(i.e periods of overstaying) must be “disregarded”. Where this rule applies, it will not break the period of continuous lawful residence, however it was considered a matter of dispute whether such periods will actively count as periods of lawful leave when calculating whether the period of ten years has been achieved.

Paragraph 39E provides:

“39E. This paragraph applies where:”

(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or

(2) the application was made:

(a) following the refusal of a previous application for leave which was made in-time; and

(b) within 14 days of:

(i) the refusal of the previous application for leave; or

(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or

(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or

(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing”.

Paragraph 276B of the Immigration Rules states relevantly:

“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.”

Grasping the arguments advanced:

Amongst others, the following arguments were advanced before the Court of Appeal:

• The appellant argued that the period of overstaying from 17 July 2017 to 22 January 2018 fell within the scope of section 3C. It was contended that the period fell within section 3C because the July 2017 application was made before leave had expired and was not determined until the applicant was formally notified that the 2017 application had been rejected as invalid on the 22 January 2018.
• The Secretary of State submitted that this was wrong because there never was a valid application made at all. The application was not refused; it was rejected as being a nullity because of the failure to pay the IHS.
• It was further argued on behalf of the appellant that even if section 3C was not engaged beyond 22 November 2017 (or 14 July 2017 if the Secretary of State’s argument was right) it did not matter because the decision on the first application was made on 22 January 2018 and the second application was made within 14 days of that decision. The whole period of overstay satisfied the requirement of paragraph 39E(b)(i). As such, it was to be disregarded pursuant to paragraph 276B(v).
• The appellant’s argument was noted to rest on the premise that whereas an invalid application does not constitute an application within the meaning of section 3C, nonetheless it was an application within the meaning and scope of paragraph 39E. On this assumption, the analysis in R (Mirza) v Secretary of State for the Home Department [2016] UKSC 63 had no relevance to the proper construction of paragraph 39E of the Immigration Rules. The submission was that an application falls within that provision even if it is a nullity; and a decision on the application is not made until the applicant is notified that it has been rejected, which in this case was on 22 January 2018.
• On behalf of the appellant it was put forward that this was a refusal of the application within the meaning of paragraph 39E. Since the February 2018 application was made within 14 days of that date, paragraph 39E was engaged and ensured that the whole of the book-ended period of overstaying, from the expiry of leave until the decision to vary leave was taken on 5 September 2019, was a period which had to be “disregarded”. Furthermore, in the light of the decision of the court in Hoque v Secretary of State for the Home Department [2020] EWCA Civ 1357 on the meaning of “disregarded”, the whole period of overstaying should count when assessing whether the ten year period of continuous lawful residence was satisfied. On that basis, the obligation to reside for ten years was met and the refusal to grant ILR was unlawful.
• On behalf of the Secretary of State, it was contended that essentially the same analysis should apply to paragraph 39E as the Supreme Court adopted in Mirza in relation to section 3C. Here the application was, or at least became, invalid and therefore was a nullity from that point. Thereafter there was no valid application at all which was capable of attracting the protection of paragraph 39E. It was submitted that the language of paragraph 39E was consistent with this approach; it does not talk about a rejection of an invalid application but the refusal of an application. That suggested that the application had been considered on its merits and refused, rather than not considered at all because the application was invalid.

Preliminary observations of the Court on the relevant provisions and import of Hoque:

Sir Patrick Elias, who gave the leading judgement, made the following observations in relation to Section 3C, Paragraph 39E as well as Paragraph 276B, at paragraph 11 of the judgement:

• A critical part of the analysis in the case involved a construction of the Immigration Rules.
• When applying for ILR, the period of ten years’ residence must be continuous. Continued residence as an overstayer after an immigrant’s specified period of leave has come to an end is not in general a period when the applicant is lawfully in the country. It will therefore break the continuity of lawful residence so that if fresh leave is subsequently given, the period of continuous lawful residence will have to start again. However, this will not be so where these periods of overstaying can be brought within a provision which specifically provides otherwise. In this case that means either a period where leave has been extended pursuant to section 3C or, following the Court of Appeal decision in Hoque v Secretary of State for the Home Department [2020] EWCA Civ 1357; [2020] 4 WLR 154,, where the period has to be “disregarded” because it falls within the scope of paragraph 39E.
• A potential difference between the effect of section 3C and paragraph 39E is this: where section 3C is applicable, it has the effect of extending the period of leave and therefore the applicant remains resident pursuant to leave which necessarily brings him or her within the definition of lawful residence. That period therefore counts towards the assessment of the ten years period of continuous lawful residence. Whether a period falling within paragraph 39E can also count towards the assessment of ten years was an issue in the appeal and turned on the meaning of “disregarded” in paragraph 276B(v).
• The proper construction of section 276B(v) was considered by the Court of Appeal in Hoque. A majority of the court (Underhill and Dingemans LJJ; McCombe LJ dissenting) held, following a careful analysis of the language, structure and history of the provision, that whilst the first sentence of subsection (v) is focused on the time when the decision on the application is made, the second sentence is really misplaced and should be considered as qualifying section 276B(i)(a). It is focusing upon past periods of overstaying which occurred between periods of lawful residence; as the court put it, they were periods of “book-ended overstaying” i.e. periods of overstaying which were book-ended by periods of lawful residence pursuant to leave. These contrast with open-ended periods of overstaying, caught by the first sentence in sub-para.(v), which typically occur when an application for ILR is refused so that there are not two separate and distinct periods of lawful residence pursuant to leave. The effect of reading the provisions in this way is that periods of historic overstaying must be disregarded when assessing whether the ten year period of continuous lawful residence has been satisfied, provided these periods of overstaying meet the conditions specified in para.39E. The observations of the Court to the effect that section 276B(i)(a) is qualified by the second sentence of subsection (v) were strictly obiter, since the Hoque case itself concerned the first sentence of subsection (v).
• What is very much in issue, however, is precisely what is meant by the period of overstaying being “disregarded”. It is common ground that the effect of the disregard is at least that these periods of historic, book-ended overstaying will not break the period of continuous residence so that earlier periods of lawful residence can be taken into account when determining the relevant accumulated period. The court in Hoque went further, however, and held that paragraph 39E periods of overstaying should positively count towards the period of continuous lawful residence. The Secretary of State submits that the court was wrong to do so.
• Both section 3C and paragraph 39E(2) are only engaged where an application (in the case of paragraph 39E(1) the first application) is made before leave has expired. Section 3C says so in terms whereas the language of paragraph 39E is that the first application must be made “in time”, but that has been held to mean before leave has expired. It does not include an application made during the “grace period” of fourteen days: see Secretary of State for the Home Department v Waqar Ali[2021] EWCA Civ 1357. It follows that a second application made after leave has expired but within 14 days of that date will attract the protection of paragraph 39E but it is not itself an application “in time” so as to allow subsequent applications to fall within the scope of the provision. It is not possible, therefore, for an applicant to make successive applications each of which (if made within the grace period) satisfies the conditions of paragraph 39E with the consequence that successive periods of overstaying have to be “disregarded”.
• The purpose of section 3C is clear. An applicant who puts in an application to vary leave before the current period of leave expires should not be treated as unlawfully resident until either that application has been finally determined (including any appeal or review), or, putting it broadly, until opportunities to challenge it have run their course without being pursued. Potential delays in handling an application should not be held against the applicant.
• Where section 3C extends leave, paragraph 39E requires a fresh application to be made within 14 days of the expiry of extended leave; see paragraph 39(2)(b)(ii). If a final determination is made before leave expires, however, section 3C never comes into play and the application must be made within 14 days of the date of the final decision i.e. following appeals or reviews, or until the opportunity to invoke them has run out of time: paragraphs 39E(2)(b)(i),(iii) and (iv).
• An important issue raised in this case is whether paragraph 39E may also be relied upon in situations where the final decision on an initial application made before the expiry of leave is not taken until after the stipulated period of leave has expired, and yet for some reason section 3C cannot be invoked to extend leave.

Validity issues and Section 3C leave: relevance of Supreme Court decision of Mirza

The Court began their consideration by a reference to the relevance of the Supreme Court decision of Mirza:

• It was noted that in Mirza were two appellants, Mr Iqbal and Mr Mirza, who were required to pay a fee in the manner required by the relevant rules but they failed to do so. The third appellant, Ms Ehsan, failed to provide biometric information which was, however, not sought by the Secretary of State until some time after the original application had been made. Unlike the application fee, therefore, it did not have to be submitted with the application.
• The appellants all contended that since they had made an application before their previous leave had expired, section 3C was engaged and had the effect of allowing their leave to continue until the application had been determined, and the determination was only made when they were told that their applications were rejected for non-compliance.
• The Supreme Court held that in the case of the two applicants who had failed to provide their fees, section 3C was never engaged. This was because the effect of the application being invalid was that in law it was no application at all, with the consequence that the requirement in section 3C that there should be an application before the leave expired had not been satisfied. A purported application was not an application within the meaning of the section
• In relation to the position of Ms Ehsan, Lord Carnwath considered that this required a different analysis from the position of the other two appellant. Her application was made in December 2011, but it was not until the following February that she was required to make an appointment. At paragraph 37 of its judgement the Court considered: “It is difficult to see any reason why a failure at that stage should be treated as retrospectively invalidating the application from the outset, and so nullifying the previous extension under section 3C of her leave to remain. There appears to be nothing in section 7 of the 2007 Act to support such retrospective effect. The revised version of regulation 23(2)(b) (which was in force at the time of the March decision to reject her application as invalid) does no more than give the Secretary of State power to “treat” the application as invalid. There might be some question as to how that wording relates to the terms of section 7(2), but as I have said there was no challenge to its validity. In any event there is no reason to read it as having retrospective effect. The natural reading, which is consistent with the statutory purpose, is to give power to invalidate the application as from the time of the decision, but not before…”

The Court of Appeal in Afzal noted the cases in Mirza related to a time where there was no rule – as there is now – providing for a grace period during which a defective application could be remedied. (The relevant provisions are now found in paragraph 34B of the Immigration Rules, which provides essentially the same ten working days period adopted in paragraph 6 of the Immigration (Health Charge) Order) could be remedied

Relevantly, on behalf of the appellant in Afzal, it was argued:

• For applicants who are seeking an exemption from the duty to pay the fees( fee waiver applications), the application was valid when submitted. The duty to pay the fees, like the obligation to provide biometric information, did not arise unless and until the application for relief from the duty to pay had been refused and an obligation to pay had been confirmed. It would be absurd to say that the application is invalid ab initiofor failure to make a fee payment when there was a genuine question whether it was required at all. The fees were only due once the application for an exemption had been determined against the applicant, and even then the applicant had ten working days to make the payment. Just as Ms Ehsan’s leave was held to extend under section 3C until the applicant had been notified that her application had been rejected, so it should be extended in a similar way for the appellant. This meant that the period of leave was properly extended until 22 January 2018 when he was notified of the invalidity.

For the Secretary of State, it was submitted:

• There was in fact a duty to pay the fees with the application and if they were not paid, the position was akin to the non-fee payers in Mirza. The application to be relieved of the duty to pay did not alter that basic requirement. Had the fee been paid it would have retrospectively validated the application, but it was not. There never was a valid application and section 3C was simply not engaged.

There was a valid application to vary leave entitling reliance on Section 3C but its continuing validity was conditional on the appellant paying the relevant fee within the requisite time limit:

In seeking to draw the conclusion that the appellant’s application of July 2017 application was “conditionally valid”, at paragraph 32 and 33 the Court in Afzal considered as follows:

“In my judgment neither of the positions adopted by the parties is correct. I would accept that if the obligation to pay the fee is not in dispute, and it is not paid with the application as it should be, that will invalidate the application ab initio unless the fee is paid within the ten day period of grace which is now built into the process. If it is paid within that period, that will validate the application retrospectively. But in my view section 3C would not extend time until the end of the grace period if the fee were not paid, and it has not been suggested that it would. Given that the duty to pay arises as part of the application, it is not in my view possible to say, as it was with the failure to provide biometric information, that there is a valid application which is only later invalidated by the failure to pay the fee. Rather, in a case where there is no dispute that the fees are to be paid and should be paid with the application, the failure to do so renders it an invalid application which can be retrospectively validated by a later payment within the grace period. But if the opportunity to make a later payment within the specified period is not taken, the application remains invalid; it does not become invalid at that point in time”.

And:

“In my judgment the position is different where the application to vary leave is combined with an application to be relieved of the payment of fees altogether. I do not think it can sensibly be said that the application for leave, when coupled with such a request, is invalid ab initio and only becomes validated if the relief is granted or when the fees are paid. In my view the application is conditionally valid, i.e. it is valid unless and until an obligation to pay the fee is imposed, following a refusal to grant relief, and the fee is not thereafter paid within the specified period of ten working days. At that point the position is akin to that in which the two appellants in Mirza found themselves when they failed to pay the fees in the specified manner. In Mirza the legislation provided that an application without payment of the requisite fee was “not validly made”. Where there is a failure to pay the IHS, reg.6 provides that that the application “must be treated as invalid”. I see no material distinction in the language used. In my judgment the invalidity would naturally be said to arise at the point where the applicant is no longer able to meet the condition which would ensure the continued validity of the application. It would be unjust to invalidate the application retrospectively, just as Lord Carnwath thought it was with respect to Ms Ehsan. It would have the unsatisfactory consequence that an applicant whose presence was lawful when the application was made might retrospectively be held to have been unlawfully present in the UK at that time. I would not so construe the rules unless compelled to do so”.

The Court held:

“38.For these reasons, I consider that there was a valid application to vary leave, albeit that its continuing validity was conditional on the applicant paying the relevant fees if it should be determined that the appellant was bound to pay them. That would entitle the appellant to rely upon section 3C until the point where the application ceased to be valid. That was when the ten working days had expired after the fee had been requested on 8 November. The relevant date was, therefore, 22 November 2017”.

Paragraph 39E(b)(ii) disregard not applicable as February 2018 application not made within 14days of the rejection of his first application.

As noted above, the appellant had been sent a second letter on 8 November 2017, giving him  further ten working days to pay the Immigration Health Surcharge. He had until 22 November 2017 to make the payment.

In order to rely on  the Paragraph 39E(b)(ii) disregard, the appellant had to show  his  application of February 2018 was made following the refusal of a previous application for leave which was made in-time and within 14 days the expiry of leave extended by section 3C of the Immigration Act 1971 ( ie by of 22 November 2017).

In deciding that the Paragraph 39E(b)(ii) disregard could not be relied upon, the Court  concluded:

“39.The February 2018 application was therefore not made within fourteen days of section 3C extended leave expiring. It follows that the appellant could not rely upon para.39E(b)(ii) in so far as he was seeking to contend that that second application was lodged within 14 days of the expiry of the section 3C period of extended leave. The question is whether the appellant could bring himself within para.39E(2)(b)(i), as he contends”.

The word “application”  includes an invalid application and concept of “refusal”  includes the rejection of an invalid application: February 2018 application fell within the scope of paragraph 39E(2)(b)(i)

In order to satisfy 39E(2)(b)(i), the appellant had to show his application was made following the refusal of a previous application for leave which was made in-time and within 14 days of the refusal of the previous application for leave.

Applying the reasoning below, construing the word “application” so as to include invalid applications, and interpreting the concept of “refusal” as including the rejection of an invalid application,  the Court concluded that the period of 14 days for the purposes of paragraph 39E ran from the date when the appellant was notified that his application had been rejected as invalid, ie on 22 January 2018.

The Court noted that amongst other documents, the Long Residence Policy Guidance expressly stated that the period of overstaying would be calculated from the latest of the following: the expiry of leave, or the expiry of extended leave, or “the point at which the migrant is deemed to have received a written notice of invalidity….in relation to an in-time application for further leave to remain”.

The Court ‘s conclusions at paragraphs 50 to 51 were:

“In my judgment, therefore, although the language in para.39E is potentially ambiguous, any ambiguity utterly dissolves in the light of the obvious purpose of the paragraph and the statements of policy relating to it. I have no doubt that construing the word “application” so as to include invalid applications, and interpreting the concept of “refusal” as including the rejection of an invalid application, reflects the intention of the Secretary of State in adopting the paragraph”.

And:

“Accordingly, in my view the period of 14 days for the purposes of para.39E ran from the date when the appellant was notified that his application had been rejected as invalid, as the Long Residence Policy Guidance indicates. That was on 22 January 2018. It follows that the February 2018 application fell within the scope of para.39E(2)(b)(i). Following Hoque, the whole of the book-ended period of overstaying between 17 July 2017 and 5 September 2019 must be disregarded when calculating whether there is the ten year requisite period of continuous lawful residence. This means that the period of overstaying did not break the continuity and require the period of lawful residence to be started again from scratch. The remaining question, to which I now turn, is whether the period or periods of overstaying can count as part of the ten year period. The period in question in this case is, in my view, from 22 November 2017 when the period of extended leave expired, until 5 September 2019 when fresh leave was granted. But if the period does count, it would not matter if it ran from the 14 July, as the Secretary of State submits”.

Refusal to follow Hoque: disregarded periods of overstaying do not count towards the ten year requirement

From paragraph 52 of its judgement, the Court made the following observations:

• It is important to keep in mind the two definitions (in so far as they are material to this appeal) in paragraph 276A: “continuous residence means residence in the UK for an unbroken period”; and “lawful residence means residence which is continuous residence pursuant to existing leave to enter or remain”.
• Paragraph 276B(v) provides that where the conditions of paragraph 39E are met, the period of overstaying is to be “disregarded”. Following Hoque, this means that it is to be disregarded in the two contexts: first, where there is an open-ended period of overstaying because no subsequent leave is granted; and second, where there is a book-ended period of overstaying, because it occurs between two periods of leave.
• The natural meaning of a period being “disregarded” is simply that one should not to have regard to it; it should be ignored. It is important to note that in paragraph 276B(v) it is not the fact of overstaying which is to be ignored when paragraph 39E is engaged; rather, it is the period of overstaying. That is so with respect to both open-ended and book-ended periods of overstaying.

In observing that the case of Waqar Ali made no reference to Hoque, the following was stated:

• Waqar Ali was decided after Hoque  although there is no reference to any of the discussion in Hoque; it seems that the case may not have been referred to the court.
• In Waqar Ali the question was whether an application lodged within the paragraph 39E period of overstaying could be said to be “in time”. The court held that it could not because this meant before leave or extended leave had expired. In that context Simler LJ held that an application made within the 14 day grace period conferred by paragraph 39E was not made within a period of lawful residence (para.36): “On expiry of leave to remain, a person’s residence in the UK becomes unlawful. The fact that such a person is permitted to make an application for leave to remain within a limited period of overstaying does not alter their residence status during that period or render it lawful. It simply means that the SSHD will not refuse such an application on the ground that the person is in the UK in breach of the immigration laws.”

The Court in Afzal considered that this as wholly inconsistent with the notion that the period of overstaying can, in the context of an open-ended period of overstaying at least, count as a period of lawful residence.

In relation to Hoque’s treatment of open-ended period of overstaying and book-ended periods, a further summary was provided:

• the court in Hoque considered the meaning of “disregarded” in the context of an open-ended paragraph 39E period of overstaying. Underhill LJ, as a matter of construction, held that the open-ended period of overstaying did not, unlike the book-ended periods, qualify in any way the calculation of ten years continuous lawful residence in paragraph 276B(i)(a). Rather it allowed an application to be considered which would otherwise be rejected on the grounds that the applicant was in breach of the immigration rules as an overstayer, even where the applicant had accumulated ten years continuous lawful residence in the past. Underhill LJ said in terms (para.49) that there was “no room for ambiguity” about the meaning of the first sentence in para.276B(v) and that “on no possible reading can it be construed as qualifying the definition of continuous lawful residence”. This was critical on the facts of that case.
• the applicants in Hoque made an application out of time but satisfying the conditions of paragraph They did not have ten years continuous residence when the application was made, but they would have had by the time the application was refused if the paragraph 39E period of overstay could count towards the ten years. They would then have been entitled to ILR (subject to satisfying the other conditions in paragraph 276B).

In refusing to follow Hoque, the Court in Afzal reasoned:

“66.I do not disagree that it would not have been irrational for the Secretary of State to have allowed the gaps in book-ended periods of overstaying to count. But nor is it irrational for the Secretary of State to take the view that they should not count and that it would not be appropriate to allow periods of overstaying in breach of the immigration rules to be treated for all purposes as if they were periods of lawful residence with the same status as section 3C periods. Underhill LJ appears to have made an assumption that the only way in which the second sentence of para.276B(v) could qualify the concept of continuous lawful residence was by permitting the period of overstaying to count. He does not appear to have considered the alternative possibility that the intended impact on the calculation of ten years’ residence is simply to preclude para.39E periods of overstaying from breaking continuity which, but for para.39E, they would do.

67.The approach of the majority is inconsistent with each of the three preliminary observations which I suggested above should guide the construction of these provisions. First, it significantly distorts the natural meaning of a period being “disregarded” to allow it to count; far from disregarding it, this involves positively having regard to the period of overstaying and treating it for all the world as if it were a period of lawful residence.

68.Second, as Underhill LJ recognised, it is giving the concept of “disregarded” in the context of book-ended periods of overstaying a wholly different meaning from that adopted with respect to open-ended periods of overstaying. If this were a necessary implication, that would be justified. But in my view it is not: the concept of disregard can be given the same meaning in both cases, namely that the period of overstaying is ignored. The significance of this in an open-ended period of overstaying is that the applicant is not to be treated as being resident in breach of the immigration laws. The significance of it in the case of book-ended periods is different because of the focus on past rather than present periods of overstaying; its effect is that when calculating whether there is a continuous period of ten years, a gap resulting from a para.39E period of overstaying will not break continuity. In both cases the period of overstaying is being ignored, but the implications are different in the two situations. This approach, giving the concept of disregard its natural meaning, still allows for a purpose in linking sub-paras. (i)(a) and (v) but it also means that there is no justification for treating the period of overstaying as counting towards the period of continuous residence.

69.Third, this approach re-writes the meaning of lawful residence to include periods not granted pursuant to leave in circumstances where in my view the extension of the definition is not a necessary implication arising out of the linking of the two provisions, as Underhill LJ seemed to assume.

70.We are not bound by the view of the court in Hoque on this point, and for the reasons I have given, I would respectfully not follow it. Whilst I accept that para.39E periods of overstaying do impact upon the question of continuous lawful residence, as the majority in Hoque thought, they do so because they ensure that such periods do not break continuity of residence. But for this provision, continuity would be broken. But it is not expressly stated that they should actively count towards the period of lawful residence, and in my view this is not a necessary implication. The concept of “disregard” in para.276B can be given a perfectly cogent meaning which in my view accords with its natural meaning and does not require the term being deemed to have two different meanings in the same paragraph.

Upper Tribunal decision of Muneeb Asif which followed Hoque was wrong to do so:

The Court noted the appellant’s reliance upon Muneeb Asif, Asif (Paragraph 276B, disregard, previous overstaying) Pakistan [2021] UKUT 96 (IAC), where UT Judge Blum, agreed with the analysis of the majority in Hoque and therefore concluded that the book-ended period of overstaying counted towards the ten year period.

In addition to the authorities, UT Judge Blum also put weight on the version of the Long Residence Guidance published in October 2019 in support of his conclusion that paragraph 39E periods of overstaying count.  He construed the guidance as showing that the Secretary of State was in practice treating paragraph 39E book-ended periods as periods which should count towards calculating the ten year period. He held that in so far as paragraph 276B was ambiguous about the impact of paragraph 39E periods of overstaying, the practice could properly be taken into account to favour a construction which was more favourable to the applicant, following the principle in  Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568;[2013] PTSR D4,  paragraphs 42 to 43 where the justification for the principle, and its limits, are explained.

In summary, the Court’s approach in Afzal included the following:

• It was not accepted that, when properly analysed, there is any genuine ambiguity as to the proper construction of paragraph 276B when read with paragraph 39E. It was not legitimate to have regard to the guidance when construing the Immigration Rules.
• Even if the Court was wrong about that, and there is genuine ambiguity, the Court was not persuaded that the guidance itself does supports the proposition that paragraph 39E periods of overstaying should be treated as counting towards the period of long residence.
• The Court was conscious that if the paragraph 39E period of overstaying cannot count as lawful residence then it may be that it attracts all the disadvantages highlighted by Lord Wilson in Pathan v Secretary of State for the Home Department[2020] UKSC 41; [2020] 1 WLR 4506 ( set out in Paragraph 11 of Afzal). That is undoubtedly the case, however, for open-ended periods of overstaying, and in practice it is much less likely that past periods will be of interest to the authorities. However unsatisfactory it may be for this to be the effect of the construction the Court had adopted, the alternative was not a legitimate construction.

In dismissing the appellant’s application for judicial review, the Court concluded at paragraphs 83 and 87:

“For these reasons, therefore, I do not consider that it can be said that the appellant had achieved ten years lawful residence by the date of the Secretary of State’s refusal, even though he will have done so by now or in the very near future. It follows that I would dismiss the application for judicial review”.

And

“For the above reasons, I would grant leave to challenge the decision by way of judicial review but would dismiss the application on the single ground that the appellant had not, by the date of the decision, completed ten years’ continuous lawful residence. There was a gap between 22 November 2017 and 5 September 2019 which, whilst it did not break the period of lawful residence, could not in my view count towards the calculation of the requisite ten years continuous lawful residence. In fact the appellant will have built up that period by now and therefore he is not personally likely to be adversely affected by this decision. But that is not a matter for this court”.

Conclusion:

Whatever the ramifications of Afzal, pending ultimate resolution of the issues in the Supreme Court, clearly yet more litigation/legal challenges will ensue. Afzal does not settle matters after Hoque: rather the recent Court of Appeal decision muddies the waters to some extent( rightly or wrongly) raising quite a few issues in relation to which it is expected the Upper Tribunal will in a separate appeal case seek to grapple with so as to give an interpretation of what they consider is the true effect of Afzal.

The immediate position for now however may seem clear enough: the recent case of Muneeb, Asif (Paragraph 276B, disregard, previous overstaying) Pakistan [2021] UKUT 96 (IAC) in which the Upper Tribunal agreed with the analysis of the majority in Hoque and concluded that the book-ended period of overstaying counted towards the ten year period, seems no longer capable of reliance after Afzal.