ON APPEAL FROM
UPPER TRIBUNAL (IMMIGRATION & ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE GLEESON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HADDON-CAVE
| THE QUEEN ON THE APPLICATION OF
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Thomas Tabori (instructed by Government Legal Department) for the Respondent
Hearing date : 13th June 2019
Crown Copyright ©
LORD JUSTICE FLOYD AND LORD JUSTICE HADDON-CAVE:
The Immigration Rules
Long residence in the United Kingdom
276A. For the purposes of paragraphs 276B to 276D and 276ADE(1).
(a) "continuous residence" means residence in the United Kingdom for an unbroken period, and for these purposes a period shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time, provided that the applicant in question has existing limited leave to enter or remain upon their departure and return …
(b) "lawful residence" means residence which is continuous residence pursuant to:
(i) existing leave to enter or remain; or
(ii) temporary admission within section 11 of the 1971 Act (as previously in force), or immigration bail within section 11 of the 1971 Act, where leave to enter or remain is subsequently granted; or
(iii) an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain.
(c) 'lived continuously' and 'living continuously' mean 'continuous residence', except that paragraph 276A(a)(iv) shall not apply.
Requirements for an extension of stay on the ground of long residence in the United Kingdom
276A1. The requirement to be met by a person seeking an extension of stay on the ground of long residence in the United Kingdom is that the applicant meets each of the requirements in paragraph 276B(i)-(ii) and (v).
Requirements for indefinite leave to remain on the ground of long residence in the United Kingdom
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.
Indefinite leave to remain on the ground of long residence in the United Kingdom
276C. Indefinite leave to remain on the ground of long residence in the United Kingdom may be granted provided that the Secretary of State is satisfied that each of the requirements of paragraph 276B is met.
Refusal of indefinite leave to remain on the ground of long residence in the United Kingdom
276D. Indefinite leave to remain on the ground of long residence in the United Kingdom is to be refused if the Secretary of State is not satisfied that each of the requirements of paragraph 276B is met."
"Exceptions for overstayers
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."
(1) First, the provisions of paragraph 276B(i)-(v) are separate, freestanding provisions each of which has to be met in order to for an applicant to be entitled claim "10 years continuous lawful residence" under paragraph 276B (see paragraph 276C).
(2) Second, sub-paragraph (v) is not drafted as an exception to sub-paragraph (i)(a) and makes no reference to it. There are no words which cross-refer or link sub-paragraph (v) to sub-paragraph (i)(a), or vice-versa, whether expressly or inferentially.
(3) Third, there is no difficulty in giving sub-paragraph (v) a self-contained meaning. It makes use of the provisions of paragraph 39E of the Rules. Paragraph 39E is the 'exceptions for overstayers provision' which, in effect, grants a 14-day period of 'grace' in respect of the lodging of LTR applications in certain circumstances. Under sub-paragraph (v), where paragraph 39E applies, any current period of overstaying as well as any previous period of overstaying after the advent of the amendment to the rules on 24th November 2016 will be "disregarded". In addition, periods of overstaying of less than 28 days before that date are also disregarded. The reference to previous periods means that, in requiring that the applicant should not "be in the United Kingdom in breach of immigration laws", the sub-paragraph is not looking simply at the applicant's status at the date of the application, but also looks back in time to his previous immigration status. Mr Sarker confirmed that the sub-paragraph referred to all previous periods of overstaying. This is, of course, subject to the SSHD's residual discretion.
(4) The critical point is that the disregarding of current or previous short periods of overstaying for the purposes of sub-paragraph (v) does not convert such periods into periods of lawful LTR; still less are such periods to be "disregarded" when it comes to considering whether an applicant has fulfilled the separate requirement of establishing "10 years continuous lawful residence" under sub-paragraph (i)(a).
(5) Fourth, there is a marked contrast in the drafting of the definitions of "continuous residence" and "lawful residence" in paragraph 276A sub-paragraphs (a) and (b) respectively. In respect of continuous residence, in addition to defining it as an unbroken period, the sub-paragraph goes 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, is simply required to be continuous residence (i.e. unbroken) pursuant to certain types of leave, temporary admission, immigration bail or exemption from immigration control. Unlike sub-paragraph (a), in sub-paragraph (b) there is no corresponding provision which allows residence which is not continuously lawful to be deemed unbroken. It is here that one would expect to find the saving which the Applicant incorrectly contends is created by paragraph 276B(v), and one does not. We consider that to be a clear indication that the lawfulness of continuous residence must be unbroken.
(6) Fifth, by contrast, there are examples elsewhere in the Rules expressly providing that "continuous periods" of lawful residence in the UK shall be considered "unbroken", notwithstanding periods of overstaying, where paragraph 39E applies. There are to be found in specific areas where such an exception was clearly intended, e.g. Appendix ECAA relating to ECAA Nationals and settlement and e.g. Part 6A of the Rules in relation to the Points Based System. Part 6A provides as follows (emphasis added):"Part 6APoints-based system245AAA. General requirements for indefinite leave to remainThe following rules apply to all requirements for indefinite leave to remain in Part 6A and Appendix A:(a) References to a "continuous period" "lawfully in the UK" means, subject to paragraph (e), residence in the UK for an unbroken period with valid leave, and for these purposes a period shall be considered unbroken where:…(iv) the applicant has any previous period of overstaying between periods of leave disregarded where: the further application was made before 24 November 2016 and within 28 days of the expiry of leave; or the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied. …" (emphasis added)
(7) Sixth, applying ordinary rules of statutory construction and the presumption of ideal, rational legislation, these differences in drafting should not be read as accidental or unintended (c.f. Bennion on Statutory Construction, section 9.3).
(8) If and insofar as reliance is placed on the SSHD's "Long Residence" Guidance (Version 15.0) published on 3rd April 2017, this does not avail the Appellant. We note that "Example 1" and "Example 2" on page 16 of the Guidance say that "gaps in lawful residence" can be disregarded because "the rules allow for a period of overstaying of 28 days or less when that period ends before 24 November 2016". This does not accord with the true construction of paragraph 276B as set out above, although it may reflect a policy adopted by the SSHD. However, it is axiomatic that the intention of the Rules is to be discerned "objectively from the language used" not from e.g. guidance documents (per Lord Brown in Mahad (Ethiopia) v. Entry Clearance Officer  1 WLR 48 (2009) at paragraph 10). The SSHD may wish to look again at the Guidance to ensure that it does not go any further than a statement of policy.