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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MBOMSON AGAINST THE SECRETARY OF STATE FOR THE HOME DEPARTMENT [2019] ScotCS CSOH_81 (24 October 2019)
URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSOH_81.html
Cite as: [2019] ScotCS CSOH_81, 2019 GWD 35-563, [2019] CSOH 81, 2020 SLT 12
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P313/19
OUTER HOUSE, COURT OF SESSION
[2019] CSOH 81
OPINION OF LORD MALCOLM
In the petition of
IFEOMA GRACE MBOMSON
Petitioner
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
for judicial review of a decision dated 7 January 2019
Petitioner: Winter; Drummond Miller LLP
Respondent: Pirie; Office of the Advocate General
24 October 2019
[1] This petition seeks judicial review of a decision of the Secretary of State for the Home
Department (the respondent) rejecting the petitioner’s application for indefinite leave to
remain in the United Kingdom. It raises an issue recently decided by the Court of Appeal -
judgment is not binding upon this court and I was asked not to follow it. Parties are agreed
that if I accept the invitation the decision complained of should be reduced. On the other
hand, if the approach of the Court of Appeal is adopted, the petition must be refused.
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2
[2] The matter turns on the proper interpretation of paragraphs 276B(i)(a), 276B(v)
and 39E of the Immigration Rules. In summary paragraph 39E allows overstayers to make
an application out of time so long as it is made within 14 days of the expiry of an existing
leave to remain. (Until recently the period was 28 days.) Paragraph 276B sets out the
requirements for a grant of indefinite leave to remain on the ground of long residence in the
UK. One of the requirements (paragraph 276B(i)(a)) is that the applicant must have had at
least 10 years continuous lawful residence in the UK. Another (paragraph 276B(v)) is that
the applicant must not be in the UK in breach of immigration rules, except that, where
paragraph 39E applies, any current period of overstaying will be disregarded, as will any
previous period of overstaying, all so long as the application is (or was) made within the
allowed period of grace.
[3] The petitioner submits that the effect of these provisions is that, for the purpose of
deciding whether an applicant has demonstrated at least 10 years continuous lawful
residence in the UK, any period of overstaying is counted towards lawful residence so long
as the period allowed by paragraph 39E has not been exceeded. It was said that this follows
from the reference in paragraph 276B(v) to such periods being “disregarded”. The
petitioner’s circumstances are such that it is only if this proposition is correct that she can
demonstrate at least 10 years unbroken lawful residence in the UK.
[4] The submission for the respondent is that any gaps in lawful residence arising from
applications being made by an overstayer must be taken into account when deciding
whether the 10 years continuous lawful residence requirement is met. The disregard
expressed in paragraph 276B(v) applies only in respect of the requirement that the applicant
must not be in breach of immigration laws. It has no relevance to the separate requirement
set out in 276B(i)(a).
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3
[5] The Court of Appeal described the issue as follows: does paragraph 276B(v) operate
to cure short “gaps” between periods of lawful residence so as to entitle an applicant to
claim 10 years lawful continuous residence under paragraph 276B(i)(a)? For the reasons set
out in paragraph 15 of its judgment, the court said no. The provisions in 276B(i)-(v) are
separate, freestanding provisions, each of which must be met. Sub-paragraph (v) was not
drafted as an exception to sub-paragraph (i)(a). It has a self-contained meaning. So long as
paragraph 39E is in play, it simply allows any current or earlier period of overstaying to be
overlooked in respect of satisfying the requirement not to be in breach of immigration laws.
“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).”
The court narrated further reasons in support of its decision - see paragraphs 15(5)-(8).
[6] While I have had regard to the submissions made on behalf of the petitioner to the
effect that the Court of Appeal erred, I am nonetheless in full agreement with its decision
and reasoning. Paragraph 39E has no relevance to or impact upon the operation of
paragraph 276B(i)(a). It follows that the petition is refused.