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TOTON MIAH AGAINST THE SECRETARY OF STATE FOR THE HOME DEPARTMENT [2021] ScotCS CSOH_84 (17 August 2021)
URL: http://www.bailii.org/scot/cases/ScotCS/2021/2021_CSOH_84.html
Cite as:
[2021] ScotCS CSOH_84,
[2021] CSOH 84,
2021 GWD 26-356,
2021 SLT 1147
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OUTER HOUSE, COURT OF SESSION
[2021] CSOH 84
P251/21
OPINION OF LORD ERICHT
In the cause
TOTON MIAH
Petitioner
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Petitioner: K Forrest; Drummond Miller LLP
Respondent: C Smith; Office of the Advocate General
17 August 2021
Introduction
[1]
The petitioner submitted an application for leave to remain which was submitted
before, but not decided by the respondent until after, the date at which the petitioner
achieved 10 years' continuous residence in the United Kingdom. The respondent refused
the application on the basis that it did not have the effect of extending the petitioner 's lawful
continuous residence. The petitioner brought judicial review proceedings seeking to reduce
the decision on the ground of error of law. The issue was whether or not the petitioner's 10
year continuous residence was "lawful" within the meaning of Paragraph 276B(i)(a) of the
Immigration Rules. That issue depended on whether the time spent by the petitioner in the
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UK as an overstayer while awaiting the respondent's decision on the application counted as
being "lawful" because of the disregards under Paragraph 276B(v), which in turn depended
on whether the overstaying was "current" or "previous".
Provisions of the Immigration Rules
[2]
Paragraph 276B of the Immigration Rules is as follows:
"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...
(b)
the further application was made on or after 24 November
2016 and paragraph 39E of these Rules applied."
[3]
Paragraph 39E provides:
"Exceptions for overstayers
39E.
This paragraph applies where: ... (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;"
Petitioner's immigration history
[4]
The petitioner entered the United Kingdom with a valid student visa on 27 October
2009. Various extensions were granted up until 13 January 2017. On 11 January 2017 the
petitioner submitted an in-time asylum claim which was refused on 30 June 2017. On
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11 July 2017 the petitioner lodged an in-time appeal which was dismissed on 20 January
2018. Application for permission to appeal to the First-tier Tribunal was refused on
28 February 2018 and to the Upper-tier Tribunal on 23 August 2018 and on 21 September
2018 the petitioner became appeal rights exhausted. Thereafter on 27 September 2018 the
petitioner applied for leave to remain on human rights grounds (the "2018 Application").
The 2018 Application was made within the 14 day period permitted under Paragraph 39E.
The petitioner varied the 2018 Application on 29 January 2019 when he submitted an
application for indefinite leave to remain outside the immigration rules. The respondent did
not make a decision on the application prior to the achievement by the petitioner of 10 years'
continuous residence in October 2019. Accordingly on 5 March 2020, the petitioner varied
his application so as to seek indefinite leave to remain on the basis of 10 years' continuous
lawful residence. On 30 December 2020 the respondent refused the application.
Decision letter of 30 December 2020
[5]
By letter of 30 December 2020, the respondent intimated to the petitioner that his
application had been unsuccessful and set out the following reasons:
"Careful consideration has been given to your application and in doing so it is
acknowledged as detailed in your immigration history above that you entered the
United Kingdom on 27 October 2009 with leave to enter as a tier 4 (General) student.
It is accepted that following your first arrival you then held continuous lawful leave
in the United Kingdom until 21 September 2018 when your appeal rights became
exhausted following the dismissal of your appeal against the asylum refusal decision
of 30 June 2017.
It is therefore considered that on this date your lawful leave to remain in the
United Kingdom which had continued under section 3C of the Immigration Act 1971
expired. It is considered that at this point you had completed a continuous and
lawful period of residence of approximately eight years and eleven months in the
UK.
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Whilst it is noted that you submitted an application for leave to remain in the
United Kingdom on 27 September 2018 which was within the 14 day period allowed
under Paragraph 39E and subsequently varied this application on further occasions
to this current application, it is considered that these applications did not have the
effect of extending your lawful continuous residence.
In coming to this conclusion it is noted that under section 3C of the Immigration
Act 1971, leave is statutorily extended where a person had leave wh en they made an
application or claim and that leave expired prior to the Secretary of State making a
decision on the application or claim. Leave is extended until any appeal against
refusal is finally determined.
Given the above it is therefore considered that your lawful continuous leave under
Section 3C ceased when you became appeal rights exhausted and was not
resurrected by the submission of your application of 27 September 2018. As such
your period of continuous lawful residence expired on 21 September 2018 and you
therefore cannot demonstrate ten years continuous lawful residence. It is concluded
that you have failed to demonstrate that you can satisfy the requirements of
Paragraph 276B(i)(a) of the Immigration Rules and as such your application falls for
refusal.
For the reasons outlined above, your application for indefinite leave to remain on the
grounds of long residence is refused as you have failed to meet the requirements of
the Immigration Rules under Paragraph 276D with reference to Paragraph 276B(i)(a)
of HC395 (as amended)."
Submissions for the petitioner
[6]
Counsel accepted that the law was as set out in the case of Hoque and others v The
Paragraph 276B(v) previous overstaying would count towards lawful residence but current
overstaying would not. He submitted that the respondent had erred in law in that she had
wrongly characterised the period from 21 September 2018 to 30 December 2020 as one of
current and not previous overstaying. The correct characterisation was that it was a period
of previous overstaying, in which case it counted as lawful residence.
[7]
Counsel submitted that this was in accordance with the natural meaning of the
words "current" and "previous". "Current" overstaying may mean that the applicant is an
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overstayer at the time of the decision, but the difficulty with that interpretation was it took
no account of whether an applicant had accrued 10 years' residence. If 10 years' residence
had been accrued, the overstaying could be said to be previous since it pre-dated a decision
by the Secretary of State. The natural meaning of "previous" overstaying was overstaying
that had occurred before the relevant decision.
[8]
Counsel submitted that the danger of abuse by the making of "serial" applications
which concerned the court in Hoque did not apply here as there could be only one
application under Paragraph 39E(2)(a).
[9]
He further submitted that if the respondent reached a decision on an application
before 10 years' continuous residence was achieved, it could not be said that the overstaying
was current but if the respondent took so long to determine the application that the 10 years
had elapsed, then the overstaying must be said to be previous and falls to be disregarded.
Accordingly, the petitioner had acquired 10 years continuous lawful residence.
[10]
Submissions for the respondent
[11]
Counsel for the respondent submitted that in order for the petitioner to succeed in
his argument the court would require to depart from the interpretation of the Immigration
Rules as set out in Hoque. The foundation of Paragraph 276B(v) is that it is lawful periods of
leave that are being joined up. Had the petitioner's applications been successful, the
petitioner would have been able to rely on that success to demonstrate that whilst his
application was being considered he was lawfully in the UK: he would have been lawfully
resident on the basis of the compassionate reasons and human rights grounds that allowed
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his applications to be successful. This lawful residence could have then been joined up with
his prior residency to get to the 10 years as the short gap of less than 2 weeks in
September 2018 could be disregarded under Paragraph 39E. If the petitioner's interpretation
of Hoque was correct, then a claimant could simply keep an application or a series of
applications live until they got over the line of 10 years: the fact that the applications that
kept that clock ticking were unmeritorious did not matter on the petitioner's argument. The
petitioner's argument was a version of the "placemaker" applications identified in Hoque at
paras [50] and [103].
Analysis and decision
[12]
The nub of the issue in this case is whether the petitioner's overstaying from
21 September 2021 was, in terms of Paragraph 276B(v), a "current" period of overstaying or
a "previous" period of overstaying. The significance of the difference is that, applying the
decision in Hoque, a "current period of overstaying" does not count towards 10 years
continuous lawful residence, but a "previous period of overstaying" does (Hoque
para [42], [52]). I see no reason to depart from the reasoning of the majority in Hoque and
indeed counsel for the petitioner did not invite me to do so.
[13]
In order for this petition to succeed, I would require to be persuaded by the
petitioner that this is a case involving a "previous" period of overstaying. I am not so
persuaded, for the following reasons.
[14]
Firstly the position of the petitioner in this case cannot be distinguished from that of
Mr Hoque. Both Mr Hoque and the petitioner achieved their 10 years' residence while
awaiting a decision of the Secretary of State. It was held in Hoque that Mr Hoque was a
current overstayer and his case did not involve a "previous period of overstaying between
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two periods of leave" (para [43]-[44]) and therefore the 10 years' residence was not lawful.
As the petitioner is in exactly the same factual position as Mr Hoque, the petitioner too is a
current overstayer and the same result should apply to him.
[15]
Secondly, on the plain wording of Paragraph 276B(v) the disregard for "previous
period of overstaying" cannot apply to someone in the position of the petitioner. The
disregard applies to "any previous period of overstaying between periods of
leave."(emphasis added). The period of overstaying which the petitioner seeks to count
towards 10 years' lawful residence is not a period of overstaying between periods of leave.
The petitioner's overstaying starts at the end of a period of leave, but does not cease at the
start of a further period of leave. Accordingly it cannot be a period "between" periods of
leave.
[16]
Accordingly I find that the respondent did not err in law in finding that the period of
overstaying was a current one and that the petitioner could not demonstrate 10 years' lawful
residence.
[17]
I am fortified in my decision by a consideration of the danger of abuse which is
discussed in Hoque at paras [50] and [103]. In para [50] Underhill LJ warns that there is a
danger of abuse:
"since an applicant could in principle make a wholly unfounded application as he or
she approached the end of the 10 year period and count on the time taken to
determine it (perhaps prolonged by variation) in order to get to the point where an
application under paragraph 276B could be made. The facts of the present cases
illustrate how that could be done."
These comments are equally applicable to the facts of the petitioner's case. The petitioner's
argument that the application could be made only once is miscon ceived: the abuse referred
to in Hoque could occur on that one application, particularly if that one application was
prolonged by variation.
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Order
[18]
I shall uphold the respondent's fourth plea in law, repel the petitioner's plea in law,
and dismiss the petition. I reserve all questions of expenses in the meantime.
