Ahmed, R (on the application of) v The Secretary of State for the Home Department

The requirements in paragraph 276B of the Immigration Rules are separate and freestanding. Paragraph 276B(v), read with paragraph 39E, may disregard specified periods of overstaying when assessing breach of immigration laws. It does not make those periods lawful or remove them from the separate calculation of 10 years’ continuous lawful residence under paragraph 276B(i)(a). Paragraph 276A(b) requires unbroken lawful residence and contains no equivalent deeming provision to paragraph 276A(a). Where the Rules intend overstaying to be disregarded in calculating lawful residence, they do so expressly. Guidance cannot alter the objective construction of the Rules from their language.

Masum Ahmed, a Bangladeshi national, challenged the refusal and certification of his application for indefinite leave to remain under paragraph 276B of the Immigration Rules. He relied on 10 years’ continuous lawful residence, despite short periods between grants of leave when applications had been made out of time.

Upper Tribunal Judge Gleeson refused permission to apply for judicial review on 27 September 2018 and certified the claim as totally without merit. The applicant sought permission to appeal, arguing that paragraph 276B(v), together with paragraph 39E, required the short gaps to be disregarded. The central issue was whether that mechanism could cure gaps in the separate requirement for 10 years’ continuous lawful residence under paragraph 276B(i)(a).

1. Permission refused. The application had no real prospect of success. The Court directed that its judgment be published and cited despite being a decision on permission to appeal.
2. Paragraph 276B(i)–(v) contains separate, freestanding requirements. Each must be satisfied before an applicant can qualify for indefinite leave to remain on long residence grounds. Paragraph 276C confirms that the Secretary of State must be satisfied that every requirement in paragraph 276B is met.
3. Paragraph 276B(v), read with paragraph 39E, operates as a self-contained provision concerning breach of immigration laws. Where paragraph 39E applies, specified current and previous periods of overstaying may be disregarded, subject to the Secretary of State’s residual discretion. That treatment does not convert overstaying into lawful residence and does not remove it from the assessment under paragraph 276B(i)(a).
4. Paragraph 276A(a) defines continuous residence and expressly provides that certain absences do not break it. Paragraph 276A(b), by contrast, requires lawful residence to be continuous residence pursuant to qualifying leave, temporary admission, immigration bail or exemption from immigration control. It contains no equivalent deeming provision for otherwise non-continuous lawful residence.
5. The contrast with Part 6A and paragraph 245AAA(a)(iv) is significant. Those provisions expressly state that certain continuous periods of lawful residence remain unbroken despite overstaying. The differing drafting should not be treated as accidental under ordinary construction and the presumption of rational legislation.
6. The Court agreed with Sweeney J’s decision and reasoning in R (on the application of Ahmed) v Secretary of State for the Home Department (para 276B – ten years lawful residence) [2019] UKUT 00010 (IAC). It also applied the principle in Mahad (Ethiopia) v Entry Clearance Officer [2010] 1 WLR 48 that the meaning of the Rules is determined objectively from their language, rather than from guidance. The Secretary of State’s Long Residence Guidance could not alter the true construction of paragraph 276B.

• Court of Appeal (Civil Division): On 21 June 2019, refused permission to appeal and directed publication and citation of the judgment: [2019] EWCA Civ 1070.
• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Gleeson refused permission to apply for judicial review on 27 September 2018 and certified the claim as totally without merit.
• Secretary of State for the Home Department: Refused and certified the applicant’s paragraph 276B application for indefinite leave to remain on 26 April 2018.