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

For indefinite leave to remain on the ground of long residence, an applicant must satisfy each separate requirement in paragraph 276B of the Immigration Rules. The requirement of ten years’ continuous lawful residence in paragraph 276B(i)(a) cannot be met by treating an applicant as having leave during a period of overstaying.

Paragraph 276B(v) is a freestanding additional requirement. Its limited disregard of specified periods of overstaying does not convert those periods into lawful residence or cure a failure to establish ten years’ lawful residence. A human-rights claim is clearly unfounded where, applying anxious scrutiny, it has no prospect of success on any legitimate view of the facts or law.

The applicant, a Bangladeshi national, sought judicial review of the Secretary of State’s refusal of his application for indefinite leave to remain based on ten years’ residence. The Secretary of State concluded that his lawful residence ended when an administrative-review decision was served in January 2016, before he had completed ten years. She also certified his associated Article 8 claim as clearly unfounded under section 94 of the Nationality, Immigration and Asylum Act 2002.

The applicant contended that paragraph 276B(v) of the Immigration Rules required the period after his out-of-time application to be treated as lawful residence. He also alleged an inadequate exercise of discretion and an unlawful certificate. Permission for judicial review had been granted by the Upper Tribunal. The central issue was whether paragraph 276B(v) could enable the period of overstaying to count towards the ten-year requirement in paragraph 276B(i)(a).

1. The application for judicial review was refused. The applicant’s Article 8 claim had no prospect of success and was bound to fail. The Secretary of State’s certificate that it was clearly unfounded under section 94 of the Nationality, Immigration and Asylum Act 2002 was rational.

2. The test for whether a claim is clearly unfounded is objective and binary. A claim is not clearly unfounded if there is any reasonable doubt in its favour or if it may succeed on at least one legitimate view of the facts or law. The Tribunal applied anxious scrutiny and considered the sequential Article 8 questions in Razgar v SSHD [2004] UKHL 27.

3. Permission to bring judicial review did not bind the judge deciding the substantive claim. The question of the proper construction of paragraph 276B(v) fell to be decided following full argument.

4. Paragraph 276B contains five separate requirements, all of which must be met under paragraph 276D. Under paragraph 276A(b), lawful residence requires existing leave, qualifying temporary admission followed by a grant of leave, or an exemption from immigration control. The applicant had not completed ten years of such residence by the end of his leave.

5. Paragraph 276B(v) is a separate and additional requirement. It does not qualify paragraph 276B(i)(a), deem an overstayer to hold leave, or make residence during the determination of an application lawful for the ten-year calculation. The Tribunal rejected the suggested construction as unsupported by the Rules’ structure and as liable to facilitate abuse of the system.

6. There was no arguable public-law error in the Secretary of State’s consideration of discretion or of the applicant’s private and family life. Applying the Article 8 analysis, the claim was bound to fail.

Upper Tribunal (Immigration and Asylum Chamber): Permission to apply for judicial review was granted following an oral renewal hearing. On the substantive hearing, the Tribunal refused the judicial-review application and upheld the section 94 certification.