Hoque & Ors v The Secretary of State for the Home Department (Rev 1)

The requirements for indefinite leave to remain based on long residence are separate and self-contained. Disregarding a current period of overstaying under paragraph 276B(v) of the Immigration Rules does not convert it into lawful residence or count it towards ten years’ continuous lawful residence.

By contrast, the disregard for a previous period of overstaying between grants of leave qualifies the continuous-residence requirement. Its placement in paragraph 276B(v) is a drafting error.

In an article 8 assessment, effective immigration control carries statutory weight. Private life established while immigration status was precarious ordinarily attracts little weight. A near miss under the Rules does not alone establish compelling circumstances.

Four migrants sought to challenge decisions refusing indefinite leave to remain or related human-rights claims. Three had accumulated ten years’ residence only after their last leave had expired, while further applications made within the applicable grace period remained outstanding. They argued that paragraph 276B(v) of the Immigration Rules required their current overstaying to be disregarded when calculating ten years’ continuous lawful residence.

The cases reached the Court of Appeal through appeals from refusals of permission to seek judicial review in the Upper Tribunal. Mr Arif additionally sought permission, substantially out of time, to appeal from decisions of the Administrative Court. Article 8 issues arose through certification under section 94 of the Nationality, Immigration and Asylum Act 2002 or decisions under paragraph 353 of the Rules.

The principal issue was whether the current-overstaying disregard in paragraph 276B(v) qualified the independent continuous-lawful-residence requirement in paragraph 276B(i)(a).

1. By a majority, the appeals were dismissed. Underhill and Dingemans LJJ held that the requirements in paragraphs 276B(i)–(v) of the Immigration Rules are freestanding and self-contained. Paragraph 276B(i)(a) asks whether the applicant has completed ten years’ continuous lawful residence. Paragraph 276B(v) addresses the applicant’s compliance with immigration law at the date of decision. The latter provision also reaches breaches of conditions which do not themselves terminate leave.

2. The paragraph 39E disregard for a current period of overstaying in paragraph 276B(v) qualifies only the current-status requirement in that sub-paragraph. It neither converts overstaying into lawful residence nor permits time spent without leave to count towards the ten-year period. Open-ended overstaying therefore prevented Messrs Hoque, Kabir and Arif from satisfying paragraph 276B(i)(a). R (Juned Ahmed) v Secretary of State for the Home Department [2019] UKUT 10 (IAC) was correct on that issue.

3. The disregard for a previous period of overstaying between grants of leave was different. Such book-ended overstaying could have no relevance to the present-status requirement in paragraph 276B(v). To give that provision effect, it had to be treated as qualifying paragraph 276B(i)(a), notwithstanding its erroneous placement. The language, drafting history, explanatory memorandum and published practice supported that construction. R (Masum Ahmed) v Secretary of State for the Home Department [2019] EWCA Civ 1070 was wrongly decided on this point.

4. It was rational and proportionate to distinguish open-ended overstaying from a book-ended gap followed by an actual grant of leave. A pending application may remain merely a place-holder and can be varied as the ten-year point approaches. A completed gap is materially different because further leave has been granted.

5. The article 8 challenges failed. The maintenance of effective immigration control carried statutory weight, while private life established during precarious status ordinarily attracted little weight. A near miss under the Rules did not, without exceptional features, establish a realistic prospect of success. The Secretary of State lawfully certified or declined to treat the relevant claims as fresh claims.

6. McCombe LJ dissented on paragraph 276B. He considered that both disregards naturally qualified continuous lawful residence and would have allowed the appeals on that construction. He agreed that the article 8 grounds failed.

7. Mr Arif’s applications were refused. The exceptional jurisdiction to reopen judicial-review proceedings was not engaged, and the unexplained delay in seeking permission to appeal was serious. Permission to appeal was granted to Messrs Hoque, Kabir and Mubarak, but their appeals were dismissed.

• Court of Appeal: By a majority, granted permission to appeal to Messrs Hoque, Kabir and Mubarak but dismissed their appeals. It refused Mr Arif permission to appeal from the orders of Elisabeth Laing J and Saini J.

• High Court, Administrative Court (Arif): Elisabeth Laing J refused permission to seek judicial review of the Upper Tribunal’s refusal of permission to appeal. Saini J subsequently refused to reopen that decision.

• Upper Tribunal (Hoque, Kabir and Mubarak): Refused permission to seek judicial review of the Secretary of State’s certification or fresh-claim decisions.

• First-tier and Upper Tribunals (Arif): The First-tier Tribunal dismissed the immigration appeal. Permission to appeal to the Upper Tribunal was refused.