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

For long-residence applications under the Immigration Rules, a period of overstaying which falls within paragraph 39E is disregarded so that it does not break continuity. It does not, however, count positively towards the required ten years of continuous lawful residence.

An application for leave made with a fee-waiver request is conditionally valid. Section 3C leave continues until the applicant fails to pay a fee properly required after refusal of the waiver and expiry of the payment period. For paragraph 39E, an in-time application includes one later rejected as invalid, and its rejection is a refusal. The 14-day period then runs from notification of invalidity.

The appellant, a Pakistani national, applied for indefinite leave to remain on the basis of ten years’ continuous lawful residence. The Secretary of State refused the application because a period without formal leave had broken that residence.

The Upper Tribunal refused permission for judicial review. It held that section 3C leave extended until 22 January 2018, but that the later period could not be protected by paragraph 39E. The appellant appealed from that refusal. The Court of Appeal conducted a rolled-up hearing, determining both permission and the substantive judicial review claim.

The central issues were when section 3C leave ended, whether paragraph 39E covered an application rejected as invalid for non-payment of the Immigration Health Surcharge, and whether a disregarded period of overstaying counts towards ten years’ lawful residence.

1. Permission was granted, but the judicial review claim was dismissed. Sir Patrick Elias, with whom Males and Peter Jackson LJJ agreed, held that the appellant had not completed ten years’ continuous lawful residence when the Secretary of State decided his application.

2. The appellant’s application, made with a request for fee waiver, was conditionally valid. Section 3C therefore extended his leave, but only until 22 November 2017, when he failed to pay the Immigration Health Surcharge within the period allowed after the waiver request had failed. The invalidity then arose automatically by operation of law. Notice of invalidity did not itself constitute a decision varying leave.

3. Paragraph 39E(2)(b)(i) nevertheless applied. In that provision, an application includes an in-time application later rejected as invalid, and refusal includes such rejection. The paragraph’s purpose and contemporaneous policy material resolved any linguistic ambiguity. The further application, made within 14 days of notification on 22 January 2018, therefore brought the historic book-ended period of overstaying within paragraph 39E.

4. Following Hoque on the interaction between paragraph 276B(i)(a) and the second sentence of paragraph 276B(v), the protected period did not break continuity. The court respectfully declined to follow Hoque insofar as it treated that period as counting towards the ten years. “Disregarded” means ignored. It prevents the gap from restarting the continuity calculation, but does not transform residence without leave into lawful residence.

5. The Upper Tribunal’s case-management decisions concerning adjournment and amendment caused no prejudice and disclosed no error of law. The order granted permission to apply for judicial review and dismissed the claim.

• Court of Appeal (Civil Division): In [2021] EWCA Civ 1909, granted permission to apply for judicial review but dismissed the substantive claim.
• Upper Tribunal (Immigration and Asylum Chamber): UTJ Stephen Smith refused permission for judicial review after an oral hearing. An earlier paper application had been refused by UTJ Canavan.