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

The long-residence policy, properly construed across its versions from 2000 to 2017, preserves a bright-line requirement of ten years’ continuous lawful residence. Its defined exceptions address practical inequities without converting current, open-ended overstaying into lawful residence.

The policy consistently distinguishes open-ended overstayers from book-ended overstayers. The latter may rely on specified gaps between grants of leave; the former cannot use an exception for current overstaying to acquire the core qualifying period. The policy is sufficiently clear, rational and capable of striking a fair balance. Any residual discretion cannot ordinarily be used to waive that core requirement without special circumstances.

The applicants sought judicial review of decisions refusing to treat their further submissions as fresh human-rights claims under paragraph 353 of the Immigration Rules. Each had previously had an article 8 appeal dismissed by the First-tier Tribunal. They subsequently made long-residence applications after their leave, including leave extended by statute, had ended.

They accepted that they could not meet paragraph 276B as construed in Hoque & Ors v SSHD [2020] EWCA Civ 1357. They contended, however, that the Secretary of State's wider long-residence policy required consideration of discretion in favour of open-ended overstayers, and that the refusals inadequately addressed article 8 and paragraph 353.

The central issue was whether the policy permitted open-ended overstayers who had not accumulated ten years’ continuous lawful residence to obtain leave or to have their further submissions treated as fresh claims.

1. The judicial review applications were refused. The Secretary of State had correctly applied the long-residence policy. The policy did not assist either applicant, and the refusals under paragraph 353 were lawful.

2. The Tribunal followed Hoque & Ors v SSHD [2020] EWCA Civ 1357. Paragraph 276B requires an applicant to have accumulated ten years’ continuous lawful residence. The disregard for current overstaying under paragraph 39E qualifies paragraph 276B(v), not the independent qualifying requirement in paragraph 276B(i)(a). It cannot turn an open-ended period of overstaying into continuous lawful residence.

3. The policy history from the 2000 concession through the 2017 guidance showed a consistent distinction between open-ended and book-ended overstaying. Its exceptions for short gaps, successful later applications or appeals, temporary admission, absences, and early applications were limited and intelligible. They preserved the core requirement rather than creating a broad discretion to grant leave to those who had not acquired it.

4. The policy was neither inaccessible nor arbitrary. It pursued the rational aim of recognising a specified period of lawful residence while making defined practical exceptions. Treating residence of any legality as equivalent to continuous lawful residence would create an impermissible sliding scale and undermine the distinction between the ten-year route and other routes to leave.

5. Although residual discretion under the Immigration Act 1971 existed, it could not properly be used on these facts to disregard the core attribute of continuous lawful residence. The applicants’ swift renewed applications after refusal did not amount to special circumstances.

6. The applicants’ article 8 claims had recently been rejected by the First-tier Tribunal. Their further submissions added no materially new private- or family-life factor beyond a legally insignificant anniversary of residence. The respondent was therefore entitled to conclude that they created no realistic prospect of success and were not fresh claims under paragraph 353.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review applications challenging refusals to treat further submissions as fresh claims were refused.
• First-tier Tribunal: Each applicant had previously had an article 8 appeal dismissed. Their appeal rights were exhausted before the further submissions that led to these judicial review proceedings.