Muneeb Asif v The Secretary of State for the Home Department

On the proper construction of Immigration Rules paragraph 276B, a previous period of overstaying between grants of leave which falls within the second disregard in paragraph 276B(v)(a) or (b) is treated as lawful residence when assessing ten years’ continuous lawful residence under paragraph 276B(i).

The disregard concerns the unlawful character of the intervening residence, not merely whether its duration is counted. The distinct disregard for current, open-ended overstaying remains confined to paragraph 276B(v) and does not qualify paragraph 276B(i). Published guidance may assist the construction of an ambiguous Rule where it adopts the more favourable interpretation.

The appellant, a Pakistani national, sought indefinite leave to remain on the basis of ten years’ long residence. His leave had expired on 3 July 2014 after he withdrew an appeal. He made a further application 22 days later, within the pre-24 November 2016 period specified in paragraph 276B(v)(a), and was ultimately granted leave on 23 November 2015.

The Secretary of State treated the intervening 507 days as unlawful residence and refused the human rights claim. The First-tier Tribunal dismissed the appeal, holding that disregarded overstaying did not become lawful residence. The central issue before the Upper Tribunal was whether the second disregard for previous, book-ended overstaying applied when calculating ten years’ continuous lawful residence.

1. The appeal was allowed. The First-tier Tribunal had erred in law by treating the second disregard in paragraph 276B(v) as irrelevant to the requirement in paragraph 276B(i). Its decision was set aside.

2. Paragraph 276B had to be construed sensibly and by the natural meaning of its language, while recognising that the Immigration Rules state administrative policy. Although paragraph 276A(b)(i) generally defines lawful residence as residence pursuant to existing leave, that definition had to be read in the context of the second disregard in paragraph 276B(v).

3. Following the majority construction in Hoque & Ors v The Secretary of State for the Home Department [2020] EWCA Civ 1357, the Tribunal held that the second disregard belongs, in substance, with the ten-year requirement in paragraph 276B(i). It removes the unlawfulness arising from a qualifying previous period of overstaying between periods of leave. Such a period therefore counts as lawful residence for that requirement.

4. The position differs from current, open-ended overstaying. The first disregard in paragraph 276B(v), where paragraph 39E applies, qualifies only the requirement not to be in breach of immigration laws at the date of application. It does not convert current overstaying into lawful residence for paragraph 276B(i).

5. The appellant’s application of 25 July 2014 fell within paragraph 276B(v)(a). The intervening period consequently counted as lawful residence. He satisfied all the requirements of paragraph 276B and, applying TZ (Pakistan) [2018] EWCA Civ 1109, his human rights appeal was allowed.

• Upper Tribunal (Immigration and Asylum Chamber): Set aside the First-tier Tribunal’s decision for legal error and remade the decision by allowing the human rights appeal.
• First-tier Tribunal: Dismissed the appeal in a decision promulgated on 9 March 2020, holding that the period of overstaying could not count as lawful residence.