Victormills Onyekachi Iyieke (R on the application of) v Secretary of State for the Home Department

Paragraph 276B of the Immigration Rules requires at least 10 years’ continuous lawful residence, subject to the specific qualifications in paragraph 276B(v).

For paragraph 276B(v)(a), the previous application must be the application which resulted in a period of leave. An unsuccessful application made during a period of book-ended leave does not cause the intervening overstay to be disregarded. Guidance allowing discretion to mitigate the Rules does not itself become an Immigration Rule, and failure to exercise that discretion is lawful where no exceptional circumstances exist.

The appellant challenged the Secretary of State’s refusal of indefinite leave to remain on the basis of 10 years’ continuous lawful residence. His leave expired on 9 August 2014. An application made within 28 days was refused, and he later received temporary admission followed by leave to remain on human-rights grounds.

Upper Tribunal Judge Gleeson refused a renewed application for permission to apply for judicial review, finding that the intervening gap could not count towards continuous lawful residence. The appellant argued that the gap was book-ended by leave, or that the Secretary of State had failed to exercise discretion under the Long Residence guidance. The central issues were the construction of paragraph 276B and the lawfulness of the Secretary of State’s approach to discretion.

Disposition. Lord Justice Dingemans, with Lord Justices Warby and Arnold agreeing, granted permission to apply for judicial review but dismissed the claim.

1. Following Hoque v Secretary of State for the Home Department [2020] EWCA Civ 1357, paragraph 276B(v) of the Immigration Rules qualifies the basic requirement in paragraph 276B(i)(a). The provision permits specified periods of overstaying between periods of leave to be disregarded only where its conditions are met.
2. The expression ‘the previous application’ in paragraph 276B(v)(a) refers to the application which resulted in a period of leave. It does not include any unsuccessful application made during a period of book-ended leave. Paragraph 276A(b) defines lawful residence to include existing leave, temporary admission or immigration bail, and exemption from immigration control. Temporary admission may count where leave is subsequently granted, but the intervening period without lawful residence remains a gap unless paragraph 276B(v) applies.
3. The appellant’s leave expired on 9 August 2014 and temporary admission began on 28 November 2014. The resulting 111-day gap was not covered by paragraph 276B(v)(a), because the application made within 28 days had been unsuccessful. The appellant therefore did not have 10 years’ continuous lawful residence on 13 June 2021. The challenge to Afzal v Secretary of State for the Home Department [2021] EWCA Civ 1909 as having been decided per incuriam did not arise.
4. The Secretary of State has a wide discretion under the Immigration Act 1971 to grant leave outside the Rules, as recognised in R(Munir) v Secretary of State for the Home Department [2012] UKSC 32. Guidance governing that discretion does not thereby become an Immigration Rule; its character depends on its terms. The Long Residence guidance contemplated discretion for circumstances such as serious illness, postal failure or inability to provide documents. No comparable circumstances existed, so there was no unlawful failure to exercise discretion.
5. The Secretary of State was also entitled to address the appellant’s human-rights and other grounds through his existing or separate leave arrangements. The judicial review claim was dismissed.

1. Court of Appeal (Civil Division): Granted permission to apply for judicial review but dismissed the claim, holding that the appellant lacked 10 years’ continuous lawful residence and that the Secretary of State had acted lawfully.
2. Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Gleeson refused the renewed application for permission to apply for judicial review, holding that the gap in residence could not count towards continuous lawful residence.