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

Section 3C of the Immigration Act 1971 extends existing leave only where a valid application to vary that leave was made before its expiry. An application accompanied by a fee-waiver request may be conditionally valid, but becomes invalid prospectively if waiver is refused and the charge remains unpaid after the prescribed period.

Under paragraph 276B(v) of the Immigration Rules, disregarding a qualifying period of overstaying preserves continuity between periods of lawful residence. It does not convert overstaying into lawful residence or count it towards the required ten years. “The previous application” in paragraph 276B(v)(a) means the application which resulted in the later grant of leave that ended the period of overstaying.

These conjoined appeals concerned applications for indefinite leave to remain based on ten years’ continuous lawful residence.

Mr Afzal applied to extend his leave while also seeking a fee waiver. After waiver was refused, he failed to pay the Immigration Health Surcharge within the prescribed period. The Court of Appeal dismissed his judicial review claim in [2021] EWCA Civ 1909; [2022] 4 WLR 21. His appeal raised whether section 3C extended his leave and whether a period of overstaying disregarded under paragraph 276B(v) counted towards ten years’ lawful residence.

Mr Iyieke made an unsuccessful out-of-time application within 28 days after his leave expired. A later, different application ultimately resulted in further leave. The Court of Appeal dismissed his claim in [2022] EWCA Civ 1147. His appeal concerned whether the unsuccessful application was “the previous application” within paragraph 276B(v)(a).

1. Both appeals were dismissed unanimously. Lord Sales delivered the judgment, with which Lord Reed, Lord Kitchin, Lord Burrows and Lord Stephens agreed.

2. Section 3C of the Immigration Act 1971 applies only where a valid application to vary existing leave was made before that leave expired. An application may nevertheless engage section 3C where it is initially valid but the Secretary of State can later treat it as invalid. The distinction depends upon the legal effect of the applicable legislative scheme: R (Mirza) v Secretary of State for the Home Department [2016] UKSC 63; [2017] 1 WLR 85 applied and explained.

3. Mr Afzal’s application, which included a fee-waiver request, was conditionally valid because liability to pay had not yet been established. Once waiver was refused and payment requested, article 6(1) of the Immigration (Health Charge) Order 2015 required payment within ten working days beginning when the request was sent. Failure to pay made the application invalid prospectively by operation of law. Notification of invalidity did not create that legal consequence.

   Section 3C therefore extended Mr Afzal’s leave only until 31 October 2017. His February 2018 application was not made within 14 days after that extension expired and could not engage paragraph 39E(2)(b)(ii).

4. The word “disregarded” in both limbs of paragraph 276B(v) bears its natural meaning of ignored. A qualifying current period of overstaying does not itself prevent an application. A qualifying earlier, book-ended period does not break continuity between the lawful periods on either side. The period of overstaying does not become lawful residence and is not added when calculating ten years’ continuous lawful residence. The disregard operates as a shield against specified consequences of overstaying, not as a source of lawful residence.

5. In paragraph 276B(v)(a), “the previous application” means the application which resulted in the later grant of leave ending the relevant book-ended period of overstaying. It does not mean any unsuccessful application made within 28 days after earlier leave expired. The definite article, the repeated use of “previous”, the provision’s context and the avoidance of irrational incentives all supported that construction. Mr Iyieke’s unsuccessful 2014 application therefore did not qualify.

1. United Kingdom Supreme Court: Dismissed both appeals unanimously and affirmed the respective decisions of the Court of Appeal: [2023] UKSC 46.
2. Court of Appeal — Mr Afzal: Granted permission to apply for judicial review but dismissed the claim on its merits: [2021] EWCA Civ 1909; [2022] 4 WLR 21.
3. Upper Tribunal — Mr Afzal: Refused permission to claim judicial review.
4. Court of Appeal — Mr Iyieke: Granted permission to apply for judicial review but dismissed the claim on its merits: [2022] EWCA Civ 1147.
5. Upper Tribunal — Mr Iyieke: Refused permission to apply for judicial review at first instance.