R (on the application of Afzal) v Secretary of State for the Home Department [2021] EWCA Civ 1909

The Court of Appeal has handed down judgment in a 276B long residence immigration case. On 17 December the Court of Appeal delivered judgment in the case of R (on the application of Afzal) v Secretary of State for the Home Department [2021] EWCA Civ 1909.

The Court comprising of Lord Justice Peter Jackson, Lord Justice Males, and Sir Patrick Elias found that a period of time falling within paragraph 39E of the Immigration Rules cannot count towards the assessment of ten years for the purpose of a long residence application for Indefinite Leave to remain under paragraph 276B.

Paragraph 39E provides that there may be periods when residence without leave (periods of overstaying) must be “disregarded”.  Where this rule applies, it is common ground that it will not break the period of continuous lawful residence. In Afzal it was a matter of dispute whether such periods actively count as periods of lawful leave when calculating whether the period of ten years has been achieved. 

Afzal appealed against an Upper Tribunal decision to refuse permission for judicial review of the Secretary of States’ decision to refuse his application for Indefinite Leave to Remain on the basis that he had completed 10 years of continuous lawful residence pursuant to paragraph 276B of the Immigration Rules.

The Court declined to follow the 2020 decision of Hoque on the 276B(v) meaning of “disregarded” within the scope of 39E. In Hoque it was held that the whole period of overstaying under 39E should positively count when assessing whether the ten year period of continuous lawful residence was satisfied. 

In dismissing the application for judicial review, the Court held that the obligation to reside for ten years was not met by the Appellant and that the Secretary of State’s refusal to grant Indefinite Leave to Remain was lawful. The Court found that while paragraph 276B requires the Secretary of State to ignore what would otherwise be gaps in lawful residence such that the clock assessing continuous residence need not start again, it does not mean that the period should positively count as a period of lawful residence.

Ben Keith represented the Secretary of State for the Home Department.

Ben Keith is a leading barrister specialising in Extradition and International Crime, as well as dealing with Immigration, Serious Fraud, and Public law. He has extensive experience of appellate proceedings before the Administrative and Divisional Courts, Criminal and Civil Court of Appeal as well as applications and appeals to the European Court of Human Rights (ECHR) and United Nations. He is ranked in Chambers and Partners as a band 1 leader in the field of Extradition at the London Bar and in the Legal 500 as a Tier 1 leading individual in international crime and extradition. Ben recently won the International Pro Bono Barrister of the Year in November 2021.