Hoque & Ors v The Secretary of State for the Home Department (Rev 1)

There are before us five applications for permission to appeal (though two of them are in the same case), which have been directed to be heard together on an inter partes basis, with the appeal to follow if permission is granted. For convenience I will refer to them all as appeals and to the applicants as Appellants. The appeals were directed to be heard together because the factual situation which gives rise to them has generated a large number of claims in the tribunals and several applications for permission to appeal to this Court. The precise nature of the orders appealed against in each case and the procedural routes by which they come before the Court vary. The details appear in the judgment of Dingemans LJ, and I need not recapitulate them here.

Three of the Appellants – Messrs Hoque, Kabir and Mubarak – are nationals of Bangladesh. The fourth, Mr Arif, is a national of Pakistan. They all came to this country over ten years ago with leave to enter as students and have had further grants of leave to remain since then. They claim to be entitled to indefinite leave to remain (“ILR”) on the basis of long residence. The Secretary of State does not accept that they are so entitled, essentially because at the time of their applications their leave to remain had expired and they were overstayers.

In three of the appeals – Hoque, Kabir and Arif – the primary issue is whether, as they claim, the Appellants are entitled to ILR under the long residence provisions of the Immigration Rules. That turns on the correct interpretation of paragraph 276B of the Rules. That is an issue of law the outcome of which will necessarily be determinative of the rights of all applicants for ILR in the same circumstances. By way of alternative they contend that the refusal of ILR is in breach of their rights under article 8 of the European Convention on Human Rights. In the fourth appeal – Mubarak – the Appellant relies only on article 8. The article 8 issues are case-specific and do not in themselves raise any issue of principle.

Mr Hoque has been represented before us by Mr Manjit Gill QC, leading Mr Edward Nicholson; Mr Kabir by Mr Michael Biggs; Mr Mubarak by Mr Zane Malik; and Mr Arif by Ms Stephanie Harrison QC, leading Mr Zainul Jafferji and Mr Arif Rehman. The Secretary of State has been represented by Ms Lisa Giovannetti QC, leading Mr Ben Keith. The quality of both the written and the oral submissions was high. I should also pay tribute to the care with which the core bundles and the bundle of authorities were prepared.

I should by way of preliminary summarise the circumstances in which an application for ILR on the basis of long residence will typically be made. The applicant will have come to this country with limited leave to enter, typically as a student, and will have then been granted successive further limited periods of leave to remain, usually either

In the most straightforward case leave for those further or extended periods will have been granted before the expiry of the previous period of leave. But very commonly that will not be the case, because even if the application is made some time before the end of the period the current leave may expire before the Home Office makes a decision (or before the expiry of the applicable review and appeal processes if the application is refused). That situation is addressed by section 3C of the Immigration Act 1971, which provides (in summary) that in such a case leave will be automatically extended until 14 days after the decision is made (or any right of review or appeal has been exhausted). It is important to appreciate that section 3C only operates where the application for further leave is made beforethe expiry of the current period (“in time”). If it is made after the expiry of the current period, the application may in due course be granted, but during the intervening period the applicant will have no leave and will be an overstayer.

Paragraphs 276A-276D of the Immigration Rules are headed “Long Residence”. Paragraph 276A contains certain definitions applicable to those paragraphs (and also to paragraphs 276ADE and 399A). Paragraphs 276B-276D constitute the primary operative provision. Paragraph 276B is headed “Requirements for indefinite leave to remain on the ground of long residence in the United Kingdom”. Paragraph 276C provides that ILR may be granted if the Secretary of State is satisfied that “each of [those requirements] is met”; and paragraph 276D provides if she is not so satisfied leave is to be refused.

Paragraph 276B provides (so far as material for our purposes):

“The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:

(i)

(a) (Footnote: ¹) he has had at least 10 years continuous lawful residence in the United Kingdom.

(ii)

having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, … and

(iii)

the applicant does not fall for refusal under the general grounds for refusal.

(iv)

the applicant has demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom … .

(v)

[A] the applicant must not be in the UK in breach of immigration laws, [B] except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. [C] Any previous period of overstaying between periods of leave will also be disregarded where –

(a)

the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or

(b)

the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.”

I have inserted the letters [A]-[C] before each of the elements in sub-paragraph (v) so as to make subsequent reference to them easier.

To anticipate, these appeals primarily focus on the effect of sub-paragraph (v) of paragraph 276B. I will have to analyse it more fully later, but at this stage it is important to note that it consists of the primary “requirement” ([A]), followed by provision for two circumstances in which periods of overstaying may be “disregarded” ([B] and [C]), the first of which relates to “current … overstaying” and the second to “previous … overstaying between periods of leave”. Those two kinds of overstaying were referred to in the argument before us as, respectively, “openended” and “book-ended” overstaying. I should also explain that the distinction under element [C] based on the date of the previous/further application reflects the fact that as from 24 November 2016 the previous general policy under the Rules of disregarding periods of overstaying of under 28 days was abandoned and a regime providing for different kind of disregard (“the paragraph 39E regime”) was introduced.

Some of the terms used in paragraph 276B are defined either in paragraph 276A or in paragraph 6, which contains definitions applicable to the Rules generally (Footnote: ²). For present purposes I should set out three definitions.

First, the two elements in the phrase in sub-paragraph (i) “continuous lawful residence” are defined in paragraph 276A as follows (so far as relevant):

“(a)

‘continuous residence’ means residence in the United Kingdom for an unbroken period, and for these purposes a period shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time, provided that … [I need not set out the provisos].

(b)

‘lawful residence’ means residence which is continuous residence pursuant to:

(i)

existing leave to enter or remain; or

(ii)

temporary admission within section 11 of the 1971 Act (as previously in force), or immigration bail within section 11 of the 1971 Act, where leave to enter or remain is subsequently granted; or

(iii)

an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain.”

In these appeals only head (i) of the definition of “lawful residence” is material, but I have included (ii) and (iii) for completeness. It is common ground before us that the phrase “existing leave to enter or remain” in (b) (i) includes leave extended by section 3C of the 1971 Act; and that seems plainly correct.

Second, the phrase “in breach of immigration laws” in sub-paragraph (v) is defined in paragraph 6 as meaning“without valid leave where such leave is required, or in breach of the conditions of leave”.

Third, the word “overstaying” which appears in sub-paragraph (v) is defined in paragraph 6 as meaning that

“the applicant has stayed in the UK beyond the latest of:

Paragraph 39E of the Immigration Rules, which is incorporated by reference in both the disregards under paragraph 276B (v), is headed “Exceptions for overstayers”. As already mentioned, the regime for which it provides replaced an earlier regime under which (broadly) any period of overstaying of up to 28 days was overlooked. (Footnote: ³) It reads:

“This paragraph applies where:

(1)

the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or

(2)

the application was made:

(a)

following the refusal of a previous application for leave which was made in-time; and

(b)

within 14 days of:

(i)

the refusal of the previous application for leave; or

(ii)

the expiry of any leave extended by section 3C of the Immigration Act 1971; or

(iii)

the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or

(iv)

any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.”

What paragraph 39E therefore does is to define circumstances in which the fact that an applicant for further leave to remain is an overstayer may be disregarded. It does not itself provide for the disregard: that will be done in the operative provision which incorporates it by reference – in our case, paragraph 276B. The two circumstances which attract the disregard are of different characters, but in both the application for further leave needs to have been made within 14 days of the expiry of the previous leave or (to over-simplify) the refusal of a previous in-time application. The effect for our purposes is that, when read with sub-paragraph 276B (v), where either condition is satisfied the periods of overstaying identified in element [B] or element [C], as the case may be, are disregarded: I will have to come back later to what exactly that means.

The full immigration histories of the Appellants are set out in the judgment of Dingemans LJ. At the cost of some repetition, I ought to set out here those aspects which are relevant for the purpose of the issue under paragraph 276B. I should explain by way of preliminary that where an applicant for leave to remain on one basis is pending it is open to him or her to make a further application on a different basis, which is treated as a variation of the original application: see JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78. As will appear, all three Appellants took advantage of this right.

Hoque

Kabir

Arif

The essential elements in the situations of these three Appellants which give rise to the issue before us are as follows:

In each case the Secretary of State refused the Appellant ILR on the basis that it followed from those facts that as from the expiry of the last period of limited leave their residence had not been lawful and that they accordingly could not satisfy the requirements of paragraph 276B (i) (a).

It is the Appellants’ case that the period of overstaying since the expiry of their last leave to remain falls to be “disregarded” pursuant to element [B] in sub-paragraph (v) because the period between the expiry of their previous leave and the date of decision constituted “current” overstaying. They say that the effect of the disregard is that the period in question falls to be treated as continuous lawful residence, with the result that the requirement in paragraph 276B (i) (a) is satisfied.

The Secretary of State’s response to that case is that the various sub-paragraphs of paragraph 276B constitute self-contained requirements and accordingly that the disregard in sub-paragraph (v) on which the Appellants rely cannot have any effect on the requirements of sub-paragraph (i).

Before I turn to address that issue I need to refer to two recent decisions in which the effect of paragraph 276B (v) has been considered – first, the decision of the Upper Tribunal (Sweeney J) in R (Juned Ahmed) v Secretary of State for the Home Department [2019] UKUT 10 (IAC) and, second, the decision of this Court (Floyd and Haddon-Cave LJJ) to refuse permission to appeal in R (Masum Ahmed) v Secretary of State for the Home Department [2019] EWCA Civ 1070. I take them in turn.

In Juned Ahmed the facts were materially identical to those of the present appeals as summarised at para. 21 above. As here, the Secretary of State (represented, as it happens, by Mr Malik) relied on paragraph 276B (i) (a) and the claimant (represented, as it happens, by Mr Biggs) relied on paragraph 276B (v). Their arguments are fully summarised by Sweeney J at paras. 45-51 of his judgment, but they largely correspond to the arguments before this Court and I need not reproduce them here.

In Masum Ahmed the facts were different from those of the present appeals in as much as the claimant had leave to remain at the date of his application but there were two periods during the relevant ten years during which he was an overstayer because his previous leave had expired and, although he was in due course granted a further period of leave, he had not applied in time and so did not enjoy “3C leave”: in short, it was a case of book-ended overstaying. The Secretary of State argued that those periods of overstaying meant that the period of his lawful residence was not

“unbroken”, as required by paragraph 276A (a). The claimant argued that the two gaps attracted the operation of paragraph 39E and fell to be disregarded under paragraph 276B (v). The Upper Tribunal rejected that argument.

The claimant’s application to this Court for permission to appeal was heard orally on an inter partes basis. As I have said, the Court refused permission. It gave a full judgment which it permitted to be reported because there were a number of other pending appeals raising the same point. Its reasoning appears at paras. 14-17. Para.

Neither decision is binding on us, Juned Ahmed because it is a decision of the Upper Tribunal and Masum Ahmed because it is a decision to refuse permission to appeal (see, e.g., Arthur J S Hall v Simon [1999] 3 WLR 873, per Lord Bingham CJ at p. 902H).

My starting-point is that I agree with both Sweeney J in Juned Ahmed and this Court in Masum Ahmed that it is quite clear from the structure and language of paragraph 276B that the requirements identified at sub-paragraphs (i)-(v) are intended to be freestanding and self-contained. Normally it would follow that any disregard provided for in a particular sub-paragraph would only relate to that requirement, and thus that the Appellants cannot invoke the disregards in sub-paragraph (v) to remedy their inability to satisfy the requirements of sub-paragraph (i) (a).

However it is not as straightforward as that. The effect of sub-paragraph (v) is in fact seriously problematic, and I will need to consider each of the elements in turn.

Element [A] states the actual requirement which sub-paragraph (v) imposes, namely that the applicant must not “be in the United Kingdom in breach of immigration laws”. Mr Gill submitted that that to a great extent overlapped with the requirement in sub-paragraph (i) (a) that the applicant should have had ten years’ continuous lawful residence: if they were in the UK in breach of immigration laws their residence could not be lawful. If that were correct, it would make it less difficult to argue for

I should mention one other point. In course of the hearing Dingemans LJ pointed out that a further distinction between sub-paragraphs (i) (a) and (v) is that the phrase “in breach of immigration laws” in the latter is wider than the requirement of “lawful” residence in the former (as defined in paragraph 276A (a)), in that it covers not only cases where the person has no leave but also cases where they have it but are in breach of conditions: a breach of conditions does not automatically terminate leave, though it will be a ground on which it can be curtailed. The result is that an applicant with ten years’ continuous lawful residence whose leave remains current at the date of decision will still be refused ILR if (say) they have leave as a student and are found to be working in excess of the permitted number of hours. I understood Ms Giovannetti to accept that this was correct. That is, however, entirely consistent with the purpose of sub-paragraph (v) being to address the applicant’s position at the date of the decision. There is nothing surprising in the Secretary of State wishing to ensure compliance with immigration laws at the date of decision but not reserving a right to rely on past breaches (maybe up to ten years previously) which did not attract curtailment at the time.

Element [B] is, expressly, an exception to that requirement – “except that”. Subject to the arguments which I consider below, its effect is that where the applicant has had ten years’ continuous lawful residence in the past but it has expired, so that he or she is “currently” (i.e. at the date of decision) overstaying, that breach of the immigration laws will be disregarded in deciding whether the requirement in sub-paragraph (v) is satisfied, provided that one of the two “paragraph 39E circumstances” applies. Such a situation might readily occur. The applicant’s current limited leave (or, perhaps, an extension of it under section 3C) might expire after the ten-year anniversary and without them having made a further application on the basis of their ten years’ residence: they would thus become overstayers. The effect of paragraph 39E would be that if they made that application within the 14-day grace period, or could show that the omission was the result of circumstances beyond their control, the overstaying would be disregarded with the result that the requirement in sub-paragraph (v) was treated as satisfied.

So far so good, but the difficulty is with element [C]. The problem is that the disregard for which it provides applies to “previous periods of overstaying between periods of leave”; but overstaying of that character has no possible application in the context of the requirement which sub-paragraph (v) imposes. That requirement is, as we have seen, concerned only with the applicant’s immigration status at the date of decision, to which previous book-ended periods of overstaying could never be relevant. There is a frank disconnect between the disregard and the requirement to which it appears to be applied. That is in fact reflected in the way that element [C] is verbally linked to the rest of the paragraph. Unlike element [B], which is explicitly framed as an exception to the primary requirement and part of the same sentence, it takes the form of a self-contained sentence to the effect that the relevant periods of overstaying “will also be disregarded”. In short, element [C] does not belong in subparagraph (v). The only context in which previous periods of overstaying between periods of leave – and thus also a provision that they be disregarded – would matter is the requirement of ten years’ continuous lawful residence, which would of course otherwise be broken by a period of overstaying between periods of leave. If element [C] is to have any effect it belongs in sub-paragraph (i) (a).

It follows that we are faced with a choice between, on the one hand, giving element [C] no effect and, on the other, treating its placing within paragraph 276B as a drafting error and applying it as if it qualified sub-paragraph (i) (a). In my view we should choose the latter. It is unfortunately not uncommon for tribunals and courts to have to grapple with provisions of the Immigration Rules which are confusingly drafted, but it is our job to try to ascertain what the drafter intended to achieve and give effect to it so far as possible. In this case it is clear from its terms what the intended effect of element [C] is, but it has been put in the wrong place. Treating it as if it appeared in sub-paragraph (i) (a) does violence to the drafting structure, but I do not believe that that is a sufficient reason not to give effect to it.

That conclusion is reinforced by a consideration of the drafting history of paragraph 276B (v). This can be sufficiently summarised for our purposes as follows:

Two points from that history tend to confirm what I would conclude from the language of sub-paragraph (v) alone:

There is some further support for my conclusion in the Home Office’s Guidance on

I should acknowledge in connection with the previous paragraph that there may be a question whether it is legitimate to refer to the Guidance as an aid to construction. At paras. 10-11 of his judgment in Mahad (Ethiopia) v Entry Clearance Officer [2009] UKSC 16,[2010] 1 WLR 48, Lord Brown disapproved the use of IDIs (the predecessor to Guidance documents) for this purpose; and para. 23 of the judgment of Dyson LJ in MD (Jamaica) v Secretary of State for the Home Department [2010] EWCA Civ 213 is to the same effect. At para. 15 (7) of its judgment in Masood Ahmed the Court referred to Lord Brown’s observations in the context of this very issue. However at para. 42 of his judgment in Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568 Jackson LJ noted a qualification to that approach in cases where a rule is ambiguous and the Secretary of State has in her published guidance adopted the interpretation more favourable to applicants. The intended scope of element [C] is certainly ambiguous, given the mismatch between its terms and its placing within the paragraph, and the interpretation that I believe to be

If I am right up to this point, it must follow that Masum Ahmed, which was concerned with past overstaying, was wrongly decided. I have already acknowledged that normally it would be sufficient to proceed on the basis that a disregard under subparagraph (v) could not have effect to qualify the requirement under the wholly distinct sub-paragraph (i) (a). But in my view that argument must yield to the considerations developed above, which centre on the fact that if element [C] were treated as qualifying sub-paragraph (v) it would have no purpose or effect. I obviously differ from the Court with considerable reluctance, but I note that it was not referred to the drafting history (including the Explanatory Memorandum accompanying HC 667); and, as will appear, the Secretary of State’s position before it was fundamentally different from her position before us.

I have already noted that at para. 15 (3) of its judgment the Court in Masum Ahmed did address the question of what the effect of the second disregard in sub-paragraph (v) was if its conclusion was correct. It said:

“… [T]here is no difficulty in giving sub-paragraph (v) a selfcontained meaning. It makes use of the provisions of paragraph 39E of the Rules. Paragraph 39E is the ‘exceptions for overstayers provision’ which, in effect, grants a 14-day period of ‘grace’ in respect of the lodging of LTR applications in certain circumstances. Under sub-paragraph (v), where paragraph 39E applies, any current period of overstaying as well as any previous period of overstaying after the advent of the amendment to the rules on 24^th November 2016 will be ‘disregarded’. In addition, periods of overstaying of less than 28 days before that date are also disregarded. The reference to previous periods means that, in requiring that the applicant should not ‘be in the United Kingdom in breach of immigration laws’, the sub-paragraph is not looking simply at the applicant’s status at the date of the application, but also looks back in time to his previous immigration status. [Counsel for the claimant] confirmed that the sub-paragraph referred to all previous periods of overstaying. This is, of course, subject to the SSHD's residual discretion.”

What I take the Court to be saying in that passage is that the reference to previous periods of overstaying does have a role to play in sub-paragraph (v) because the requirement itself – element [A] – relates not only to the applicant’s current position but to his or her “previous immigration status”, i.e. to whether they had leave to remain over the entirety of the claimed period of continuous lawful residence. With respect, I am unable to agree with that, even though it appears to have been conceded by counsel for the claimant. As I have already said, the requirement is framed in the present tense – “must not be in the UK in breach of immigration laws” – and the first disregard refers to “current overstaying”. I do not think that it is possible to read it as meaning “must not at any time in the ten-year period relied on have been in the UK in breach of immigration laws”.

Although I have felt it necessary to explain my reasoning in full since I am differing from another division of this Court, in fact it was common ground before us that element [C] in sub-paragraph (v) must be treated as qualifying the requirement in subparagraph (i) (a). In her original skeleton argument, settled by different counsel, the Secretary of State sought to uphold the reasoning in Masum Ahmed. But, in a helpful supplementary skeleton argument submitted shortly before the hearing, Ms Giovannetti and Mr Keith conceded that there was force in the point that “the first and second part of paragraph 276B (v) are addressing different matters” and that it followed that “some of the reasoning in Masum Ahmed is erroneous”. That was a fair concession and correctly made.

However, as Ms Giovannetti pointed out, that conclusion does not directly assist the Appellants because, unlike in Masum Ahmed, their cases do not involve a “previous period of overstaying between periods of leave”, and element [C] of sub-paragraph (v) is accordingly of no assistance to them. Rather, they are current overstayers, and their cases, like Juned Ahmed, involve open-ended rather than book-ended overstaying. Cases of current overstaying are addressed by element [B]. Ms Giovannetti’s concession did not extend to the effect of element [B]. She submitted that it was clear that that element was intended only to qualify the requirement in subparagraph (v) itself, which is concerned with the requirement not to be in breach of UK immigration laws at the date of decision, and not the requirement in subparagraph (i) (a), which was concerned with the requirement to have accumulated ten years’ continuous lawful residence. She accepted that it was clumsy that different parts of sub-paragraph (v) should qualify different requirements; but she said that that was the only possible conclusion both from the language and from the drafting history.

I accept that submission. For the particular reasons which I have given, it is necessary to do violence to the structure of the drafting in order to give effect to element [C]. However, those reasons do not apply to element [B]. Specifically:

It follows that I would regard Juned Ahmed as correctly decided, although Sweeney J’s reasoning is too broadly expressed to the extent that it is treated as applying to both disregards. Where, if I may respectfully say so, the Court went wrong in Masum Ahmed was that it treated the situations covered by the two cases – that is, open-ended and book-ended overstaying – as if they were the same. I quite agree that that is the natural starting-point, but on the arguments before us I do not think it can be the end of the analysis.

I turn to address the Appellants’ counter-arguments.

Mr Gill and Ms Harrison both submitted that once it was accepted that one of the disregards in sub-paragraph (v) qualified the requirement in sub-paragraph (i) (a) it made no sense not to make the same finding as regards the other. That might at first sight seem an attractive submission, but it loses its force in the face of the distinctions between the two elements which I have enumerated above. Element [C] is anomalous, but that is not a reason for making element [B] anomalous as well.

Mr Gill and Ms Harrison also submitted that it did not make sense for the Rules to take a stricter approach to open-ended overstaying than to book-ended overstaying. In both cases the basic situation is the same: the applicant failed to make an application in time and is accordingly an overstayer, but he or she made a subsequent application within 14 (or, previously, 28) days. If the Secretary of State’s policy was to allow a short period of grace where the applicant was subsequently granted leave, why should it be any different where the application remains outstanding? The provisions in question should be construed purposively on the basis that the Secretary of Sate must have intended to provide consistently for equivalent situations.

As to that, I start by saying that, while I accept that the Rules should be construed purposively (and have in fact adopted a highly purposive approach in my construction of element [C]), that does not justify giving them a meaning which they simply do not bear. For the reasons given, I see no room for ambiguity about the intended effect of the first disregard in paragraph 276B (v): on no possible reading can it be construed as qualifying the definition of continuous lawful residence.

However, that is not a complete answer. Mr Biggs submitted that the unavailability of a “paragraph 39E disregard” for the purpose of satisfying the requirement of continuous lawful residence was irrational and/or a disproportionate interference with an applicant’s article 8 rights. He pointed out that there were some circumstances in which an applicant would be positively unable to make a further application until after the previous (in-time) application had been determined. If a period of grace is required in the case of book-ended gaps it is also necessarily required in the case of open-ended overstaying. If he is right about that it might be necessary to give a strained construction to the rule. I should therefore also say that I do not regard it as unreasonable or disproportionate for the Secretary of State to treat book-ended and open-ended overstaying differently. In the case of a book-ended gap the applicant has been granted further leave, and has attained ten years’ residence, since the period of overstaying; and the only reason why the overstaying occurred was that they did not make in-time the ex hypothesi well-founded application which in due course led to the grant of leave. It is in those circumstances unsurprising that the Secretary of State should think it right to allow the period between the expiry of the previous leave and the grant of the further leave to count as continuous lawful residence – assuming of course that the applicant can satisfy the requirements of paragraph 39E. The case of open-ended overstaying is necessarily different because, ex hypothesi, there will have been no grant of leave on the original application: it will have remained, in effect as a place-marker, until the point where it is varied by the making of an application based on ten years’ continuous lawful residence. That is an essentially different situation from one where the application has in fact been granted. It is also one that is capable of being abused, since an applicant could in principle make a wholly unfounded application as he or she approached the end of the ten-year period and count on the time taken to determine it (perhaps prolonged by a variation) in order to get to the point where an application under paragraph 276B could be made. The facts of the present cases illustrate how that could be done, though of course I express no view about the merits of the particular applications on which the Appellants rely. The Appellants argued that if the Secretary of State was concerned about that the remedy was in her own hands: she could, for example, alter the practice of permitting variation, or simply determine applications more promptly. But even if that were a complete answer to the risk of abuse (which I am not persuaded that it is) it is not the fundamental point. There is a plain difference between the situations where an applicant has attained ten years’ residence with leave and one where they have attained it without leave, albeit with a pending application, and it is in my view reasonable for the Secretary of State to treat the two situations as distinct.

I should for completeness mention that Ms Giovannetti placed some reliance on the decision of this Court in MD (Jamaica), to which I have already had occasion to refer. That case was concerned with the rules relating to long residence as they stood in

In conclusion, therefore, I would hold that the requirement of continuous lawful residence in paragraph 276B (1) (a) is not qualified by the paragraph 39E disregard in element B of paragraph 276B (v).

In his judgment Dingemans LJ considers the article 8 issues raised in Hoque, Kabir and Mubarak. I need not set out the facts, which appear in his judgment, but I will identify in summary form why I agree with his conclusion that their appeals on this ground should be dismissed.

As regards Hoque and Kabir, the essential points are:

Mr Mubarak is nearer the line, because he came so close to the necessary ten years’ residence and because the curtailment of his earlier leave was not his fault. I agree with McCombe LJ that that makes his something of a hard case. But in truth it does no more than to render him a rather nearer near-miss than Mr Hoque. The fact remains that he did not qualify for ILR under the Rules, and UTJ Gill was in my view right to hold that the Secretary of State’s decision that the matters on which he relied under article 8 did not create a real prospect of success in the FTT was not irrational. Mr Malik argued that that was not the right question in a challenge to a decision under paragraph 353, but there is binding authority of this Court to the contrary: see R (MN (Tanzania)) v Secretary of State for the Home Department [2011] EWCA Civ 193, [2011] 1 WLR 3200.

Dingemans LJ also considers the complex procedural history in Arif. I likewise agree with his conclusions in that case.

It will be apparent from the foregoing, and from my Lords’ judgments, that the cases of Hoque, Kabir and (potentially) Arif raised a serious point of law about the meaning of paragraph 276B, and I would accordingly grant Mr Hoque and Mr Kabir permission to appeal. However, for the reasons given I would find against them on that point. Accordingly, since Dingemans LJ has reached the same conclusion, and I have agreed with him on the remaining issues, their appeals must be dismissed, notwithstanding McCombe LJ’s contrary conclusion about paragraph 276B. In Arif the substantive issue would only be open to the Appellant if he were entitled to permission to appeal out of time against the decision of Elisabeth Laing J or to permission to appeal against the refusal of Saini J to reconsider her decision. For the reasons given by Dingemans LJ, I would not grant either.

The case for granting permission to appeal in Mubarak is less clear-cut, but on balance I would do so. However, for the reasons already given the appeal must be dismissed.

This Court has very frequently in recent years had to deal with appeals arising out of difficulties in understanding the Immigration Rules. This is partly a result of their labyrinthine structure and idiosyncratic drafting conventions but sometimes it is a simple matter of the confused language and/or structure of particular provisions. This case is a particularly egregious example. The difficulty of deciding what the effect of paragraph 276B (v) is intended to be is illustrated by the facts not only that this Court itself is not unanimous but that all three members have taken a different view from that reached by a different constitution in Masum Ahmed. Likewise, the Secretary of State initially sought to uphold Masum Ahmed – contrary, it would seem to her own Guidance – but, as we have seen, shortly before the hearing executed a volte face. (This illustrates a different vice, also far from unique, that the Home Office seems to have no reliable mechanism for reaching a considered and consistent position on what its own Rules mean.) Of course mistakes will occasionally occur in any complex piece of legislation, or quasi-legislation; but I have to say that problems of this kind

Having carefully considered the rival arguments, for which I express my gratitude to counsel, as to the proper construction of para. 276B of the Immigration Rules (“the Rules”) (in the form applicable to the appeals in the present case), I find myself in agreement with the arguments of Mr Manjit Gill QC on the point, as presented on behalf of the Appellant, Mr Hoque. Refinements and nuances to those arguments came from other counsel on behalf of the Appellants, but I find it convenient to adopt largely the points made by Mr Gill from which, as it seemed to me, other submissions (very helpful though they were) did not greatly differ. I regret, therefore, that I am unable to agree with my Lords, the Vice-President and Dingemans LJ on the point.

I am grateful to the Vice-President for his exposition of the facts of the cases and for his quotations of the material parts of the Rules.

The part of the Rules with which we are concerned is directed to who should qualify for indefinite leave to remain in the United Kingdom (“ILR”) by virtue of long residence. It begins with definitions in para. 276A. Para. 276B(i)(a) (there is no (b)) then tells the reader that the basic qualification requirement for achieving ILR is 10 years continuous lawful residence in the UK. Para. 276A defines “continuous residence” and “lawful residence”. In the basic case, of the type mentioned by Underhill LJ in his paragraph 8, the application of these provisions will cause no problem. Paras. 276C and 276D provide that leave may be granted or will be refused respectively, depending upon whether or not each of the requirements in para. 276B are or are not met. I agree that each of sub-para. (i) to (v) of that para., therefore, are largely separate requirements. Nonetheless, I see no reason why the tenor of those requirements should not be drawn from that paragraph as a whole and the concepts that it is seeking to define and/or qualify. It would be odd to isolate completely one part of a single paragraph from another. Normally, one construes a document, and a fortiori one clause in a document, with regard to its contents as a whole, rather than by its individual parts in isolation. Indeed, the Secretary of State’s presently favoured construction requires para. 276B(i) to be read with part (but not the whole) of para. 276B(v).

The five requirements set out in para. 276B (in summary) are: (i) 10 years continuous lawful residence; (ii) no public interest reasons rendering it undesirable to grant ILR; (iii) the case does not fall for refusal under “the general grounds for refusal”; (iv) sufficient knowledge, on the applicant’s part, of the English language and of life in the UK; (v) the applicant is not “in breach of the immigration laws” (i.e. without

The first sentence of para. 276B(v) (dealing with “any current period of overstaying”) says expressly that “breach of immigration laws” by reason of “any current period of overstaying” will be “disregarded” where para. 39E applies, i.e. in a case where the new application is made within the specified short time after expiry of previous leave. In other words, for those purposes the applicant is not treated as being in the UK

“without leave”. This must be so because the relevant part of the definition of “breach of the immigration laws”, in para. 6, is that it means “without valid leave where such leave is required …”. It seems to me clear that for the purpose of that paragraph he is to be treated, in those circumstances, as having existing leave within the meaning of para. 276A(b)(i). If so, it should mean that his residence continues to be “lawful” for the purposes of para. 276B(i)(a) [sic]. Given the approach that one is required to adopt in seeking to understand the Rules, in my judgment, the ordinary reader of para. 276B would be in difficulty in distinguishing the idea of “lawful residence” in 276B(i) from not being “in the UK in breach of immigration laws” in 276B(v) by being resident here.

Strangely and very belatedly (for the first time in the supplementary skeleton argument of 22 July 2020), the Secretary of State now accepts that the second sentence of para. 276B(v) (dealing with “[a]ny previous overstaying between periods of leave” and saying that this will “also be disregarded”) “is intended to apply when calculating 10 years continuous lawful residence for the purpose of paragraph 276B(i)” (para. 19 of the skeleton argument). This consequence is not accepted, however, as being the result of the first sentence, dealing with current overstaying, notwithstanding the use of the characteristically linking words “will also be disregarded” in the second sentence.

There was no glimmer of such a refinement in the Secretary of State’s argument at any earlier stage of these proceedings, nor was there such in the arguments in the Masum Ahmed case. It seems to me that the conjunction of “will be disregarded” and “will also be disregarded” in the two sentences of sub-para. (v) naturally fall to be read as being directed to the same matters. The idea that the two phrases have different applications and effects is an odd one.

In paragraph 18 of the new skeleton argument, the Secretary of State now “recognises that there is force to the point made in the skeleton argument on behalf of Mr Arif … to the effect that “the first and second part of paragraph 276B(v) are addressing different matters”. However, that “recognition” is not (as argued for Mr Arif) that the two sentences are simply treating the “different matters” of current and past periods of overstaying in the same way for the purposes of para. 276B as a whole. Rather it is said to lead to the different argument that the two sentences, while using identical words, are directed to different aspects of paragraph 276B and that the first sentence (in contrast to the second) does not affect the calculation of “continuous lawful residence” for the purpose of sub-para. (i).

In my judgment, no ordinary reader of para. 276B would read it in such a tortuous fashion. The two “disregards” would naturally be treated as going to the same matters in the case of current and previous periods of overstaying respectively. It is indicative that the construction of this paragraph now advanced by the Secretary of State is indeed so tortuous that it had not been presented to anyone in this long litigation until six days before the hearing of these present appeals. Indeed, it is recognised that the argument is inconsistent in part with the Secretary of State’s own argument before this court in Masum Ahmed. Further, I do not believe that such a reading of the paragraph even occurred to the court as being a possible, let alone the natural one, prior to sight of the Secretary of State’s new skeleton argument received during the morning of the first day of the hearing.

We know that,

“The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State’s administrative policy.”

(per Lord Brown of Eaton-under-Heywood in Mahad v ECO [2009] UKSC 16 at [10])

Clearly, until 22 July 2020 the Secretary of State did not regard the interpretation now advanced as being “the natural and ordinary meaning” of the Home Department’s own policy. Until about 10.43 on the first morning of the present hearing (28 July 2020), when the new skeleton argument actually reached us, the court did not know that this new reading of para. 276B(v) was even being advanced even as a possible construction of that provision, let alone as being the “natural and ordinary” one. In my view, that is not surprising. There is no hint of such a meaning in any of the underlying materials before the deployment of the new argument.

Indeed, as Underhill LJ recognises in paragraph 35, the Secretary of State’s argument now requires us to treat the last sentence of para. 276B as having been “put in the wrong place” and as properly belonging to 276B(i) rather than to 276B(v) where one actually finds it.

In my judgment, the natural and ordinary meaning of the relevant paragraphs is far more readily that put forward by Mr Gill (and other appellants), which I have sought to summarise above. It is also supported by the history of the Rules, the changes made to them from time to time and by the Explanatory Memoranda of those changes to which we were taken in some detail by Mr Gill. I believe that is not contradicted by the so-called Explanatory Memorandum which introduced para. 276B(v) in its present form. I do not propose to dwell extensively upon these historical materials but will try to point out those features which seem to me to be the most significant.

The first version of para. 276B to which we were taken was in force until 1 October 2012 and had no sub-para. (v). The paragraph stopped with (iv), containing (then as now) the requirement of knowledge of English language and of UK life.

It was a Rule in this form that came before this court in MD (Jamaica) v SSHD [2010]

As Dyson LJ (as he then was) said in MD at [25], the definition of lawful residence in para. 276A(b) (in that form) was exhaustive and meant continuous residence pursuant to the three categories of case there specified. As he had said at [24], a different result would have required “some express provision or …necessary implication”. Since then, however, sub-para. (v) has been added to para. 276B and, while I would not perhaps go so far as Mr Gill in saying that this makes the decision in MD “irrelevant”, it certainly makes our task of construing para. 276B a very different one.

In 2012, the Rules changed. Sub-para. 276B(v) was added (with effect from 1 October 2012) in this form:

“(v)

the applicant must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded.”

No distinction is drawn there between a current and a previous period of overstaying. The “Purpose of the Instrument” was explained in the Explanatory Memorandum (of 13 June 2012) as including provision:

“To introduce a consistent approach to dealing with applications for leave to remain from migrants whose previous period of leave has expired, by enabling migrants whose previous period of leave has expired to qualify for leave to remain where the application is made within 28 days of the expiry of their previous leave.”

It is difficult to see how this provision could have treated those with a current period of overstaying as being in breach of immigration laws, provided they applied within the 28-day period allowed. In my judgment, for the purposes of para. 276B, if one is not present in breach of immigration laws, because the period since expiry of leave is disregarded (and, therefore, to be treated as present with leave – para. 6) it is odd to say that nonetheless one is not present lawfully in the UK for the purpose of calculating the 10-year period under para. 276B(i)(a).

Mr Gill argued, in my view persuasively, that under these new rules, there might be many cases in which it was not possible to submit an “in time” application for further leave to remain. Typically, this would arise where an applicant was seeking administrative review of refusal of further leave. The application for review had the

The next change that we were shown was that taking effect on 6 April 2013. The new para. 276B(v) was changed to read as follows:

“(v)

the applicant must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded, as will any period of overstaying between periods of entry clearance, leave to enter or leave to remain of up to 28 days and any period of overstaying pending the determination of an application made within that 28 day period.”

We were shown nothing in the Statement of Changes (dated 14 March 2013) directed to this amendment, save for a statement in para. 90 of the intended change itself.

Presumably, consistently with the new argument, it would be contended for the Secretary of State that the single sentence, adding the clause beginning with the words

“as will…” had different meanings for the first part (being the original sub-para. (v)) and for the second part as then added. Thus, this second part of the sentence would also have had to be treated as being “in the wrong place” and should have been added to sub-para. (i) also. Can that really be so? I think not. I have not previously come across any such provision which required one to transpose part of a single sentence in a sub-paragraph into a different part, four sub-paragraphs higher up the document, in order to find the natural and ordinary meaning of the provision as a whole.

The final version of para. 276B to which we were directed, and which applies to the present appellants, was introduced as from 24 November 2016.They were set out and explained in a Statement of Changes of 3 November 2016. The same version of the Rules introduced para. 39E. This new provision (para. 39E) was incorporated by reference into both halves of the new para. 276B(v) and, in effect, curtailed the period of disregard, for both current and past overstaying, to cases where the fresh application was made within 14 days of the expiry of previous leave or such leave as extended pending an appeal or administrative review.

The change effected by the introduction of para. 39E was addressed in paras. 7.45 to 7.49 of the Explanatory Statement which related not only to applications for further leave by those claiming ILR on the ground of long residence. The most material paragraphs of the statement for the purposes of para. 276B of the Rules are paras. 7.48 and 7.49. These read as follows:

“7.48

For those whose previous application was in-time but decided before their leave expired, or was made out of time but permitted by virtue of the provision outlined in paragraph 7.56 (Footnote: ⁶), the 28-day period will be reduced to within 14 days of:

•

The refusal of the previous application for leave.

•

The expiry of the time-limit for making an in-time application for administrative review or appeal (if applicable).

•

Any administrative review or appeal being concluded, withdrawn or abandoned or lapsing

This is to ensure that individuals to whom these circumstances apply also have 14 days to make a further application.

7.49.

Changes have also been made to the requirements for applicants for indefinite leave to remain to have completed a period of continuous lawful residence in the UK. These ensure that the Secretary of State will disregard any period of overstaying between periods of leave which, at the time of the further application was made, fell to be disregarded under the previous 28 day period or the exceptions identified above. This is for reasons of fairness.”

While we do not know to what the missing para. 7.56 would have referred, it seems that the addition of the second sentence of sub-para. 276B(v) may be being explained as providing a “disregard” of previous periods of overstaying between grants of leave which, as is common ground in this case, would qualify sub-para. 276B(i)(a). However, it seems to me that current periods of overstaying might well have been within para. 7.48 and thus included in the phrase in para. 7.49 “or the exceptions identified above”. While the drafting of the explanation is singularly opaque, it does not seem to me that it is suggesting that the new sentence added to sub-para. (v) is indicating that the change would import a different effect into the sub-para. from that of the old rule (quoted above) or that the two sentences of the new rule had materially different effects one from the other. The statement can only be described as unclear and confusing. It was for this reason that I called the document the “so-called” Explanatory Memorandum earlier in this judgment.

In my judgment, this final Statement of Changes and its Explanatory Memorandum, leading to the current version of the Rules, therefore, do not greatly assist the current debate.

In my judgment, Miss Harrison QC and Mr Jafferji for Mr Arif were correct in their submission, in paragraph 45(vi) of their skeleton argument, that the new version of para. 276B(v) not only added the new version of the second part of the provision but also changed the wording of the first part dealing with current overstaying. The new version provided that the entire period of current overstaying (as opposed to the 28day period only in the previous version) would be disregarded in a case where para. 39E applied. This brought both parts of the provision into line in cases where para. 39E applied. It would be most strange that the two parts of the provision, changed at the same time, should be intended to apply the “disregards” to different aspects of the paragraph as a whole. One would have expected some signal of such an intention in para. 276B itself (or at least in the Explanatory Memorandum). There is none.

Finally, Mr Gill referred us to the parallel rules governing ILR under the “points based system”. There the Rules provide (in para. 245 AAA (a)) a definition of

“References to “continuous period” “lawfully in the UK” [as meaning] … residence in the UK for an unbroken period with valid leave and a period shall be considered unbroken where: …

(iii)

The applicant has any current period of overstaying disregarded where paragraph 39E of these Rules applies; and

(iv)

the applicant has any previous period of overstaying between periods of leave disregarded where: the further application was made before 24 November 2016 and within 28 days of expiry of leave; or the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.”

In Masum Ahmed at 15(6) the court referred to these provisions as being a contrast to para. 276B where “…the Rules expressly [provide] that ‘continuous periods’ of lawful residence in the UK shall be considered ‘unbroken’, notwithstanding periods of overstaying, where paragraph 39E applies”. The court’s quotation of para. 245AAA(a) includes sub-para. (iv), but not (iii). This is perhaps understandable as that case concerned periods of previous overstaying between periods of leave. However, to me, this provision does not show a contrast with para. 276B at all. It is a similarity. It makes similar provision for “disregards” of both types of overstaying (“current” and “previous”, without distinguishing between the two). I see no difference in para. 276B.

In my view, all these provisions are designed to ensure that applications for new leave to remain, made on expiry of an old period of leave, should be made promptly and within the period of grace provided for in para. 39E. Once an application is made promptly, the baton then passes to the Secretary of State to deal with the applications. If they are dealt with promptly, no problem arises. The real problem is where, as in some of these cases, there are long time lags between application and decision and a new application is then made which is treated as a variation of the first application. The remedy for that inconvenience is not to twist the wording of the existing rules but to amend them.

Miss Giovannetti QC, for the Secretary of State, in a customarily attractive argument, contended that the two sentences of para. 276B(v) have two separate effects, as is succinctly stated in paragraph 19 of her skeleton argument (quoted above). She says that the first part of (v) is only intended to benefit a person whose application is made after having clocked up already the necessary 10-year period for the purposes of subpara. (i). It then allows for the “disregard” of any short period of overstaying after expiry of an old leave, to avoid the applicant being in breach of immigration laws, provided that the application is made within the 28-day (now 14 day) period of grace. It should not allow an applicant with less than 10 years lawful residence to clock up the 10-year period while waiting for the new application to be dealt with and the Rules were not intended so to provide.

One sees the force of that submission, or at least the convenience of it for the Secretary of State, in cases where there are long delays in the department in dealing with applications, which can then be varied by yet further applications. However, the remedy is in the Secretary of State’s own hands. If an application is made for further leave to remain after expiry of a former period of leave and before 10 years residence is achieved, it would have to be on other grounds. Such an application was made, for example, by Mr Hoque, who asked again for further leave as a Tier 1 (Entrepreneur) Migrant on 20 July 2016, within the 28-day period then prevailing. (An earlier application had been rejected because of a technical failure to provide evidence to satisfy the requirements of the points-based system.) With the July 2016 application still extant, which had not been dealt with in the meantime by the Secretary of State, he applied on 13 October 2017 for ILR outside the Rules which took effect as a variation of the July 2016 application. Then while the application, as so varied, was still extant, he reached the period of 10 years residence and submitted (on 12 January 2018) a third application for ILR under the long residence provisions; that again took effect as a variation of the first application of July 2016. The July 2016 application, by then varied twice, was refused by the Secretary of State on 18 May 2018.

If Mr Hoque’s application had been dealt with timeously, there would have been no question of him having achieved the necessary 10-year residence period. As it was, nothing at all happened in the 15-month period between 20 July 2016 and the submission of his new application on 13 October 2017, except Mr Hoque’s residence continued as before. As Mr Gill submitted, the possibility of making further applications during the pendency of a first application, with the consequences as in

Finally, I would add a few words about the Secretary of State’s Guidance issued to caseworkers for the purposes of helping them to decide applications for ILR submitted on the basis of long residence. No counsel took us to the detail of this material, which is included in the bundles before us for the appeal. Rightly, they did not focus on this in their arguments on construction of the Rules because, as Lord Brown made clear in Mahad,the Secretary of State’s intention in formulating the Rules is not to be discovered from these. However, there is a qualification to this, noted by Jackson LJ (with whom Longmore LJ and Vos LJ (as he then was)) agreed in Pokhriyal v SSHD [2013] EWCA Civ 1568. Jackson LJ said:

“42 If there is ambiguity in Immigration Rules and the Secretary of State publicly declares that he/she will adopt the more lenient interpretation, then tribunals and courts may hold the Secretary of State to that assurance. This is exemplified by the Court of Appeal’s decision in Adeyodin v Secretary of State for the Home Department [2010] EWCA Civ 773 … At paragraph 70 Rix LJ said that in a situation of genuine ambiguity, it was legitimate to derive assistance from the executive’s formally published guidance, including IDIs 43. I would respectfully agree with paragraph 70 of Rix LJ’s judgment in Adeyodin.I would, however, add this comment. I do not think it is possible for the Secretary of State to rely upon extraneous material in order to persuade a court or tribunal to construe the rules more harshly or to resolve an ambiguity in the Government’s favour. The Secretary of State holds all the cards. The Secretary of State drafts the rules; the Secretary of State issues the IDIs and guidance statements; the Secretary of State authorises the public statements made by his/her officials. The Secretary of State cannot toughen up the rules otherwise than by making formal amendments and laying them before Parliament. That follows from the Supreme Court’s reasoning in R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33 …”

Mr Gill’s primary submission to us on the guidance was that he did not need it for the purpose of his case, and I agree with him; he does not. However, in reply, he submitted that if we were to regard the rule in question as ambiguous, then the guidance may assist: see Pokhriyal above. Once that is done one can see from at least one of the examples given (Example 4 on p. 16 of the version published for Home Office staff on 3 April 2017) that it treats a current period of overstaying as “lawful residence” for the purpose of para. 276B. I agree.

At the very best, in my judgment, the Secretary of State’s new argument before this court serves only to show that the rule may be ambiguous. (In my view, ambiguity only comes in if one tries to distort the language of the rule in the manner now suggested.) If it is ambiguous, this guidance does not help in supporting the construction now advanced. However, for the reasons given by Mr Gill (and others for the Appellants) we do not need to go there. There is also a telling absence from the Guidance to caseworkers that they should apply para. 276B in the manner now suggested by the Secretary of State. At best, this poorly drafted provision is not easy to construe and if it had been intended that two “disregards” appearing in the very same sub-sub- paragraph were to have different effects for different parts of the paragraph as a whole one might have expected that to be spelled out clearly for the guidance of Home Office staff in their work. However, the omission is not surprising, given that that construction of the rule was only advanced for the first time on 22 July 2020.

For these reasons, I would have granted permission to appeal in each of these cases, in view of the difficult questions that the cases posed on construction of the rules, and I

I respectfully agree, however, with the conclusion reached by Dingemans LJ in respect of the Article 8 arguments in each case. The result in Mr Mubarak’s case seems to me to be particularly harsh, but the room for success in Article 8 cases such as his has become very slender indeed. Given the majority view, on the construction of the Rules, those appeals for which I would still give permission, and which I would have allowed, now fall to be dismissed.

I entirely agree with what is said by Underhill LJ in his postscript in paragraph 59. The problem, as he says, goes further than structure and presentation. After many years of trying to understand and construe infelicitous drafting in various parts of these Rules and in simply trying to see how they are supposed to work in practice, I think that there may be no solution other than to discard the present Rules and to start again. It may take a considerable time to achieve, but the result should enable officials, migrants (and their advisers) and the Tribunals and courts to understand what is going on and should reduce the volume of litigation. That result, it seems to me, would be well worth it.