Caryn Toh is a Solicitor in the Immigration Department of Axiom Stone Solicitors, a full-service legal practice with offices in London (Edgware, Mayfair and Harrow) and Birmingham.
In this special column she addresses questions around Long Residence Indefinite Leave to Remain (ILR) applications.
Indefinite Leave To Remain (ILR) will be granted to those who have satisfied the criteria for ten years continuous lawful residence in the UK under different leaves and meet the other requirements listed under Paragraph 276B of the Immigration Rules.
But firstly, let’s look into the definition of ‘continuous lawful residence’:
“Lawful residence” is defined under Paragraph 276A(b) of the Immigration rules as follows:
Holding a valid leave to enter or remain in the UK; or
Issued with a temporary admission or immigration bail and leave to enter or remain was subsequently granted;
or an exemption from immigration control (e.g. Sovereigns, Heads of State, diplomats travelling through the UK to or from a country where they are accredited etc)
In the recent case of Hoque & Ors v SSHD Civ 1357, the Court of Appeal’s demonstrated in relation to gaps that might affect in 10 years continuous lawful residence applications. The Court shed some light on the distinction between ‘book-ended gap’ residence (any periods of past overstaying or overstaying between periods of leave), may be allowed where an application is made within 14 days of the refusal or within 28 days before 24th November 2016, and an ‘open-ended gap’ (ongoing overstaying) residence and their implication in relation to the gaps in 10 years continuous lawful residence.
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The appellants had all come to the UK on student visas and were claimed to be entitled to ILR on the basis of 10 years continue long residency in the UK.
Their applications for further leave to remain were refused and they appealed against the decision, which at that point they became overstayers in the UK. However, the appellants subsequently made further applications for leave to remain under the headings of 'Exceptions for overstayers' and later amended their applications to ILR based on their ten years of residence in the UK.
However, the applications were refused by the Home Office on the basis that they had not met the requirement of 10 years continuous lawful residence in the UK in accordance to the Immigration Rules (Para 276B(i)(a)).
The appellants argued that the said requirements were met because they were not in breach of immigration laws during the 10 years and any current period of overstaying should be disregarded”.
The appellants argued that they fell within the scope of that exception provided by Paragraph 39E of the Rules. It was claimed that their period of overstaying should be disregarded and they therefore have accumulated 10 years “continuous lawful residence. Additionally, the appellants also contended that the refusal of the ILR applications was in breach of their Article 8 of the European Convention on Human Rights (“ECHR”).
The Court of Appeal held that none of the appellants met the requirements in the Immigration Rules because they had open-ended overstaying (any periods of past overstaying or overstaying between periods of leave).
Their argument under Article 8 of the ECHR also failed because their human rights claims had been lawfully certified as ‘clearly unfounded’.
With regards to the Appellants claim under the scope of the exception provided by paragraph 39E of the Immigration Rules, the court decided that they did not and suggested that the Immigration Rules need to be amended to be clearer on the point of overstaying and lawful residence.
Book-ended overstaying, such as overstaying between periods of leave to remain may be allowed where paragraph 39E of the immigration Rules applies (the 14 day ‘grace’ period). With that said, unless the applicant has been in the UK for at least 10 years on a lawful and continuous residence basis (and the requirements of 39E apply) any period of current overstaying will not be allowed.
It is worth mentioning that the Court of Appeal did not find the Secretary of State unreasonable or disproportionate to treat book-ended and open-ended overstaying differently”.
In summary, the Court of Appeal indicates that the Immigration Rules need to be amended to be clearer on the point of overstaying and lawful residence. With that said, unless the applicant has been in the UK for 10 years or more on a lawful and continuous residence basis any period of current overstaying will not be allowed even if it was justified.
Therefore, the appellants who have open-ended gaps cannot rely their claims under Paragraph 39E to meet the 10 years continuous lawful residence criteria.
by Caryn Toh
Caryn Toh is a Solicitor in Immigration Department of Axiom Stone Solicitors. She has extensive experience in successfully applying for all types of immigration applications to appeals, Judicial reviews and challenging orders of deportation.
*Info: For legal advice and assistance for your Long Residence ILR application, please feel free to contact Caryn: CT@axiomstone.co.uk
