Hoque and Others v Secretary of State for the Home Department and Another
| Jurisdiction | England & Wales |
| Judge | Underhill,McCombe,Dingemans LJJ |
| Judgment Date | 22 October 2020 |
| Neutral Citation | [2020] EWCA Civ 1357 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 1357
COURT OF APPEAL
Underhill (Vice-President of the Court of Appeal (Civil Division)), McCombe and Dingemans LJJ
Mr M Gill QC and Mr E Nicholson instructed by City Heights Solicitors, for Mr Hoque;
Mr M Biggs instructed by Capital Solicitors LLP, for Mr Kabir;
Ms S Harrison QC, Mr Z Jafferji and Mr A Rehman instructed by Lawfare Solicitors, for Mr Arif;
Mr Z Malik instructed by Syed Shaheen & Partners, for Mr Mubarak;
Ms L Giovannetti QC and Mr B Keith instructed by the Government Legal Department, for the Secretary of State.
AA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 773; [2011] 1 WLR 564; [2010] Imm AR 704; [2011] INLR 1
Arthur JS Hall & Co v Simons [1998] EWCA Civ 3539; [1999] 3 WLR 873
CL v Secretary of State for the Home Department [2019] EWCA Civ 1925; [2020] 1 WLR 858
Denton v TH White Ltd [2014] EWCA Civ 906; [2014] 1 WLR 3926; [2015] 1 All ER 880
Gregory v Thames Magistrates' Court [2019] EWHC 2125 (Admin)
JH (Zimbabwe) v Secretary of State for the Home Department; R (on the application of JH (Zimbabwe)) v Asylum and Immigration Tribunal and Secretary of State for the Home Department[2009] EWCA Civ 78; [2009] Imm AR 499; [2009] INLR 385
MD (Jamaica) v Secretary of State for the Home Department [2010] EWCA Civ 213; [2010] Imm AR 526; [2010] INLR 580
Mahad (previously referred to as AM) (Ethiopia) and Others v Entry Clearance Officer; Muhumed (previously referred to as AM (No. 2)) (Somalia) v Entry Clearance Officer[2009] UKSC 16; [2010] 1 WLR 48; [2010] 2 All ER 535; [2010] Imm AR 203; [2010] INLR 268
Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568; [2014] Imm AR 711; [2014] INLR 291
R (on the application of Alvi) v Secretary of State for the Home Department [2012] UKSC 33; [2012] 1 WLR 2208; [2012] 4 All ER 1041; [2012] Imm AR 998; [2012] INLR 504
R (on the application of Cart) v Upper Tribunal; R (on the application of MR (Pakistan)) v Upper Tribunal (Immigration and Asylum Chamber) and Secretary of State for the Home Department[2011] UKSC 28; [2012] 1 AC 663; [2011] 3 WLR 107; [2011] 4 All ER 127; [2011] Imm AR 704
R (on the application of Goring-on-Thames Parish Council) v South Oxfordshire DC [2018] EWCA Civ 860; [2018] 1 WLR 5161
R (on the application of Harkins) v Secretary of State for the Home Department [2014] EWHC 3609 (Admin); [2015] 1 WLR 2975
R (on the application of Juned Ahmed) v Secretary of State for the Home Department (para 276B — ten years lawful residence) [2019] UKUT 10 (IAC)
R (on the application of MN (Tanzania)) v Secretary of State for the Home Department [2011] EWCA Civ 193; [2011] 1 WLR 3200; [2011] 2 All ER 772
R (on the application of Masum Ahmed) v Secretary of State for the Home Department [2019] EWCA Civ 1070; [2020] 2 All ER 73; [2019] Imm AR 1316; [2019] INLR 715
Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58; [2018] 1 WLR 5536; [2019] 1 All ER 1007; [2019] Imm AR 452; [2019] INLR 233
Secretary of State for the Home Department v SS (Congo) [2015] EWCA Civ 387; [2016] 1 All ER 706; [2015] Imm AR 1036; [2015] INLR 683
ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6; [2009] 1 WLR 348; [2009] 3 All ER 976; [2009] INLR 310
Civil Procedure Rules 1998, rule 52
European Convention on Human Rights, Article 8
Immigration Act 1971, sections 3C, 3D & 11
Immigration Rules HC 395 (as amended), paragraphs 39E, 276A-276D, 322 & 353
Nationality, Immigration and Asylum Act 2002, sections 94, 117A & 117B
Immigration — long residence — paragraph 276B of the Immigration Rules — continuous lawful residence — exceptions to conditions for LTR on long residence grounds — overstaying — drafting error in paragraph 276B(v)
The Claimants H, K and M, nationals of Bangladesh, and A, a citizen of Pakistan, each entered the United Kingdom as a student and received further grants of leave to remain (“LTR”). Subsequently, they were each refused further LTR in the United Kingdom. In each case, their last period of limited LTR expired before they had accumulated ten years lawful residence. Each Claimant, within 28 days of the refusal of their most recent application for LTR, made a further application for LTR, which they later varied to become an application for indefinite leave to remain (“ILR”) under the long residence provisions of the Immigration Rules HC 395 (as amended). Since those applications were made following the expiry of their previous LTR, they did not attract the operation of section 3C of the Immigration Act 1971 and accordingly the Claimants were overstayers. The varied applications for ILR were pending at the tenth anniversary of their arrival in the United Kingdom. The Secretary of State for the Home Department refused each application for ILR on the ground that the Claimant did not meet the requirements of the Immigration Rules. She certified H's claim as clearly unfounded under section 94 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) and, in the cases of M and K, she refused to treat further submissions as a fresh claim under paragraph 353 of the Immigration Rules. The effect was that H, M and K had no right of appeal to the First-tier Tribunal (“FtT”). They were each refused permission to apply for judicial review of the Secretary of State's decision and they sought to appeal against those decisions. In A's case, the FtT dismissed his appeal against the refusal of ILR and he was refused permission to appeal to the Upper Tribunal (“UT”). He applied for judicial review of the refusal of permission. In the Administrative Court, Elisabeth Laing J dismissed the claim and A's application to set aside that dismissal was refused by Saini J. A sought permission to appeal against those decisions and required an extension of time in which to do so.
In the instant proceedings, the Claimants' applications for permission to appeal were directed to be heard together on an inter partes basis, with the appeal to follow if permission was granted. The appeals of H, K and A turned on the correct interpretation of paragraph 276B of the Immigration Rules, which set out the requirements to be met by an applicant for ILR on the ground of long residence. The primary condition set out in paragraph 276B(i)(a) was that an applicant must have at least ten years continuous lawful residence in the United Kingdom. Paragraph 276B(v) provided that the applicant must not be in the United Kingdom in breach of immigration laws (“element [A]”), except that, where paragraph 39E of the Rules applied, any current period of overstaying would be disregarded (“element [B]”), and any previous period of overstaying between periods of leave would 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 the Rules applied (“element [C]”). Paragraph 39E defined the circumstances in which the fact that an applicant for further leave to remain was an overstayer may be disregarded.
H, K and A submitted that the period of overstaying since the expiry of their last period of limited LTR and until the date of decision fell to be “disregarded” pursuant to element [B] of paragraph 276B(v) because that period constituted “current overstaying”. They argued that the effect of the disregard was that the period in question must be treated as continuous lawful residence, with the result that the requirement in paragraph 276B(i)(a) was satisfied. In the alternative, H and K argued that the refusal of ILR breached their rights under Article 8 of the ECHR. M relied only on Article 8 of the ECHR. The Article 8 issues were case specific and raised no issues of principle. The Secretary of State submitted that the various subparagraphs of 276B constituted self-contained requirements and that the disregard in element [B] of subparagraph (v) on which the Claimants relied could have no effect on the requirements of subparagraph (i)(a). In a supplementary skeleton argument submitted shortly before the hearing, the Secretary of State did concede however that there was force in the point that “the first and second part of paragraph 276B(v)” were “addressing different matters”.
Held, refusing permission to appeal in the case of A; granting permission to appeal in the cases of H, K and M; and dismissing the appeals of H, K and M:
(1) (Lord Justice McCombe dissenting) It was clear from the structure and language of paragraph 276B that the requirements identified at subparagraphs (i)-(v) were intended to be free-standing and self-contained: R (on the application of Juned Ahmed) v Secretary of State for the Home Department (para 276B — ten years lawful residence)[2019] UKUT 10 (IAC) and R (on the application of Masum Ahmed) v Secretary of State for the Home Department[2019] EWCA Civ 1070 considered. It would normally follow that any disregard provided for in a particular subparagraph would only relate to that requirement and the disregards in subparagraph (v) could not be invoked to remedy an inability to satisfy the requirements of subparagraph (i)(a). It was not however that straightforward. Subparagraph (v) was expressed in the present and was addressed to the applicant's status at the moment of decision. That was so as a matter of language but was also consistent with the first disregard in element [B], being concerned with “any ‘current’ period of overstaying”. Subparagraph (i)(a), by contrast, required that the applicant “has had” ten years continuous lawful residence, which did not require that the lawful residence was continuing at the date of decision. The purpose of the requirement in subparagraph (v) was evidently to ensure that...
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