R Masum Ahmed v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Floyd,Lord Justice Haddon-Cave |
| Judgment Date | 21 June 2019 |
| Neutral Citation | [2019] EWCA Civ 1070 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C2/2019/0104 |
| Date | 21 June 2019 |
[2019] EWCA Civ 1070
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
UPPER TRIBUNAL (IMMIGRATION & ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE GLEESON
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Floyd
and
Lord Justice Haddon-Cave
Case No: C2/2019/0104
Mr Jayed Sarker (instructed by Law Valley Solicitors) for the Appellant
Mr Thomas Tabori (instructed by Government Legal Department) for the Respondent
Hearing date: 13 th June 2019
Approved Judgment
Lord Justice Floyd AND
Introduction
The Applicant seeks permission to appeal (“PTA”) against a decision of UTJ Gleeson dated 27 th September 2018 refusing permission to apply for judicial review and certifying the claim as totally without merit (“TWM”). The original substantive decision under challenge is the Respondent (“SSHD”)'s decision of 26 th April 2018 refusing and certifying the Applicant's application for Indefinite Leave to Remain (“ILR”) under paragraph 276B of the Immigration Rules on the basis of “ 10 years continuous lawful residence” in the United Kingdom.
On 15 th March 2019, the Court of Appeal directed, pursuant to CPR 52 PDC 15(3), that written submissions be filed by both sides and there should be an oral hearing of the application for PTA. We are grateful for the written and oral submissions of Mr J Sarker, counsel for the Applicant, and Mr T Tabori, counsel for the SSHD.
The facts
The Applicant (born on 30 th January 1983), a citizen of Bangladesh, arrived in the United Kingdom on 23 rd August 2002 on a valid student visa (EC). He was granted LTR from 29 th July 2002 until 31 st October 2005. On 31 st January 2006, he was granted further LTR on the same basis valid until 31 st January 2007 when his visa expired.
In December 2006, the Applicant visited Bangladesh (to see his mother). Following his return, on 23 rd February 2007, the Applicant applied out of time for further LTR. On 19 th March 2007, the application was returned as invalid. The Applicant re-submitted the application which was granted on 17 th September 2007, with LTR valid until 31 st May 2008.
On 2 nd June 2008 ( i.e. 2 days out of time), the Applicant made a further application to extend LTR which was granted. Thereafter, the Applicant made several further successful applications in-time to extend LTR under the Tier 4 (General Student) category. His last extension of leave was granted on 23 rd August 2011, valid until 30 th March 2013.
On 16 th January 2013, the Applicant applied for ILR under paragraph 276B on the basis of ‘long residence’. The application was refused on 5 th September 2013. Following various reconsiderations and appeals, the matter was remitted to the SSHD who again refused the application on 27 th July 2015, with an in-country right of appeal. The Appellant lodged a further appeal, which was refused, with the Upper Tribunal who also refused permission to appeal. The Applicant became appeal rights exhausted on 21 st December 2016.
On 29 th December 2017 ( i.e. 8 days later), the Applicant applied out of time under the FLR (FP) route for ILR on the basis of his private life in the UK. On 24 th February 2017, whilst the decision of his FLR (FP) application was pending, the Applicant varied his application again to the FLR (HRO) method in line with Part 1 of Paragraph 34E of the Immigration Rules, before any decision was made.
On 22 nd August 2017, the Applicant applied to vary his application again, so that the application was again for ILR under paragraph 276B on the basis of “ 10 years continuous lawful residence” in the UK.
On 26 th April 2018, the Applicant's paragraph 276B application was refused the SSHD and certified on 26 th April 2018 as stated above.
The Immigration Rules
Part 7 of the Immigration Rules provide in material part (underlining added):
“ Part 7
Long residence
Long residence in the United Kingdom
276A. For the purposes of paragraphs 276B to 276D and 276ADE(1).
(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 the applicant in question has existing limited leave to enter or remain upon their departure and return …
(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.
(c) ‘lived continuously’ and ‘living continuously’ mean ‘continuous residence’, except that paragraph 276A(a)(iv) shall not apply.
…
Requirements for an extension of stay on the ground of long residence in the United Kingdom
276A1. The requirement to be met by a person seeking an extension of stay on the ground of long residence in the United Kingdom is that the applicant meets each of the requirements in paragraph 276B(i)-(ii) and (v).
…
Requirements for indefinite leave to remain on the ground of long residence in the United Kingdom
276B. 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) he has had at least 10 years continuous lawful residence in the United Kingdom.
…
(v) the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. 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.
Indefinite leave to remain on the ground of long residence in the United Kingdom
276C. Indefinite leave to remain on the ground of long residence in the United Kingdom may be granted provided that the Secretary of State is satisfied that each of the requirements of paragraph 276B is met.
Refusal of indefinite leave to remain on the ground of long residence in the United Kingdom
276D. Indefinite leave to remain on the ground of long residence in the United Kingdom is to be refused if the Secretary of State is not satisfied that each of the requirements of paragraph 276B is met.”
Paragraph 39E provides as follows:
“ Exceptions for overstayers
39E. 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...
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