R (on the application of Afzal) v Secretary of State for the Home Department; R (on the application of Iyieke) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Sales,Lord Reed,Lord Kitchin,Lord Burrows,Lord Stephens |
| Judgment Date | 28 November 2023 |
| Neutral Citation | [2023] UKSC 46 |
| Court | Supreme Court |
[2023] UKSC 46
Lord Reed, President
Lord Kitchin
Lord Sales
Lord Burrows
Lord Stephens
Appellants
Zainul Jafferji
Arif Rehman
Huzefa Broachwalla
Sheraaz Hingora
(Instructed by Abbotts Solicitors (Luton))
Respondent
Lisa Giovannetti KC
Ben Keith
(Instructed by Government Legal Department (Immigration))
Heard on 7 and 8 June 2023
Lord Sales ( with whom Lord Reed, Lord Kitchin, Lord Burrows and Lord Stephens agree):
There are two appeals before the court. In each case the appeal concerns the question whether the appellant (Mr Afzal and Mr Iyieke, respectively) is entitled to be granted indefinite leave to remain in the United Kingdom (“ILR”) by virtue of section 3C of the Immigration Act 1971 (“section 3C”), para 276B of the Immigration Rules (Statement of Changes in Immigration Rules (1994) (HC 395)) (“para 276B”) and the respondent Secretary of State's Long Residence Policy Guidance (2016) (“the Guidance”).
In order to provide an answer in Mr Afzal's case it is necessary to consider the effect of the judgment of this court in R (Mirza) v Secretary of State for the Home Department [2016] UKSC 63; [2017] 1 WLR 85 (“ Mirza”) and the Immigration (Health Charge) Order 2015 (SI 2015/792) (“the 2015 Order”). The answer in Mr Iyieke's case depends upon the proper interpretation of para 276B(v)(a).
Mr Afzal is a national of Pakistan, born on 12 June 1986. He first entered the United Kingdom on 24 February 2010 with leave as a Tier 4 (student) which was valid until 14 April 2013.
On 12 December 2012, before the expiry of his leave, Mr Afzal applied for further leave to remain as a Tier 1 (Highly Skilled Migrant). On 17 April 2013 that application was refused with an in-country right of appeal. Mr Afzal appealed to the First-tier Tribunal and his appeal was allowed on human rights grounds on 19 November 2013. By a fresh decision dated 14 July 2014 the Secretary of State granted him leave to remain until 14 July 2017.
On 6 July 2017, before the expiry of that leave, Mr Afzal submitted an application for further leave to remain along with an application for waiver of the relevant fee. On 18 October 2017 the Secretary of State rejected Mr Afzal's application to waive the fee and notified him that he had to pay the applicable fee together with the Immigration Health Surcharge (“the IHS”) payable pursuant to the 2015 Order. The IHS is a sum payable in respect of having access to healthcare services in the United Kingdom for the period during which the applicant is expected to remain here.
At the hearing Mr Zainul Jafferji, for Mr Afzal, sought to contend that Mr Afzal had not received the notice sent on 18 October 2017 requiring him to pay the fee and the IHS. However, this was not disputed in the proceedings below and the agreed statement of facts and issues for this court indicated that he had indeed been notified on 18 October 2017 that he had to pay the fee and the IHS. It is not for this court to go behind the agreed statement of facts and issues, nor is it appropriate for this court to resolve disputes on issues of fact which are raised for the first time on an appeal. Accordingly, the appeal has proceeded on the basis as set out in the agreed statement of facts and issues.
On 1 November 2017 Mr Afzal paid the fee for his application for leave to remain, but he omitted to pay the IHS as required. On 8 November 2017 the Secretary of State wrote to him to remind him to pay the IHS within 10 days. Mr Afzal maintains that he did not receive this letter. The Secretary of State does not accept this. But, as explained below, this has no legal significance and it is not necessary for the court to resolve this dispute.
Since the IHS remained unpaid, on 22 January 2018 the Secretary of State wrote to Mr Afzal to give him notice that his application for further leave to remain had been rejected. Mr Afzal accepted this and took no steps to bring proceedings to challenge this decision.
Instead, on 2 February 2018 (that is, after his extant leave to remain had expired on 14 July 2017) Mr Afzal made a fresh application for further leave to remain, accompanied by payment of the relevant fee and the IHS. On 5 September 2019 the Secretary of State granted this application, with leave to remain until 4 March 2022.
On 28 February 2020, having resided in the United Kingdom for more than 10 years, Mr Afzal applied for ILR pursuant to para 276B on the ground of long residence here, relying so far as necessary on section 3C. On 11 March 2020 the Secretary of State refused his application on the grounds that there was a gap in his continuous lawful residence in the United Kingdom by reason of him over-staying the leave granted to him on 14 July 2014, which had expired on 14 July 2017, and only being granted fresh leave to remain on 5 September 2019. His presence in the United Kingdom between 14 July 2017 and 5 September 2019 had been unlawful as being without leave to remain. After a review, on 5 June 2020 the Secretary of State confirmed her decision. This is the decision under challenge in the proceedings in Mr Afzal's case.
On 11 June 2020 Mr Afzal issued a judicial review claim to challenge the Secretary of State's decision. Permission to claim judicial review was refused by the Upper Tribunal. Mr Afzal appealed to the Court of Appeal (Peter Jackson and Males LJJ and Sir Patrick Elias) which granted him permission to apply for judicial review but dismissed his claim on the merits: [2021] EWCA Civ 1909; [2022] 4 WLR 21. Mr Afzal now appeals to this court.
Mr Iyieke is a national of Nigeria, born on 7 June 1983. He first entered the United Kingdom on 13 February 2011 with leave to enter as a Tier 4 (General) Student until 30 November 2012. Before the expiry of that leave he submitted an application for further leave to remain which was granted until 9 August 2014. Mr Iyieke did not submit a further application to extend his leave beyond that date and thus became an overstayer on 10 August 2014.
On 2 September 2014 Mr Iyieke submitted an out of time application for leave to remain on compassionate grounds. The application was submitted within the grace period of 28 days permitted at that time by the Immigration Rules for applications by overstayers to regularise their position. The application was refused on 29 October 2014 without any right of appeal.
On 26 February 2015 Mr Iyieke submitted an application for leave to remain on family and private life grounds. His application was refused on 10 June 2015 with a right of appeal to the First-tier Tribunal. His appeal to the First-tier Tribunal was dismissed but his further appeal to the Upper Tribunal was allowed.
In the light of this, on 11 August 2017 the Secretary of State granted Mr Iyieke leave to remain outside the Immigration Rules until 11 February 2020. Before the expiry of that leave he made an application for further leave to remain which was granted until 30 July 2022.
On 17 February 2021, having been resident for more than 10 years in the United Kingdom, Mr Iyieke applied for ILR pursuant to para 276B(v). On 13 June 2021 the Secretary of State refused his application. This is the decision under challenge in the proceedings in Mr Iyieke's appeal.
On 10 September 2021 Mr Iyieke commenced a claim for judicial review to challenge the Secretary of State's decision. Permission to apply for judicial review was refused at first instance by the Upper Tribunal. On appeal, the Court of Appeal (Arnold, Dingemans and Warby LJJ) granted such permission, but dismissed the claim on the merits: [2022] EWCA Civ 1147. Mr Iyieke now appeals to this court.
At the material times, the Immigration Rules made provision in relevant part for the grant of ILR on the ground of long residence in the United Kingdom as follows. The Immigration Rules dealt with the topic of the grant of leave to remain on the ground of long residence in a chapter comprising paras 276A–276D. An applicant for leave to remain on the ground of long residence had to meet each of the requirements in para 276B(i)-(ii) and (v) (para 276A1). An extension of leave on the ground of long residence was to be refused if the Secretary of State was not satisfied that the requirement in para 276A1 was met (para 276A4). Para 276C stated that ILR could be granted provided that the Secretary of State was satisfied that each of the requirements of para 276B was met. Para 276D provided that she should not grant ILR if she was not so satisfied.
Para 276A set out relevant definitions. These include the following:
“(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, but shall be considered to have been broken if the applicant:
(i) has been removed under Schedule 2 of the 1971 Act, section 10 of the 1999 Act, has been deported or has left the United Kingdom having been refused leave to enter or remain here; or
(ii) has left the United Kingdom and, on doing so, evidenced a clear intention not to return; or
(iii) left the United Kingdom in circumstances in which he could have had no reasonable expectation at the time of...
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