The Queen (on the application of Victormills Onyekachi Iyieke) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dingemans,Lord Justice Warby,Lord Justice Arnold |
| Judgment Date | 11 August 2022 |
| Neutral Citation | [2022] EWCA Civ 1147 |
| Docket Number | Case No: CA-2022-000223 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1147
Lord Justice Arnold
Lord Justice Dingemans
and
Lord Justice Warby
Case No: CA-2022-000223
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IAC)
Upper Tribunal Judge Gleeson
Case No. JR-2021-LON-000912
Royal Courts of Justice
Strand, London, WC2A 2LL
Zainul Jafferji and Arif Rehman (instructed by Direct Access) for the Appellant
Ben Keith (instructed by the Government Legal Department) for the Respondent
Hearing date: 20 July 2022
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 on 11 August 2022.
Introduction and issues
This is the latest appeal to raise the issue of the proper construction of paragraph 276B of the Immigration Rules which relates to the grant of Indefinite Leave to Remain (“ILR”) after “10 years continuous lawful residence”. After the judgment in Hoque v Secretary of State for the Home Department [2020] EWCA Civ 1357; [2020] 4 WLR 154 the Supreme Court was informed, before it refused permission to appeal to the unsuccessful applicants for ILR, in December 2020 that “the Home Office are in the process of redrafting this section and attempting to simplify the rules overall”. This has not yet occurred, and Mr Keith informed the Court that he did not know when the rule would be redrafted.
Since the judgment in Hoque the Court of Appeal has had to revisit paragraph 276B in R(Akinola) v Upper Tribunal [2021] EWCA Civ 1308; [2022] 1 WLR 1585; Secretary of State for the Home Department v Ali [2021] EWCA Civ 1357; [2021] 1 WLR 773; and R(Afzal) v Secretary of State for the Home Department [2021] EWCA Civ 1909; [2022] 4 WLR 21. All of this illustrates the fact that poorly drafted rules lead to avoidable litigation. This matters because the avoidable litigation: comes at a cost to the parties; requires the allocation of limited court resources as the courts attempt to deal fairly with the issues raised by the parties; and causes delay.
This is an appeal against the refusal of Upper Tribunal (“UT”) Judge Gleeson (“the judge”) to grant the appellant Victormills Onyekachi Iyieke (“Mr Iyieke”) permission to apply for judicial review of the decision of the Secretary of State for the Home Department (“the Secretary of State”) dated 13 June 2021 refusing to grant Mr Iyieke ILR on the basis of 10 years continuous lawful residence. Mr Iyieke currently has limited leave to remain on human rights grounds (and will be making a renewed application for further leave on human rights grounds if necessary) but contends that he should have been granted ILR.
Mr Jafferji and Mr Rehman on behalf of Mr Iyieke submit that Mr Iyieke ought to be granted permission to apply for judicial review, and submit that the decision of the Secretary of State refusing to grant Mr Iyieke ILR on 13 June 2021 should be quashed because he had 10 years continuous lawful residence at the date of the decision. They say that, although there was a period of Mr Iyieke's stay in the United Kingdom when he did not have leave, this was “book-ended” by periods of leave and so should count towards the 10 years continuous lawful residence pursuant to the provisions of paragraph 276B(v)(a) of the Immigration Rules. They also submit that the part of the judgment in Afzal which decided that book-ended leave did not count towards the 10 year period of continuous lawful residence was per incuriam because it had not considered other differing uses of the words “discounted”, in particular at paragraph 276ADE of the Immigration Rules, instead of “disregarded” in the Immigration Rules. They submit that, alternatively, even if the period of residence without leave does not count towards the 10 years but is just ignored, Mr Iyieke had accrued 10 years continuous lawful residence by the date of the decision by the Secretary of State on 13 June 2021, and so he should have been granted ILR.
It is further submitted that the Secretary of State failed to consider the discretion provided to the Secretary of State under the guidance to Home Office staff set out in the Home Office, Long Residence, Version 17, published on 11 May 2021 (“the Long Residence guidance”) and grant Mr Iyieke ILR. Mr Jafferji and Mr Rehman also submit that the Secretary of State failed to engage with Mr Iyieke's request for ILR beyond the Immigration Rules. It does not appear that this was expressly argued on the renewed application for permission to apply for judicial review before the judge.
Mr Keith on behalf of the Secretary of State contends that, as at 13 June 2021, Mr Iyieke did not have 10 years continuous lawful residence and that permission to apply for judicial review was rightly refused. It is submitted that although Mr Iyieke's period of stay without leave was “book-ended” by periods of leave, he could not bring himself within the terms of paragraph 276B(v)(a) of the Immigration Rules because he did not have a qualifying “previous application”. This meant that the period of leave was not “continuous”. If this was not sufficiently addressed in the judgment below, Mr Keith sought permission to raise these points in a Respondent's Notice, which had been prepared out of time. Permission to serve the Notice out of time had not been pursued because the Secretary of State considered that the matters were covered by the judgment. Mr Keith submitted that there was no relevant discretion in the Long Residence guidance which could be exercised in favour of Mr Iyieke, and that the Secretary of State had been entitled to address the other points made by Mr Iyieke in support of the grant of leave under the separate grant of leave to remain on human rights grounds.
It was also common ground that paragraph 39E of the Immigration Rules, which is referred to in paragraph 276B(v)(b) of the Immigration Rules, is not engaged by the issues on this appeal, even though it had been wrongly referred to in earlier decisions and submissions. I am very grateful to Mr Jafferji and Mr Rehman, Mr Keith, and their respective legal teams for their helpful written and oral submissions.
Relevant factual background
Mr Iyieke entered the UK lawfully on 13 February 2011 and resided with leave to remain as a student until 30 November 2012. Mr Iyieke submitted an in time application for post study leave, which was later granted until 9 August 2014 when his leave expired.
Mr Iyieke then made an out of time application for leave to remain on compassionate grounds on 2 September 2014. That application was made within 24 days of the expiry of his post study leave. It was refused on 29 October 2014.
A letter challenging that refusal was sent on behalf of Mr Iyieke on 25 November 2014, and Mr Iyieke was then granted temporary admission on 28 November 2014. A period of temporary admission can, if leave is subsequently granted, count towards the 10 year period of continuous lawful residence.
There followed an exchange of pre-action protocol correspondence. Mr Iyieke submitted an out of time application for leave to remain on family and private life grounds on 26 February 2015. This was refused on 10 June 2015 with a right of appeal. An appeal was lodged to the First-tier Tribunal (“FTT”) which was dismissed on 5 April 2016. Mr Iyieke was granted permission to appeal to the UT. The appeal was successful and Mr Iyieke was granted leave to remain on 11 August 2017 on human rights grounds outside the terms of the Immigration Rules until 11 February 2020. A further in time application was made which was successful and Mr Iyieke was granted leave to remain until 30 July 2022. Mr Iyieke continues to benefit from leave to remain and the Court was informed that he would be making a further application for leave to remain on human rights grounds. This claim challenges the refusal of the SSHD to grant him ILR.
Mr Iyieke applied for ILR on 17 February 2021 on the grounds of 10 years continuous lawful residence. In that application he also referred to his human rights grounds. There was a covering letter dated 22 February 2021 which referred to the decision of the Court of Appeal in Ho...
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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
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