R (Iyieke) v Secretary of State for the Home Department [2022] EWCA Civ 1147 (11 August 2022)
The Court of Appeal has held that Mr Victormills Onyekachi Iyieke, who had applied for indefinite leave to remain ("ILR") on the ground of 10 years' continuous lawful residence in the UK and who had a period of overstaying in 2014 "book-ended" by periods of leave was not able to rely on paragraph 276B(v) of the Immigration Rules. It is notable that current overstaying and previous overstaying between periods of leave are referred to as "open-ended" and "book-ended" overstaying. Furthermore, the Court of Appeal observed that under paragraph 276B(v) a period of overstaying between periods of leave was disregarded where the previous application was made before 24 November 2016 and within 28 days of the expiry of leave. Mr Iyieke had made an application within 28 days of the expiry of his leave in 2014—that was unsuccessful and he was later granted temporary admission on other grounds. In paragraph 276B(v), "the previous application" could not refer to any unsuccessful application made in a period of book-ended leave before 24 November 2016. The reference was to "the" previous application and not "a" previous application and "the" previous application had to have resulted in a period of leave. Mr Iyieke had a post-study work visa which expired on 9 August 2014. He applied for leave to remain on 2 September 2014, which was within 24 days of the expiry of his post-study work visa.
The application of 2 September was refused on 29 October 2014. But that refusal was challenged and Mr Iyieke was granted temporary admission on 28 November 2014. But his application of 2 September 2014 was unsuccessful. Mr Iyieke was later granted leave to remain on human rights grounds. It was common ground that his temporary admission from 28 November counted towards his period of 10 years' continuous lawful residence. There was therefore a gap of 111 days between the expiry of leave on 9 August 2014 and the temporary admission on 28 November 2014. In 2021, he applied for ILR, which was refused on 13 June 2021. Mr Iyieke argued that he had had 10 years' continuous lawful residence at the date of the SSHD's decision, although there had been a period when he did not have leave, that was book-ended by periods of leave and so should count towards the 10 years pursuant to the provisions of paragraph 276B(v)(a) because he had made his 2 September 2014 application within 28 days of the expiry of leave, and that application had been made before 24 November 2016. The Court of Appeal granted permission for judicial review but the application was refused as there was nothing unlawful on the part of the SSHD. The court mentioned R (Munir) v SSHD [2012] UKSC 32 and stated that the SSHD has wide-ranging discretion under the Immigration Act 1971 to grant leave to enter or remain where leave would not be granted under the Immigration Rules.
Paragraph 276B
Paragraph 276B provided that the requirements to be met by an applicant for ILR on the ground of long residence included 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.
The Long Residence Guidance provided, among other guidance, firstly for the exercise of discretion to allow an applicant with temporary admission who meets all the other parts of rule 276B, 6 months leave to remain to make an application; secondly that the caseworker may grant the application if an applicant has short gaps in lawful residence owing to past applications out of time by no more than 28 days where the gaps end before 24 November 2016, although discretion might be exercised to grant late applications where exceptional circumstances such as serious illness, postal delays or inability to provide key documents were present; and thirdly, that where an applicant has overstayed for more than 28 days there may be exceptional circumstances as before that might justify discretion to ignore certain delays.
The Court of Appeal
Arnold, Dingemans and Warby LJJ stated that permission to apply was granted and stated that the grounds were arguable in relation to the proper construction of paragraph 276B in the circumstances of Mr Iyieke's case. Permission for judicial review was granted, but the application was refused. The court was unimpressed by the poor drafting of the rules and lamented at the outset:
2. 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; Secretary of State for the Home Department v Ali [2021] EWCA Civ 1357; and R(Afzal) v Secretary of State for the Home Department [2021] EWCA Civ 1909. 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.
The Court of Appeal first addressed paragraph 276B and followed the authority of Hoque v SSHD [2020] EWCA Civ 1357 discussed here, and Dingemans LJ reiterated the finding that the provisions of paragraph 276B(v) qualified paragraph 276B(i).
Thus, the question was whether Mr Iyieke "has had at least 10 years continuous lawful residence in the United Kingdom" because the gap of 111 days as a period of overstaying between periods of leave "will also be disregarded where the previous application was made before 24 November 2016 and within 28 days of the expiry of leave." In paragraph 276B(v)(a), "the previous application" could not refer to any unsuccessful application that was made in a period of book-ended leave before 24 November 2016—the reference was to "the" previous application and not "a" previous application: "the" previous application had to have resulted in a period of leave because otherwise there would be other periods of overstaying which had to be disregarded. After 9 August 2014, Mr Iyieke had not had any type of lawful residence until 28 November 2014; nothing said in paragraph 276B(v) required that to be overlooked. Mr Iyieke had not therefore satisfied the requirements of 10 years' continuous lawful residence as at 13 June 2021 and the SSHD had been right to reject his application for ILR. Indeed, as Dingemans LJ explained at length:
26. In my judgment "the previous application" cannot be a reference to any unsuccessful application made in a period of book-ended leave before 24 November 2016. This is because the reference is to "the" previous application and not "a" previous application. "The" previous application must have resulted in a period of leave because otherwise there will be other periods of overstaying which need to be disregarded. This is because lawful residence is defined by paragraph 276A(b) of the Immigration Rules to include: existing leave to enter or remain; temporary admission or immigration bail; or an exemption from immigration control. After 9 August 2014 Mr Iyieke did not have any form of lawful residence until 28 November 2014 and there is nothing in paragraph 276B(v) which requires that to be overlooked.
27. Mr Iyieke did not therefore satisfy the requirements of 10 years continuous lawful residence as at 13 June 2021 and the Secretary of State was right to reject his application for ILR on the basis of 10 years continuous lawful residence by email dated 13 June 2021.
28. In these circumstances Mr Jafferji's point about the decision in Afzalbeing a decision made per incuriam does not arise. It might be thought that the submission that Afzalhad been decided per incuriam, because the Court had not considered the express use of the word "discounted" in paragraph 276ADE of the Immigration Rules where that had been intended, where paragraph 276B(v) had used the word "disregarded", was based on a false proposition. This was that the Immigration Rules were drafted in one go as a coherent whole so that it would not readily be assumed that the drafter had used different words to convey the same meaning. It is necessary only to reflect on the way in which the Immigration Rules are numbered to see that the rules have been the product of many separate amendments made at different times by different persons.
Next, in relation to discretion, Mr Iyieke was unhappy that the SSHD failed to consider the discretion provided in the Home Office guidance on long residence. But the discretion provided in the guidance to waive compliance with the rules was based on circumstances such as illness or postal failures. There was nothing of that sort in Mr Iyieke's case and he had referred to human rights grounds in his application and the SSHD had not exercised discretion to grant leave outside the rules. Dingemans LJ explained that:
29. … This does not mean that the Long Residence guidance has become an "immigration rule", for the purposes of the decision in R(Munir), it simply means that Mr Iyieke's case is not one of those circumstances where discretion will be exercised to mitigate the effect of the Immigration Rules.
Furthermore, the SSHD had addressed the human rights submissions, recording that Mr Iyieke had outstanding leave, and she had said that those matters would be dealt with in relation to that grant of leave to remain.
There was nothing unlawful in taking that approach and Dingemans LJ held in the round that Mr Iyieke did not have 10 years continuous lawful residence as at 13 June 2021.
Comment
The Court of Appeal was at pains to point out that "poorly drafted rules lead to avoidable litigation" which "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." Nonetheless, the irony is that Mr Iyieke—who seems to have had a good arguable case—fell victim to the slovenly drafted rules on long residence which have featured repeatedly in the Court of Appeal and are generating unnecessary litigation in which everyone is a loser as it can be avoided and swelling costs can be saved. In Hoque the Court of Appeal expressed its continuing frustration with the poor drafting that has plagued the Immigration Rules for decades. The court rebuked the poor drafting of the Immigration Rules and the effects of the confused language and/or structure of particular provisions. It was highly unimpressed with the appalling state of the rules and reiterated these findings in the present case.