These joined appeals concerned the ten years of continuous lawful residence required by the Immigration Rules then in force. Mr Afzal had a gap that could be overlooked, but he needed the time spent in that gap to reach ten years. Mr Iyieke first had to establish whether his gap could be overlooked at all.
Two applications after ten years
Mr Afzal and Mr Iyieke each applied for indefinite leave to remain, meaning permission to stay without a time limit, on the ground of long residence. At the relevant times, paragraph 276B of the Immigration Rules required at least ten years’ continuous lawful residence, as well as other conditions. Lawful residence meant residence under existing leave, or in certain other specified situations such as temporary admission later followed by a grant of leave. A period without leave would normally break that continuity.
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Each man relied on provisions designed to soften the effect of a gap. Section 3C of the Immigration Act 1971 extends existing limited leave where a person applies to vary it before it expires and the application has not been decided or withdrawn when the leave expires. Paragraph 276B(v) says that some periods of overstaying are to be disregarded. The Supreme Court, in a judgment of Lord Sales with which Lord Reed, Lord Kitchin, Lord Burrows and Lord Stephens agreed, held that neither appellant could bring himself within those provisions in the way he claimed.
Mr Afzal and the health surcharge
Mr Afzal applied to extend his student leave before it expired in July 2017 and sought a fee waiver. When the waiver was refused in October, the Home Secretary required payment of the fee and the immigration health surcharge. He paid the fee alone. After his application was rejected in January 2018, he applied again within 14 days, paid both sums and eventually obtained leave in September 2019.
His later application for indefinite leave to remain depended on how the interval between his grants of leave was treated.
Mr Afzal said that his July 2017 application remained outstanding until the notice of 22 January 2018, so section 3C extended his leave until then. His February 2018 application would then have fallen within 14 days of the end of that extension. Under paragraph 39E, a further application made in that situation can allow a book-ended period of overstaying to be disregarded.
The Court applied its earlier decision in Mirza. Section 3C operates only if a valid application is made before leave expires. In Mirza, failure to pay a required fee meant that there was no valid application and section 3C never applied. By contrast, a later failure to provide biometric information did not retrospectively invalidate an application which had been valid at the outset.
Under the Immigration (Health Charge) Order 2015, the surcharge must be paid with the application, although the Secretary of State may waive it. If it is unpaid, payment may be requested. For an application made in the United Kingdom, failure to pay within ten working days of a written request means that the application must be treated as invalid. That result follows by operation of law. It is not created by the later notice of invalidity, and the Secretary of State has no discretion once the period expires. The Order also excludes any discretion which might otherwise arise under paragraph 34B of the Rules.
If an applicant neither pays nor asks for a waiver, the application is invalid from the start, although payment within the ten-day period can validate it retrospectively. Mr Afzal had asked for a waiver, so it was not yet known whether payment would be required. Lord Sales agreed with Sir Patrick Elias that the application was conditionally valid: it remained valid unless the waiver was refused and the charge was not then paid in time. When that condition failed, the application became invalid and section 3C ceased to extend his leave.
Time ran from 18 October 2017, when the written request was sent, not from receipt. The appeal proceeded on the agreed facts that Mr Afzal was notified that day. His application therefore ceased to be valid on 31 October 2017. Even if time had run from a reminder sent on 8 November 2017, he still did not pay in time. A dispute about whether he received that reminder had no legal significance. His February 2018 application was not made within 14 days of the end of the section 3C extension, so he could not rely on that route in paragraph 39E.
What “disregarded” means
A separate provision did apply to him. His fresh application was made within 14 days of notice that his earlier, in-time application had failed. The Secretary of State accepted that his period of overstaying between grants of leave qualified for disregard.
Mr Afzal argued that the gap should be treated as lawful residence and added to the periods on either side. The Secretary of State argued that it should merely be ignored: it would not break continuity, but it would not count towards the ten years. The Supreme Court accepted the Secretary of State’s reading.
Paragraph 276B(v) has two limbs. The first requires that the applicant not be in breach of immigration laws when applying, subject to a relaxation for a current period of overstaying covered by paragraph 39E. The second concerns an earlier gap lying between two periods of leave. Neither limb deems overstaying to be residence under existing leave. Had the Rules intended to depart from the basic requirement of ten years’ continuous lawful residence, they would have said so clearly. To disregard a period is to ignore it. The disregard is a shield rather than a sword: it prevents refusal merely because the applicant is currently overstaying, or merely because a qualifying gap broke continuity. The applicant must still have ten years of actual lawful residence, made up by adding the periods with leave on either side of the gap.
In Hoque, Underhill LJ had expressed the view, unnecessarily to that decision, that a book-ended gap under the second limb did count. The Supreme Court rejected that view. It also agreed that a current period of overstaying under the first limb does not count. The Secretary of State’s guidance could not change the result, because the rule was not ambiguous.
Mr Iyieke and “the previous application”
Mr Iyieke, a Nigerian national, entered on 13 February 2011 as a student. His leave was extended until 9 August 2014. He did not apply before it expired and became an overstayer on 10 August 2014. On 2 September 2014, within the 28 days then allowed for a late application, he applied on compassionate grounds. That application was refused on 29 October 2014 without a right of appeal.
His later application on family and private-life grounds eventually resulted in a grant of leave. Temporary admission from 28 November 2014 counted as lawful residence by agreement. A 111-day gap remained.
Mr Iyieke relied on paragraph 276B(v)(a). Where the previous application was made before 24 November 2016 and within 28 days of the expiry of leave, a previous period of overstaying between periods of leave is disregarded. He said that his unsuccessful application of 2 September 2014 was that previous application.
The Court held that it was not. The definite article shows that the rule refers to one particular application, not to any unsuccessful application made during the gap. The relevant application is the one which produced the later grant of leave and brought the period of overstaying to an end. The September 2014 application did not do that. Nothing in the rule required the interval before 28 November 2014 to be overlooked.
On Mr Iyieke’s interpretation, an unsuccessful late application could put someone in a better position than a person who applied on time. The Court found no basis for that result in the Rules.
Verdict: The Supreme Court unanimously dismissed both appeals. Mr Afzal’s qualifying period of overstaying did not count towards the ten years. Mr Iyieke’s unsuccessful application did not end his gap, so he could not rely on it to preserve continuity.
Source: R (on the application of Afzal) v Secretary of State for the Home Department [2023] UKSC 46
