The Commission has now reported, along with recommendations, on how the rules could be simplified. Among other things, a complete redrafting of the rules is proposed. The report is timely, considering the criticism of the rules meted out by the Court of Appeal in a recent ruling.

Hoque

In October (Hoque [2020] EWCA Civ 1357), a key issue for the court related to gaps in lawful residence where claims were made for indefinite leave to remain (ILR) on the basis of long residence. It was, said the court, a serious point of law to be determined.

Three of the appellants contended that they were entitled to ILR under the Immigration Rules. The appeal court stated that this turned on the correct interpretation of paragraph 276B of the rules, which allows for an exception for those who overstayed for at least 10 years in specified circumstances (key definitions are set out in those rules).

Cases concerning para 276B have never been straightforward, but in Hoque the appeal judges concluded that the 2019 case of Masum Ahmed(1) had been wrongly decided. In that earlier case, the applicant argued that the ‘short gaps’ in the residency period when he had applied for extensions to leave to remain out of time should be disregarded under 276B, therefore, he satisfied the 10 years’ continuous lawful residence requirement.

Could 276B operate to cure such short gaps? It could, the appeal judges found, though not in Masum Ahmed’s case - the court distinguished between gaps in leave during the 10-year period and his applications made after the expiry of his leave.

However, the appeal judges in Hoque said this was wrong. In its view, the court had been wrong because it treated the situations covered by the two cases – “that is, open-ended and book-ended overstaying – as if they were the same”. But such an analysis did not end there.

In its consideration of the operation of para 276B, the Court of Appeal said it was clear from both its language and structure that the requirements were “free standing and self-contained”. Underhill J gave the judgment and carefully analysed the structure of 276B, concluding that there was, in fact, a drafting error in relating to a particular element (276B(v):

“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."

He stated: “It is unfortunately not uncommon for tribunals and courts to have to grapple with provisions of the Immigration Rules which are confusingly drafted, but it is our job to try to ascertain what the drafter intended to achieve and give effect to it so far as possible. In this case it is clear from its terms what the intended effect of [the above element] is, but it has been put in the wrong place.”

On that basis, the court ruled that continuous lawful residence is not qualified by the paragraph 39E disregard in 276B(v).

Underhill J’s reasoning is clear. He did not agree with the court in Masum which effectively said that the reference to previous periods of overstaying has a role to play in sub-paragraph (v) because the requirement itself relates not only to the applicant's current position, but to their previous immigration status.

He made clear that the requirement is framed in the present tense – "must not be in the UK in breach of immigration laws" – and the first disregard refers to "current overstaying". He did not think it possible to read it as meaning "must not at any time in the ten-year period relied on have been in the UK in breach of immigration laws".

What next?

So what does this mean for lawyers? A particularly careful examination of any periods of ‘overstaying’ on the part of an applicant is required in light of this latest ruling, with ongoing periods of overstaying not allowed under 276B. But this is unlikely to be the last of rulings from the high courts on this issue, given the very nature of the rules and the specific circumstances of individual cases.

For now, the Law Commission has recommended that the rules are completely redrafting to provide “greater legal certainty and transparency for applicants” – something immigration lawyers will welcome too, though it could be some time yet before any further developments take place.

(1)R (Masum Ahmed) v Secretary of State for the Home Department [2019] EWCA Civ 1070.