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Ten-year continuous lawful residence route to settlement – potential problems

Ten-year continuous lawful residence route to settlement – potential problems

Readers may be aware of the ten-year long residence route to settlement. Briefly and basically, if a migrant has ten years’ continuous immigration leave (typically in a combination of different visas) they may be able to apply for settlement on this basis if various requirements are met – eg English language/Life in the UK test requirements, not having been outside the UK for too long during the ten years. 

Another requirement is that the tests for continuity of leave are met. Most ideally, the migrant will in every case have applied for their new visa before their old visa expired and duly paid the relevant fees. In this situation the migrant’s leave is in most cases protected and maintained when their old visa expires and they do not become an overstayer. This type of extended leave is called “section 3C leave”.

But sometimes, for whatever reason, a migrant submits a visa extension application late. The law provides a certain amount of flexibility about this: if the application is made no more than 14 calendar days – or, historically, 28 calendar days – after the old visa expired the Home Office may in some circumstances accept the application and process it. But, very importantly, in this situation the migrant becomes an overstayer when their old visa expires and they remain an overstayer until such time as their new application is successful. If the new application is unsuccessful they remain an overstayer. 

But if the new application is granted readers may be interested to learn (if they did not know already) that that period of overstaying is known as a “book-ended” period of overstaying: ie the migrant held leave before and after the period of overstaying, rather like bookends on a bookshelf. 

This book-ended terminology was recently deployed in the case of “Afzal” in the Supreme Court (the highest court in the UK). This was a rather complicated case but we know that our readers like some deep legal reading sometimes. It involved two migrants, Mr Afzal (a Pakistani national) and Mr Iyieke (a Nigerian national), both of whom had applied for settlement based on ten years’ continuous lawful residence and both of whom had been refused. 

Background to the case

Mr Afzal had first come to the UK on 24 February 2010 as a student and subsequently extended his leave. His new leave was granted until 14 July 2017. He applied in time on 6 July 2017 to extend this leave but something went wrong and he did not pay the Immigration Health Surcharge. Because of this the Home Office eventually rejected his application, as being invalid, in a decision of 22 January 2018. Then, on 2 February 2018 he submitted a fresh application to the Home Office. The Home Office evidently accepted and processed this application and he was granted new leave from 5 September 2019. 

Then on 28 February 2020 he submitted an application for settlement based on ten years’ continuous lawful residence. He had, he implicitly claimed, at that point spent ten years continuously lawfully resident in the UK.. 

This application was refused by the Home Office, who said that he had not been continuously lawfully resident. They said that he had been an overstayer from 14 July 2017 (when his then visa had expired) until 5 September 2019, when his current leave had been granted, because his application of 6 July 2017 had eventually become invalid because he had not paid the IHS. (The court was relying on the well-established general principle that an overstayer is not lawfully resident in the UK.) Mr Afzal challenged the decision and the case eventually reached the Supreme Court. 

In Mr Iyieke’s case he had first came to the UK on 13 February 2011, like Mr Afzal as a student, and subsequently extended his leave. His leave was granted until 9 August 2014. He did not make any in-time application to further extend his leave and so he became an overstayer when his visa expired. 

Then on 2 September 2014 he submitted a new application for leave – this date was within the 28-day rule period that was then in force. This application was refused on 29 October 2014. He seems to have subsequently acquired Temporary Admission from 28 November 2014 and he subsequently submitted a further application for leave on 26 February 2015. This application was ultimately successful and he was granted new leave from 11 August 2017. He subsequently successfully extended this leave from 30 July 2022.

On 17 February 2021 he, like Mr Afzal, submitted an application for settlement based on ten years’ continuous lawful residence but his application was also refused, also on the grounds that he had overstayed during his ten-year period of residence (between 10 August 2014 and 28 November 2014), and thus his case also reached the Supreme Court.

The Court’s decisions

Mr Afzal

It is necessary to understand that, because of the way the law works, in Mr Afzal’s case he could initially seek to rely on either or both of two rules: either that he had submitted his fresh application of 2 February 2018 within 14 days of his section 3C leave expiring or that it had been submitted within 14 days of the rejection decision, which was dated 22 January 2018. If he could rely on just one of these then perhaps he could show continuity of leave and perhaps he could succeed.

The court held that he could not rely on the first rule. As per a previous Supreme Court case called “Mirza” it held that an invalid application – or in this case more precisely an application that was eventually deemed to have been invalid – could not maintain section 3C leave. So this could not work, because he would not have ten years’ continuous lawful residence.

But it might seem that he could rely on the second rule: clearly the new application had been made within 14 days of the rejection decision. But this prompted a new stream of legal thought. Did a period of “book-ended” overstaying (as described above) count towards the ten-year period? If it did not then again he would not have ten years’ continuous lawful leave. 

Unfortunately for Mr Afzal the court decided that it did not: the language of the relevant rule, it said, did not permit of such an interpretation. 

So Mr Afzal failed in his case. 

Mr Iyieke

Mr Iyieke’s case required another complex train of thought. As we explained, the Home Office said that he had been an overstayer from 10 August 2014 to 28 November 2014, and the question before the court was whether this period could count in his favour. The 28-day rule referred to above only operated until 24 November 2016. His application of 2 September 2014 was, obviously, within that period, and the relevant rule stated that periods of overstaying where “the previous application” had been made before 24 November 2016 would be disregarded where the application was made no more than 28 days after the expiry of the previous leave. 

But the court considered very carefully what the words “the previous application” meant. It decided that the previous application was the application that had led to a new grant of leave on the basis that that the new application had been submitted within 28 days of that grant of leave’s expiry. This was not the case here, as Mr Iyieke’s application of 2 September 2014 had been refused and it was not the application that had led to the grant of new leave, so he had not accrued ten years’ continuous leave. 

So Mr Iyieke failed as well. 

So where does this leave us?

Well, we warned you that this was very complicated. If you are involved in one of these complex ten-year continuous lawful residence cases you might want to seek good legal advice, and we at GSN will be pleased to try and help you. 

Oliver Westmoreland

Senior Immigration Lawyer