Uk Government

Just what ten years’ continuous and lawful and residence in the United Kingdom means has been a controversial/confused area of law that has helpfully been clarified in a recent decision of the Court of Appeal in Ziaoul Hoque v Secretary of State for the Home Department [2020] EWCA Civ 1357.

Ten years’ lawful and continuous residence has been the Holy Grail for many migrants to the UK – years of anxiety and stress to finally cross the winning line.

The case involved apparent gaps in that lawful and continuous residence, and what effect small periods of overstaying had on the lawful and continuous residence.

In such applications overstaying can occur in two situations. Firstly, historic gaps between two visas of no more than fourteen or twenty-eight days, depending on the time and circumstances, and secondly, what the court describes as “current gaps”. Current gaps arise in circumstances where, for example, an applicant has held visas for nine and a half years. They of course have not reached the ten year period, and they may be, say, appeal rights, exhausted. One attempted solution to the problem has been to make an application under the Immigration Rules within fourteen days of the expiry of leave, and then to vary that application once the ten year period had been passed into an application for long residence. The logic behind it is that adopting this tactic has completed the ten year period.

For many years it had been understood (depending on the circumstances and time the application was made) that historic gaps of fourteen and twenty-eight days following on from the expiry of a visa, the refusal of a visa or decision of court or Tribunal, would not count as a period of overstaying that would break the continuity of a person’s presence during the ten year period.

This understanding, which in itself had been long accepted by the Home Office, was thrown into turmoil by the decision in the case of R (Masum Ahmed) v Secretary of State for the Home Department [2019] EWCA Civ 1070, which stated that ten years’ continual and lawful residence meant what it said on the tin – that any gaps of this nature, whether historic or current, would break that continuity.

The practical upshot of this decision was uncertainty for many applicants now facing the risk of a refusal, who previously would have expected to successfully apply despite historic gaps of overstaying (within either of less than twenty-eight or fourteen days)

Fortunately there has, at least for historic overstaying, been an answer to this issue as a result of the case of Ziaoul Hoque v Secretary of State for the Home Department [2020] EWCA Civ 1357 where a majority of the court found that the relevant Rule had been badly drafted, and has proceeded to make a decision on the basis of what they felt the intention of the Rule was and had indeed be the practice adopted by the Home Office.

What this means in practice is that historic gaps of fourteen and twenty-eight days over overstaying (provided the other criteria are met) will not be regarded as having broken the continuity of the residence.

Unfortunately, the court was not prepared to adopt a similar approach in respect of situations of current overstaying. So in the example above, the application within 14 days of appeal rights exhausted to take the applicant beyond the 10 years would not need to be granted.

Nevertheless, this decision is to be welcomed as it has brought clarity to the issue of historic overstaying. These applications are nevertheless not straightforward, and will require a careful analysis of a person’s immigration history. The immigration team at Drummond Miller has extensive experience with these types of applications, and we are more than willing to assist.