- Ten years continuous lawful residence as grounds for indefinite leave to remain, paragraph 276B of the Immigration Rules (Hoque v Secretary of State for the Home Department)
- What are the practical implications of this case?
- What was the background?
- What did the court decide?
- Case details
Immigration analysis: The Court of Appeal held an overstayer applying for indefinite leave to remain (ILR) relying upon paragraph 276B of the Immigration Rules (which, if its requirements are met, confers an entitlement to ILR on those with ten years continuous lawful residence in the UK) cannot rely upon her time in the UK while the application for ILR is pending in order to make up the required period of ten years’ continuous lawful residence. This was also the Upper Tribunal’s conclusion in R (Juned Ahmed) v Secretary of State for the Home Department, which the court therefore approved. Additionally, it was held that where a period of overstaying permitted by subparagraph 276B(v) was bookended by periods of leave, that period of overstaying did not reset the clock in respect of the requirement for ten years continuous lawful residence. In fact, the court appears to have gone further, holding that these periods of residence counted towards the period of continuous lawful residence required by subparagraph 276B(i)(a). In R (Masum Ahmed) v Secretary of State for the Home Department the Court of Appeal held otherwise. It was therefore held to be wrongly decided. As none of the cases before the court depended on treating bookended periods of overstaying as counting towards the ten years lawful residence requirement, and as the court resolved the other issues against the appellants, the appeals failed. Lord Justice McCombe dissented, holding that both Juned Ahmed and Masum Ahmed were wrongly decided. He would have allowed the appeals. Written by Michael Biggs, barrister, at 12 Old Square Chambers.
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