Note on judgment of the Supreme Court in R (Afzal) v SSHD and R (Iyieke) v SSHD [2023] UKSC 46

The Supreme Court has handed down judgment today in the cases of R (Afzal) v SSHD and R (Iyieke) v SSHD [2023] UKSC 46. Both cases raised issues relating to the long residence provisions in the Immigration Rules and were thus heard together, and dealt with in a single judgment. Afzal’s case also raised an important issue regarding the application of section 3C of the Immigration Act 1971 in cases where a fee waiver application has been submitted, is rejected, and the applicant subsequently fails to make the correct Immigration Health Surcharge payment within the time provided by the SSHD (as proscribed by the Immigration (Health Charge) Order 2015).

In Afzal, the two issues that the SC gave judgment on were:

1. The applicability of section 3C of the Immigration Act 1971 where an in-time application for extension of leave is ultimately invalid for failure to pay the Immigration Health Surcharge at the proper time.
2. Whether book-ended periods of overstaying that are disregarded pursuant to §276B(v) of the Immigration Rules are counted towards the 10-year qualifying period for ILR on the grounds of long residence.

In Iyieke, the sole issue was:

• How the reference to “the previous application” in §276B(v)(a) should be interpreted.

The SC held as follows in relation to the above issues:

i. Section 3C

Section 3C is engaged where an in-time application for extension of leave is made together with a fee waiver application. If the fee waiver is refused, section 3C leave continues to apply if the immigration fee and the IHS is paid within the applicable timeframe.

If the IHS is not paid within the 10 working days from the date on which a reminder to make the payment is sent, section 3C leave comes to an end at that point.

The notification of the invalidity of the application pursuant to Appendix SN of the Immigration Rules is of no consequence as far as the date on which section 3C leave comes to an end is concerned (although it is relevant for the purposes of calculating the grace period pursuant to §39E of the Immigration Rules for making a further application).

ii. The meaning of “disregard” in §276B(v)

The SC endorsed the judgment of the Court of Appeal, holding that periods of book-ended leave that fall to be disregarded pursuant to §276B(v) do not count when calculating the 10 years continuous lawful residence requirement. The book-ended period acts as a shield, not a sword, so that the period does not break continuous lawful residence

iii. The meaning of “the previous application” in §276B(v)(a)

The SC again endorsed the judgment of the Court of Appeal, holding that the reference to “the previous application” must be to an application that resulted in the grant of leave. Thus, if an application is made within the relevant grace period (28 days prior to 24 November 2016 and within §39E thereafter), it is only if that application results in the grant of leave that any period of overstaying would fall to be disregarded pursuant to §276B(v)).

Comment:

The Supreme Court ended its judgment with further judicial criticism of the poor drafting of the Immigration Rules:

“91. A final comment is in order. In cases dealing with this part of the Immigration Rules, judges have repeatedly commented on their poor drafting. Poor drafting needlessly creates difficulties and uncertainties which lead to expensive litigation. It is highly desirable that the project to redraft the Immigration Rules to make them clearer should be carried forward to completion.”

The proper construction of the long residence rules has been the subject of litigation at the Upper Tribunal (IAC) and the Court of Appeal for a number of years now. There have been conflicting judgments, but the construction of §276B appears to have now been settled by the SC. However, there is still no authoritative judgment on the application of the SSHD’s policy guidance. There is a tension between the consideration of the policy guidance by the Court of Appeal in R (Hoque) & others v SSHD  [2020] 4 WLR 154 and the UT in Muneeb Asif (Paragraph 276B – disregard – previous overstaying) [2021] UKUT 0096 (IAC) on the one hand, and the Court of Appeal in R (Afzal) v SSHD [2021] EWCA Civ 1909 on the other. That issue remains unresolved.

The construction of section 3C in the particular circumstances of the requirement to pay the IHS  after an unsuccessful application for a fee waiver has the potential to lead to uncertainty. Applicants will need to be very alive to the dates on reminder letters, and to act immediately upon realisation that payment has not been made on time. This is an issue that will be relevant to many applications, particularly as the number of fee waiver applications has increased in recent years.

The notice of invalidity pursuant to Appendix SN is still relevant as that is the date from which the §39E timeline will begin, but in the meantime an applicant will have become an overstayer and will need to be aware of the restrictions that change in status will place on permission to work etc. There will no doubt be litigation as to when reminder letters were sent, and potentially on the failure of the SSHD to send reminder letters- see what is said at §57.

The appellants were represented by our experienced counsel Zainul Jafferji, Arif Rahman, Huzefa Broachwalla and Sheraaz Hingora.

If you require advice or representation please do not hesitate to get in touch.