R (on the application of Afzal) (Appellant) v Secretary of State for the Home Department (Respondent)

R (on the application of Iyieke) (Appellant) v Secretary of State for the Home Department (Respondent)

[2023] UKSC 46

On appeal from [2021] EWCA Civ 1909; and [2022] EWCA Civ 1147

The facts in 2022/0021 are:

Mr Afzal was originally granted limited leave to remain until 14 April 2013 on 4 February 2010. He was subsequently granted further leave to remain until 14 July 2017 as a Tier 1 entrepreneur.

On 6 July 2017, before his leave had expired, Mr Afzal applied for an extension of leave, but the application was rejected as invalid by a notice dated 22 January 2018, due to Mr Afzal having failed to pay one of the required fees. Mr Afzal made no attempt to challenge that decision.

Mr Afzal then made a fresh application on 2 February 2018 for further leave to remain, accompanied by the appropriate fees. On 5 September 2019 Mr Afzal was given leave to remain until 4 March 2022. In the period between 14 July 2017 and 5 September 2019, therefore, Mr Afzal did not have formal leave to remain.

Mr Afzal made an application for indefinite leave to remain on 28 February 2020, for which one must have ten years' continuous residence pursuant to paragraph 276B of the Immigration Rules. On 11 March 2020 the Secretary of State refused that application on the basis that there was a period when Mr Afzal was not lawfully resident with the consequence that the period of continuous lawful residence had been broken.

Leave to bring judicial review proceedings of the Secretary of State's decision was refused by two Upper Tribunal Judges, the first on the papers and the second after an oral hearing. The Court of Appeal granted leave to bring judicial review but dismissed Mr Afzal's claim. Mr Afzal now appeals to the Supreme Court.

The issue in 2022/0021 is:

(1) Does section 3C of the Immigration Act 1971 apply where an application for leave to remain is said to be invalid by reason of the failure to pay the relevant fee at the proper time, so that leave is extended by that provision until the application is decided or withdrawn?
(2) What is the meaning of the word "disregarded" in the second sentence of para 276B of the Immigration Rules with regards to overstaying book-ended by periods of leave to remain?

The facts in 2022/0168 are:

The appellant is a Nigerian national who entered the UK on 13 February 2011 on a student visa and remained in the UK after that visa expired, thus becoming an overstayer on 10 August 2014. He applied for leave to remain on compassionate grounds in 2014 and on grounds of private and family life in 2015. On 11 August 2017, he was granted leave to remain on human rights grounds until 11 February 2020, later extended to 30 July 2022.

On 17 February 2021, the appellant, having completed 10 years of residence in the UK, applied for Indefinite Leave to Remain under para 276B of the Immigration Rules – the long residence rule.

The respondent refused the application and the appellant judicially reviewed that decision.

The Upper Tribunal refused permission to bring the judicial review.

The Court of Appeal granted permission to bring the claim but dismissed the substantive judicial review. The appellant now appeals to the Supreme Court.

The issue in 2022/0168 is:

Whether periods of time the appellant spent in the UK after overstaying a visa should be considered as time in the UK for the purpose of establishing 10 years' continuous lawful residence for an application for indefinite leave to remain in the UK. During the ten year period, the appellant had periods with leave and without leave to remain.

The Supreme Court unanimously dismisses each of the appeals.

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