Afzal, R (on the application of) v Secretary of State for the Home Department [2023] UKSC 46

Two appellants challenged refusals of indefinite leave to remain based on long residence. The Supreme Court considered whether section 3C of the Immigration Act 1971 extends leave when applications are invalid for non-payment of fees, and interpreted 'disregarded' in paragraph 276B(v) of the Immigration Rules regarding overstaying periods.

Facts

Mr Afzal, a Pakistani national, and Mr Iyieke, a Nigerian national, both applied for indefinite leave to remain (ILR) in the United Kingdom on grounds of long residence under paragraph 276B of the Immigration Rules. Mr Afzal’s 2017 application for leave was rejected as invalid because he failed to pay the Immigration Health Surcharge (IHS) within the required timeframe. Mr Iyieke had a 111-day period of overstaying between periods of lawful residence. Both appellants argued their periods of overstaying should be disregarded under paragraph 276B(v), allowing them to satisfy the 10-year continuous lawful residence requirement.

Issues

Mr Afzal’s Appeal

(1) Does section 3C of the Immigration Act 1971 extend leave where an application is treated as invalid for failure to pay the IHS? (2) Does ‘disregarded’ in paragraph 276B(v) mean overstaying periods count positively towards the 10-year requirement?

Mr Iyieke’s Appeal

What is the meaning of ‘the previous application’ in paragraph 276B(v)(a)?

Judgment

The Supreme Court dismissed both appeals. Lord Sales delivered the unanimous judgment.

Section 3C and Invalid Applications

Following R (Mirza) v Secretary of State for the Home Department, section 3C only applies to valid applications. Where an application is combined with a fee waiver request, it is conditionally valid until the fee requirement is confirmed. Once Mr Afzal failed to pay the IHS within 10 working days of the request, the application became invalid by operation of law under article 6(1)(c)(ii) of the 2015 Order.

“In my judgment the invalidity would naturally be said to arise at the point where the applicant is no longer able to meet the condition which would ensure the continued validity of the application.”

Meaning of ‘Disregarded’

The Court held that ‘disregarded’ means the period of overstaying is ignored and does not break continuity between periods of lawful residence, but does not positively count towards the 10-year requirement:

“the natural meaning of a period being disregarded is simply that one should not have regard to it; it should be ignored.”

Mr Iyieke’s Case

The phrase ‘the previous application’ in paragraph 276B(v)(a) refers to the application that resulted in the grant of leave which ended the overstaying period, not any unsuccessful application made during overstaying.

Implications

This judgment clarifies the operation of section 3C with respect to conditionally valid applications and confirms that periods of overstaying which are ‘disregarded’ under paragraph 276B(v) operate as a shield preventing rejection but do not count positively towards the 10-year continuous lawful residence requirement. The Court also commented on the poor drafting of the Immigration Rules, urging completion of redrafting efforts.

Verdict: Both appeals dismissed. Mr Afzal’s application was invalid once he failed to pay the Immigration Health Surcharge within the required period, so section 3C did not extend his leave. The word ‘disregarded’ in paragraph 276B(v) means periods of overstaying do not break continuity but do not count towards the 10-year requirement. Mr Iyieke’s unsuccessful application did not qualify as ‘the previous application’ under paragraph 276B(v)(a).

Source: Afzal, R (on the application of) v Secretary of State for the Home Department [2023] UKSC 46