Issue 1 – Failure to pay the IHS – invalidity – section 3C

The first issue the Court had to consider was whether section 3C of the Immigration Act 1971 applies in circumstances where an application for leave to remain is considered invalid for failure to pay the Immigration Health Surcharge (IHS).

Mr Afzal had leave to remain in the UK until 14 July 2017 and made an in-time application for further leave to remain on 6 July 2017, together with an application for waiver of the relevant fees. On 18 October 2017, the Secretary of State rejected his fee waiver application and notified him that he had to pay the application fee and the IHS. Mr Afzal paid the application fee on 1 November 2017, but not the IHS. On 8 November 2017, the Secretary of State wrote to him to remind him to pay the IHS within 10 days. With the IHS having remained unpaid, the Secretary of State wrote to Mr Afzal on 22 January 2018 to notify him that his application for further leave to remain had been rejected as invalid. Mr Afzal did not challenge this, but made a fresh application for leave to remain, together with the relevant payments, on 2 February 2018. This application was successful and Mr Afzal was granted leave to remain on 5 September 2019.

The issue for the Court was whether section 3C had been engaged so as to extend Mr Afzal’s leave to remain in the UK beyond 14 July 2017 and, if so, until when. This turned on the issue of whether Mr Afzal’s application made on 6 July 2017 was invalid and, if so, when it had become invalid.

In considering this, the Court considered the effect of its previous judgment in R (Mirza) v Secretary of State for the Home Department [2016] UKSC 63. In Mirza it was held that section 3C applies only if a valid application for variation of leave to enter or remain is made. An application may be valid for the purposes of engaging section 3C in circumstances where the Secretary of State has discretion to treat an application as invalid after it is made. To apply this to Mr Afzal’s circumstances, the Court considered the contents of the Immigration (Health Charge) Order 2015. This states that the IHS must be paid when the person applies for entry clearance or leave to remain, but that the Secretary of State has a discretion to waive it. Further, it states that where a person fails to comply with the requirement to pay the IHS, the Secretary of State has a discretion to request the applicant to pay it. In the event of a failure to pay the IHS within 10 working days from when the request is sent in writing or made by telephone or in person, the application for leave to remain must be treated as invalid by the Secretary of State.

As such, the Court held that:

1. Given that Mr Afzal’s application for leave to remain was combined with an application for waiver of the fee, it was not valid ab initio (from the outset), because at that stage it was not known whether the payment of the fee was in fact required;
2. An application in these circumstances is conditionally valid. It becomes invalid if and when the obligation to pay the fee is confirmed following the refusal to grant the fee waiver, the request for the fee is sent, and the fee is not thereafter paid within 10 working days; and
3. In Mr Afzal’s case, the request was sent on 18 October 2017 and therefore the application ceased to be valid within 10 working days of that date, on 31 October 2017. It was on that date that Mr Afzal’s leave extended by section 3C ended, when his application ceased to be valid.

The Court broadly affirmed the Court of Appeal’s judgment, although it held that the 10 working days begin from the date the original request for the IHS is sent, which in Mr Afzal’s case was on 18 October 2017. The reminder to pay on 8 November 2017 was found not to affect the position. 

Further, the invalidity occurs by operation of law and not by way of a decision, so that the notification that an application is invalid, which in Mr Afzal’s case was sent on 22 January 2018, is not determinative of the invalidity or of the date on which the application ceased to be valid. The circumstances of Ms Ehsan’s case in Mirza were distinguished from Mr Afzal’s case.

Issue 2 – Paragraph 276B(v) – can “disregarded” periods of overstaying count towards the 10 year continuous lawful residence requirement?

As it was found that Mr Afzal’s leave to remain ended on 31 October 2017, he became an overstayer on that date and was an overstayer when he made his fresh application on 2 February 2018. However, as this was made within 14 days from the date when he was notified that his previous application had been rejected as invalid on 22 January 2018, the Court of Appeal previously had concluded that paragraph 39E(2)(b)(i) of the Immigration Rules applied, so that the period between the expiry of Mr Afzal’s leave in 2017 and the fresh grant of leave to remain on 5 September 2019, constituted book-ended overstaying within the meaning of paragraph 276B(v). Such a period ought to be disregarded for the purposes of calculating whether Mr Afzal had 10 years continuous residence under paragraph 276B(a)(i). The Secretary of State did not appeal against this finding and had accepted the Court of Appeal’s conclusion.

However, the Supreme Court had to consider what “disregarded” means in paragraph 276B(v): should the book-ended period of overstaying be treated as a period of lawful residence or not? The answer was no. 

The Supreme Court agreed with the Court of Appeal’s ruling that the natural meaning of “disregarded” is ignored. Whilst the period of overstay does not break the continuous lawful residence, it cannot be treated as such residence. Whilst Underhill LJ had concluded otherwise in Hoque v Secretary of State for the Home Department [2020] EWCA Civ 1357, (considered here) this was obiter and incorrect. The natural meaning of paragraph 276B(v) was held to be unambiguous and, therefore, it was not appropriate to refer to the Secretary of State’s guidance to interpret that rule. 

The Court affirmed the Court of Appeal’s decision and dismissed Mr Afzal’s appeal.

Issue 3 – Paragraph 276B(v)(a) – the previous application 

Mr Iyieke’s appeal related to the interpretation of “the previous application” in sub-paragraph (a) of paragraph 276B(v). Effectively, he made an application on 2 September 2014, after his leave had expired on 10 August 2014. The application was out of time, but within 28 days of his leave expiring. However, this application was refused without a right of appeal and Mr Iyieke made a further application on 26 February 2015 which was ultimately successful on appeal, leading to a grant of leave on 11 August 2017.

Mr Iyieke argued that, since he made an application within 28 days of his leave expiring, the 2 September 2014 application, and since he was then granted leave on 11 August 2017, his period of overstaying should be disregarded. The “previous application” was that of 2 September 2014, even though it was the 26 February 2015 application that resulted in the grant of leave.

The Supreme Court rejected this argument. It was held that “the previous application” referred to the application which resulted in the second leave being granted. In Mr Iyieke’s case that was the 26 February 2015 application, which was more than 28 days after the expiry of his leave and therefore did not come under paragraph 276B(v)(a)). The Court held that the interpretation argued on behalf of Mr Iyieke cannot reasonably be thought to be what the drafter intended, as it would lead to perverse effects, namely that it would be more advantageous to make an application out of time than prior to the expiry of leave.

For these reasons, Mr Iyieke’s appeal was dismissed.

Commentary

The circumstances of Mr Afzal’s case are unlikely to occur in the future. Fee waiver applications are now made electronically and the decision on the fee waiver application is made prior to the associated application for leave to remain being made. As such, whether the application fee and IHS are required will be known at the point of submission, as the Secretary of State would have reached a decision on whether to exercise his discretion to waive the fees or not. Further, applications for leave to remain are also made electronically and, in the absence of a fee waiver reference, the application fee and IHS have to be paid before the application is submitted. Nonetheless, the validity or invalidity of applications and, by extension, the application of section 3C are matters of law and they arise more often than not when considering a person’s immigration history for the purposes of a long residence application. The Supreme Court’s judgment in Afzal offers, therefore, helpful guidance in addition to that given previously in Mirza.

Interestingly, whilst, following Mirza, it was thought that the failure to enrol biometrics will never result in an application’s automatic invalidity in the absence of a decision rejecting an application on that basis, this will need to be revisited in view of the Court’s obiter observation in paragraph 50 of Afzal. In some circumstances the failure to enrol biometrics results in automatic invalidity, without any discretion on the part of the Secretary of State, and the timing of the invalidity would need to be determined accordingly by examining and applying the Biometric Regulations to the relevant facts of the case.

Finally, it is worth noting that the Supreme Court echoed the sentiments expressed by the courts at all levels when considering this part of the Immigration Rules: they are poorly drafted and result in uncertainties and expensive litigation. The Court stressed that the project to simplify and clarify the Rules should be completed.

Contact our Immigration Barristers 

For expert advice and assistance with long residence applications and appeals, contact our immigration barristers in London on 0203 617 9173 or complete our enquiry form below.