Supreme Court clarifies application of Immigration Act 1971 and Immigration Rules in ILR appeals

Citation: [2023] UKSC 46
Judgment on

Introduction

The case of R (on the application of Afzal and Iyieke) v Secretary of State for the Home Department presents an in-depth analysis of the Immigration Act 1971, particularly section 3C, paragraph 276B of the Immigration Rules, and the proper interpretation of terms like “disregarded” within the context of immigration law. This article aims to dissect the legal principles surrounding indefinite leave to remain (ILR) under the Long Residence Policy Guidance, touching upon the effect of judgment in previous cases and the immigration health surcharge’s influence on an application’s validity.

Key Facts

The key facts center around two appellants, Mr. Afzal and Mr. Iyieke, who both appealed the refusal of ILR based on 10 years’ continuous lawful residence in the UK. The issues that the Supreme Court needed to resolve were whether section 3C of the Immigration Act 1971 extended the appellant’s leave to remain during pending applications despite failure to pay the Immigration Health Surcharge (IHS) on time, and the interpretation of “disregarded” periods of overstaying in ILR applications under paragraph 276B(v) of the Immigration Rules.

The legal principles discussed in this case involve the interpretation of legislative language and the application of procedural rules as they pertain to immigration status and appeals. Central to the decision was the consideration of:

  • Section 3C of the Immigration Act 1971: The effect of section 3C was complex, hinging on whether an application for leave to remain is ‘valid’ for the section to operate. In the case of Mr. Afzal, it was determined that section 3C did not apply to him because his application was deemed invalid due to non-payment of the IHS.
  • Paragraph 276B of the Immigration Rules: The court navigated subparagraph (v), particularly the meaning of “disregarded” in the context of periods of overstaying. It was determined that “disregarded” means to “ignore” the period of overstaying, not to treat it as lawful residence.
  • Mirza Judgment: Relied upon heavily, the precedent set in the Mirza case provided guiding principles for determining whether section 3C can extend leave if an application is rejected as invalid for non-payment of fees.
  • Immigration (Health Charge) Order 2015: This order reinforced that if the IHS is not paid as part of an application, the application for leave to remain must be treated as invalid, impacting section 3C’s scope of operation.
  • Clear and Rational Legislative Interpretation: The judges indicated the importance of interpreting the Immigration Rules in a way that avoids perverse or irrational outcomes and remains consistent with established definitions within the rules.

Outcomes

The outcomes of these cases are significant for immigration law. Mr. Afzal’s appeal was dismissed as section 3C was ultimately found not to apply due to the invalidity of his application by reason of non-payment, revealing an interpretive stance limiting the extension of leave in such instances.

For Mr. Iyieke, his appeal was also dismissed as the phrase “the previous application” in paragraph 276B(v)(a) was determined to refer to the application that directly resulted in the second grant of leave, not any application made within the period of overstaying, even if made within 28 days of the expiry of the previous leave.

Conclusion

The Supreme Court’s judgment in R (on the application of Afzal and Iyieke) v Secretary of State for the Home Department brings clarity and underscores the stringent interpretation of immigration rules around payment requirements and the validity of applications. It stresses that periods of overstaying are not to positively count toward continuous lawful residence requirements for ILR and that the legitimacy of an application for section 3C to apply rests on the procedural compliance of the applicant. This case sets a precedent for the precise nature in which immigration rules are to be interpreted and applied, providing valuable insights for UK legal professionals dealing with ILR cases on the grounds of long residence.

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