Jeanell Hippolyte v Secretary of State for the Home Department
[2024] EWHC 2968 (Admin)
R (on the application of Afzal) v Secretary of State for the Home Department
28 November 2023
[2023] UKSC 46
Supreme Court
Two people appealed decisions about getting permanent UK residency. One didn't pay a required healthcare fee, so their application was rejected. The other had a gap in their legal residency, and the court decided that gap couldn't be ignored.
Key Facts
- •Two appeals concerning entitlement to indefinite leave to remain (ILR) in the UK under section 3C of the Immigration Act 1971, para 276B of the Immigration Rules, and Home Office guidance.
- •Mr. Afzal's case involved non-payment of the Immigration Health Surcharge (IHS) and the impact on section 3C.
- •Mr. Iyieke's case concerned the interpretation of para 276B(v)(a) regarding disregarding periods of overstaying.
Legal Principles
Section 3C of the Immigration Act 1971 extends leave only if a valid application for leave variation is made before expiry.
R (Mirza) v Secretary of State for the Home Department [2016] UKSC 63
An application for leave to remain is invalid if the IHS is not paid within the stipulated timeframe, even with a waiver application.
Immigration (Health Charge) Order 2015
'Disregarded' in para 276B(v) means a period of overstaying doesn't break continuity of lawful residence but doesn't count towards the 10-year requirement.
Immigration Rules, para 276B(v)
In para 276B(v)(a), 'the previous application' refers to the application resulting in the grant of leave that ended the overstaying period.
Immigration Rules, para 276B(v)(a)
Outcomes
Mr. Afzal's appeal dismissed.
His application was invalid due to non-payment of the IHS; section 3C didn't apply, and the overstaying period couldn't be counted towards the 10-year requirement.
Mr. Iyieke's appeal dismissed.
His earlier unsuccessful application didn't qualify as 'the previous application' in para 276B(v)(a) to disregard the overstaying period; the successful application that ended the overstaying period is the relevant one.
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