ILR 10 years lawful residence and paragraph 39E

[Msw]

Apparently, no, at least until T1 Ent is granted?

Thanks

[kumar123456]

Hi All, We were told at a substantive hearing (LR case) in UT this week, that COA judgement will be out in October as one of the judges is on holiday. In facts hearing in UT was adjourned till this come out.

Hi, any update?

[kumar123456]

Juned Ahmed correct but Musum Ahmed wrong


https://www.bailii.org/ew/cases/EWCA/Civ/2020/1357.html

[kumar123456]

https://www.bailii.org/ew/cases/EWCA/Civ/2020/1357.html

This the latest judgment related to 276B

[vinny]

https://www.bailii.org/ew/cases/EWCA/Civ/2020/1357.html

This the latest judgment related to 276B

Welcome Court of Appeal U-turn on ten-year lawful residence gaps.

[zimba]

I would like to stress this paragraph so people do NOT get confused:

In Masum Ahmed (not to be confused with the related case of Junied Ahmed v SSHD [2019] UKUT 10 (IAC)), it was held that each of the limbs of 276B stood alone: 276B(v) could not be used to cure any previous overstaying in between periods of leave.

The period of overstaying between the leave must be disregarded as per rules (this was the position of the HO in many cases) This is also the Masum Ahmed case judgment which is now correctly thrown out

However many people here applied when they did NOT complete 10 years of lawful residence and their period of overstaying was at the end (NOT between the periods of valid leave). Most of the these applicants were hoping their out of time pending application can be varied to the long residence while overstaying without first regularising their stay. That was the case in Junied Ahmed. That judgement still stands

[Cose]

Certainly an excellent judgement, especially the level of detail by LJ Underhill referring to fairness, HO Guidance and even looking back into as far as 2012 to categorize 276 B (v) as part of 276 B (i). Classic case of unnecessary litigation due to poor construction or amendments.

Had been haunting me since Masum Ahmed as of last year due to myself having a book ended overstay, which at that time was perfectly allowable.

Quite a remarkable effort by the Treasury Solicitors in executing a volte face, unlike Tom Tabori for HO in Masum Ahmed where it was not even brought up by HO and was accepted as law irrespective.

Shame for the open ended overstayers but it was thought to be an abuse of the system for long. Not sure how this would affect serial applications within 3C to make up 10 years. I would presume it is still lawful unless any of the applications is decided or invalidated before the variation.

[vinny]

to categorize 276 B (v) as part of 276 B (i).

I think the flaw was trying to treat 276B(i)-(v) as free standing?

[Cose]

Yes, indeed that was the flaw. Surprisingly such an interpretation to my knowledge didn't exist until proposed Mr Tabori in Masum Ahmed. It was shocking how the CoA just seemed to have adopted that interpretation and went on to have it published despite being a PTA application. The impulse judgement seems almost like a repeat of Sala (EFMs: Right of Appeal) [2016] UKUT 0411 (IAC). Probably just me, but makes you question the integrity of the judiciary at certain times.

LJ Underhill went on to dig through the Immigration changes to find that 276B (v) didn't exist until 2012 and obviously 39e until Nov 2016. His element [C] analysis points toward 276B (v) belonging as part of 276B (i). He does mention in para 59 Postscript that the HO has asked the Law Commission to simplify the Immigration Rules for the benefit of all involved.

I much rather prefer the tax payer's money spent elsewhere than in a court arguing poorly drafted regulations.

[vinny]

Indeed.

[kumar123456]

Not sure how this would affect serial applications within 3C to make up 10 years. I would presume it is still lawful unless any of the applications is decided or invalidated before the variation.

I think it's lawful, as there is no overstaying involved to define it as open ended

[zimba]

Not sure how this would affect serial applications within 3C to make up 10 years. I would presume it is still lawful unless any of the applications is decided or invalidated before the variation.

I think it's lawful, as there is no overstaying involved to define it as open ended

Correct. Time spent under Section 3C is lawful stay

[sazonsezan]

this does not make any sense

The facts
The Applicant (born on 30th January 1983), a citizen of Bangladesh, arrived in the United Kingdom on 23rd August 2002 on a valid student visa (EC). He was granted LTR from 29th July 2002 until 31st October 2005. On 31st January 2006, he was granted further LTR on the same basis valid until 31st January 2007 when his visa expired.

In December 2006, the Applicant visited Bangladesh (to see his mother). Following his return, on 23rd February 2007, the Applicant applied out of time for further LTR. On 19th March 2007, the application was returned as invalid. The Applicant re-submitted the application which was granted on 17th September 2007, with LTR valid until 31st May 2008.

------

How on earth was it possible for this guy to enter the country after his visa was expired on 31st of January. and then to top it he made an invalid application which was returned to him and then resubmitted. THATS NOT AT ALL A PARAGRAPGH 39E CASE. this is overstaying beyond the legal rules. As to claim 39e rules an applicant should be in the country (NOT LEFT) after his visa expires.

I don't understand why the Judge has made a decision confusing 39e further.
This Masum Ahmed decision has ruined everything. it means that "Juned Ahmed" which is awaiting permission would be denied as well. https://casetracker.justice.gov.uk/getD ... d=20182976

The Judge in Masum Ahmed's decision kind of put a full stop on our cases.

I have seen this guys case. probably he had returned on January before his visa expire afterwards he had made out of time application.

[REM12]

Hello, Port, Cattack and others
any news from ur hearing after hoques and ors judgement? junaid ahmed case is still pending as waiting from judgement from supreme court on other case. any idea or any update.i have my ftt hearing yesterday, waiting for judgement finger crossed.

[Ports]

Hello, Port, Cattack and others
any news from ur hearing after hoques and ors judgement? junaid ahmed case is still pending as waiting from judgement from supreme court on other case. any idea or any update.i have my ftt hearing yesterday, waiting for judgement finger crossed.

Hello Remi 12,

Our substantive hearing is in February and not sure it will be adjourned due to covid 19. Hoque and others have applied permission to appeal from Supreme court in November and do not know the outcome yet. Noticed Junaid Ahmed is set a side waiting Supreme Court decision. Do you know the details of Supreme court case???
Keep us update and hope you will have a positive out come. keep us updated.

[Omar2020]

Hi @ Remi 12

What date exactly in February, is it Waseem & ors - substantive review where the permission was given not considering the long residence policy ? Please update us . Thanks

[REM12]

Hi @ Remi 12

What date exactly in February, is it Waseem & ors - substantive review where the permission was given not considering the long residence policy ? Please update us . Thanks

HELLO, omar2020
Hearing in february is for ports not mine. my case is in ftt and have done hearing , just waiting for outcome. In supreme court case , i have no idea about it. But definitely there is some case waiting for hearing there i guess.

[Omar2020]

Thanks Remi

@Ports please could you update us about What date exactly in February for substantive review , is it Waseem & ors - substantive review where the permission was given not considering the long residence policy ? Please update us . Thanks

[Ports]

Hi @ Remi 12

What date exactly in February, is it Waseem & ors - substantive review where the permission was given not considering the long residence policy ? Please update us . Thanks

HELLO, omar2020
Hearing in february is for ports not mine. my case is in ftt and have done hearing , just waiting for outcome. In supreme court case , i have no idea about it. But definitely there is some case waiting for hearing there i guess.

Hello REM12,
Any news regarding outcome of your hearing??? Please update us when you receive it. Thanks

[vinny]

Hoque & Ors v The Secretary of State for the Home Department [2020] EWCA Civ 1357 (22 October 2020)

I do think that Lord Justice McCombe made a more logical argument.

My starting points would be:
38

It is thus in the nature of the Immigration Rules that they include no over-arching implicit purposes. Their only purpose is to articulate the Secretary of State’s specific policies with regard to immigration control from time to time, as to which there are no presumptions, liberal or restrictive. The whole of their meaning is, so to speak, worn on their sleeve.

10

The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy.

It may be difficult to have no presumptions. However, a minimum should be used, perhaps with Occam’s razor as a guide.

I think these presumptions seems reasonable.
1. the rules are consistent.
2. the natural and ordinary meaning of words are used.
3. the same words mean the same thing.

From 276C

Indefinite leave to remain on the ground of long residence in the United Kingdom may be granted provided that the Secretary of State is satisfied that each of the requirements of paragraph 276B is met.

Logically, I think this means:

276C is true, if each requirement of 276B is true.

Each requirement of 276B is true, if

• 276B(i) is true and
• 276B(ii) is true and
• 276B(iii) is true and
• 276B(iv) is true and
• 276B(v) is true.

There is an “and” conjunction between each of the sub-clauses.

A presumption that 276B(i) to 276B(v) are independent or free standing from each other may be premature. However, a semantic analysis of the sub-clauses may determine Logical Independence.

If 276B(v) is true, then there may exist some periods of overstay that are disregarded.

If there exists a period of overstay such that it is regarded under 276(i)(a) and disregarded under 276B(v), then this is a contradiction. Therefore, 276B(i)(a) and 276B(v) cannot be independent.

I believe a starting presumption that 276B(i) to 276B(v) are independent from each other is a flaw, leading to complex illogical arguments and further contradictions.

[Omar2020]

Thank you Vinny . Hopefully if the Supreme Court allow permission for all the applicants in Hoque & ors , someone like Mr Gill QC pursue like you . Vinny Wouldn’t it be better idea to share your argument to Mr Gill QC ? Or the UT substantial hearing in this month WASEEM & ors .

@Ports could you please update us what is the exact date of the UT substantial hearing ?

BW

[Omar2020]

@Vinny I am sure you know For UT hearing - There is case belongs Mr Zainul Jafferji Head of Clarendon Chambers . You may consider to use him as an Avenue to pursue your arguments . And also there is another counsel Mr. Parminder Saini who was also invited in HOque & ors as there were 5 counsels already in place they couldn’t accommodate him . He is outstanding barrister . I am sure you know Mr Saini who also got the authority of Balajigari.

[Happydays11]

https://casetracker.justice.gov.uk/getD ... d=20182976

Case results:
Track Your Case:
Current Status: Awaiting Supreme Court decision in other case

Tracking Information:
03-Feb-21: Case stood out
04-Apr-19: Bundle(s) approved
09-Jan-19: Letter sent to applicant/solicitor to request bundles and/or documents

[yhm75]

new decision related to 276b law full residence

http://www.bailii.org/uk/cases/UKUT/IAC/2021/96.html from upper tribunal

[zimba]

new decision related to 276b law full residence

http://www.bailii.org/uk/cases/UKUT/IAC/2021/96.html from upper tribunal

Nothing new there. It is the similar to what was discussed previously: indefinite-leave-to-remain/ilr-10-years ... l#p1953365