MBOMSON AGAINST THE SECRETARY OF STATE FOR THE HOME DEPARTMENT [2019] ScotCS CSOH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MBOMSON AGAINST THE SECRETARY OF STATE FOR THE HOME DEPARTMENT [2019] ScotCS CSOH_81 (24 October 2019) URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSOH_81.html Cite as: [2019] ScotCS CSOH_81, 2019 GWD 35-563, 2020 SLT 12, [2019] CSOH 81

[1] This petition seeks judicial review of a decision of the Secretary of State for the Home

Department (the respondent) rejecting the petitioner’s application for indefinite leave to

remain in the United Kingdom. It raises an issue recently decided by the Court of Appeal -

see R (Ahmed) v Secretary of State for the Home Department [2019] EWCA Civ 1070. That

judgment is not binding upon this court and I was asked not to follow it. Parties are agreed

that if I accept the invitation the decision complained of should be reduced. On the other

hand, if the approach of the Court of Appeal is adopted, the petition must be refused.

[2] The matter turns on the proper interpretation of paragraphs 276B(i)(a), 276B(v)

and 39E of the Immigration Rules. In summary paragraph 39E allows overstayers to make

an application out of time so long as it is made within 14 days of the expiry of an existing

leave to remain. (Until recently the period was 28 days.) Paragraph 276B sets out the

requirements for a grant of indefinite leave to remain on the ground of long residence in the

UK. One of the requirements (paragraph 276B(i)(a)) is that the applicant must have had at

least 10 years continuous lawful residence in the UK. Another (paragraph 276B(v)) is that

the applicant must not be in the UK in breach of immigration rules, except that, where

paragraph 39E applies, any current period of overstaying will be disregarded, as will any

previous period of overstaying, all so long as the application is (or was) made within the

[3] The petitioner submits that the effect of these provisions is that, for the purpose of

deciding whether an applicant has demonstrated at least 10 years continuous lawful

residence in the UK, any period of overstaying is counted towards lawful residence so long

as the period allowed by paragraph 39E has not been exceeded. It was said that this follows

from the reference in paragraph 276B(v) to such periods being “disregarded”. The

petitioner’s circumstances are such that it is only if this proposition is correct that she can

demonstrate at least 10 years unbroken lawful residence in the UK.

[4] The submission for the respondent is that any gaps in lawful residence arising from

applications being made by an overstayer must be taken into account when deciding

whether the 10 years continuous lawful residence requirement is met. The disregard

expressed in paragraph 276B(v) applies only in respect of the requirement that the applicant

must not be in breach of immigration laws. It has no relevance to the separate requirement

[5] The Court of Appeal described the issue as follows: does paragraph 276B(v) operate

to cure short “gaps” between periods of lawful residence so as to entitle an applicant to

claim 10 years lawful continuous residence under paragraph 276B(i)(a)? For the reasons set

out in paragraph 15 of its judgment, the court said no. The provisions in 276B(i)-(v) are

separate, freestanding provisions, each of which must be met. Sub-paragraph (v) was not

drafted as an exception to sub-paragraph (i)(a). It has a self-contained meaning. So long as

paragraph 39E is in play, it simply allows any current or earlier period of overstaying to be

overlooked in respect of satisfying the requirement not to be in breach of immigration laws.

“The critical point is that the disregarding of current or previous short periods of

overstaying for the purposes of sub-paragraph (v) does not convert such periods into

periods of lawful LTR; still less are such periods to be ‘disregarded’ when it comes

to considering whether an applicant has fulfilled the separate requirement of

establishing ’10 years continuous lawful residence’ under sub-paragraph (i)(a).”

The court narrated further reasons in support of its decision - see paragraphs 15(5)-(8).

[6] While I have had regard to the submissions made on behalf of the petitioner to the

effect that the Court of Appeal erred, I am nonetheless in full agreement with its decision

and reasoning. Paragraph 39E has no relevance to or impact upon the operation of

paragraph 276B(i)(a). It follows that the petition is refused.

Scottish Court of Session Decisions