R (Ahmed) v Secretary of State for the Home Department (para 276B – ten years lawful residence) [2019] UKUT 00010 (IAC). In Ahmed, as you know, the UT held that:
“If there is no ten years continuous, lawful residence for the purposes of para 276B(i)(a) of the Immigration Rules, an applicant cannot rely on para 276B(v) to argue that any period of overstaying (for the purposes of 276B(i)(a)) should be disregarded. Para 276B(v) involves a freestanding and additional requirement over and above 276B(i)(a).”
The UT, in Ahmed, further added that (at 75):
“(1) Given the definition of “ lawful residence” in paragraph 276A(b), it is hopeless to argue that the Applicant could meet the first requirement under paragraph 276B(i)(a).
(2) It is obvious from the structure of paragraph 276B, read in conjunction with Paragraph 276D, that paragraph 276B(v) is a freestanding requirement additional to sub-paragraph (1)(a) and consistent with the general amendment of the Immigration Rules to the effect that applications for leave to remain by persons who have overstayed for more than 28 days will be refused on that Ground.
(3) There is no arguable merit in [Applicant’s] contention that the Applicant was to be treated, for the purposes of paragraph 276B, as if he had leave to remain and thus to be in “lawful residence ”; nor in the contention that the Respondent’s construction would lead to starkly unfair results to applicants. Rather, it is readily foreseeable that if applicants were to be so treated, it would create fertile ground for the abuse of the system.”
What this means is that any applicants who’s leave to remain expires before finishing 10 years lawful residence will not be able to complete 10 years even if they submit a fresh application within 14 days of their leave being expired unless subsequent leave is granted on that application.
For example, applicant ‘A’ exhausts his appeal rights on 1st January 2018 (finishing 10 years on 30 June 2018) and at the time of the final appeal decision only completed 9 years and 6 months in the UK. Applicant ‘A’ submits a fresh application which is rejected by the home office on 30 July 2018 (1 month after finishing 10 year). According to the above case Applicant ‘A’ is not entitled to ILR or leave to remain on the basis of lawful 10 years long residence because he did not have leave to remain from 2nd January onwards.
