Continuous residence requirement case study: Hoque & Ors v SSHD

The recent case of Hoque & Ors v Secretary of State for the Home Department [2020] EWCA Civ 1357 (“Hoque & Ors”) is a landmark case for considering the continuous residence requirement in 10 year long residence applications. The judgement specifically considers whether any current period of overstaying will be disregarded and the interpretation and understanding of the Immigration Rules where there are periods of overstaying. Our immigration solicitors in London have the experience in dealing with successful long residence applications which are complex in nature due to issues with the continuous residence requirement. We would be happy to arrange a consultation to assess your circumstances and advise on the prospect of a successful long residence application so please contact our immigration team today.

Background of Hoque & Ors

The Cart Judicial Review judgement considers 5 applications for permission to appeal (2 were the same case) which had been heard together on an inter partes basis. 3 of the appellants were nationals of Bangladesh and the other appellant was a Pakistani national. They all entered the UK as students over 10 years ago. The appellants all made applications for indefinite leave to remain (“ILR”) on the basis of their long residence in the UK. Their applications were refused because at the time of the submission of their applications, the appellants had become overstayers. The judgement which can be accessed below sets out the full background of the circumstances and how and when the appellants came to overstay in the UK.

What is 10 year ILR?

10 year ILR is the length of time an applicant must be lawfully in the UK before applying for settlement. The requirements for 10 year ILR can be found under paragraph 276B of the Immigration Rules. One of the main requirements for 10 year ILR is lawful residence, which we explore in detail below. Time spent on different visa routes can be combined for 10 year ILR, whereas applicants applying for settlement after 5 years must have spent 5 years lawfully in the UK under the same route. One of the most common routes for 10 year ILR is the student visa routes (previously under Tier 4 of the points based system) combined with further leave to remain as:

The Tier 1 routes are closed to new applicants with the Tier 1 Entrepreneur and Graduate Entrepreneur routes being replaced by the Start-up and Innovator visas. Further leave to remain from these new categories may also be combined for 10 year ILR applications.

What is lawful residence?

Lawful residence means time spent in the UK on a valid visa. A break in lawful residence can be one of the following:

  • Time spent outside the UK for more than 18 months in total over the 10 year period; or
  • Time spent outside the UK for more than 6 months at any one time; or
  • Time spent outside the UK for less than 6 months but either had no lawful leave on departure or return; or
  • If deported or removed from the UK; or
  • Left the UK after having been refused a visa; or
  • Showed a clear intention of not returning to the UK when leaving; or
  • Left the UK with no reasonable expectation of being able to lawfully return to the UK; or
  • Whilst serving any period of imprisonment.

Facts of Hoque & Ors

The key elements in the appellants’ cases for the first 3 appellants give rise to the following issues:

  1. their last period of limited leave expired before they had accumulated 10 years’ continuous lawful residence in the UK;
  2. they did not make any further application prior to the expiry of that leave, so as to attract the operation of 3C leave and accordingly became overstayers at that point;
  3. they made a further application for leave within 14 days (1st and 2nd appellants) or 28 days (3rd appellant) of the expiry of the earlier leave, which was in due course varied so as to become an application for ILR;
  4. that varied application was pending at the 10th anniversary of their arriving in the UK but was subsequently refused.

These are all therefore cases of “open-ended overstaying”.

Judgement of Hoque & Ors

It was concluded that the cases raise “…a serious point of law about the meaning of paragraph 276B”. The judgement indicates that the Immigration Rules need to be amended to be clearer on the point of overstaying and lawful residence. Historical overstaying, such as overstaying between periods of leave to remain may be allowed where paragraph 39E of the immigration Rules applies (the 14 day ‘grace’ period). However, unless the applicant has been in the UK for at least 10 years on a lawful and continuous residence basis and the requirements of 39E apply any period of current overstaying will not be allowed.

Using our Immigration Solicitors in London to submit a 10 year ILR application

Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration status. It is possible to instruct an immigration and visa legal representative to submit a 10 year long residence application.

Caseworkers at the Home Office are trained to reject applications which are improperly prepared, for example by failing to provide the correct supporting evidence. In order to ensure your 10 year ILR application succeeds, all necessary documents must be provided.

This can be a significant administrative task and you will need to submit the correct documentary evidence. The UK Immigration Rules are complex and a legal representative can help ensure that your ILR application meets the Immigration Rules.

Successful 10 year ILR applications with our Immigration Solicitors in London

Our team of solicitors and barristers are specialist immigration lawyers who act in your best interest. We offer a client-tailored approach from the outset. From the very first meeting, we will be able to advise you in respect of your immigration status and the merit of your long residence application before your matter even reaches the Home Office UK Visa & Immigration department. We can assist you with the preparation and submission of your 10 year ILR application and ensure that you meet all the requirements of the relevant rules.

We are based in the legal epicentre of London, just across the road from the Royal Courts of Justice in order to ensure we get the best results for our clients. LEXVISA is just minutes away from the Immigration and Asylum Tribunal, the Royal Courts of Justice and other central London courts.

Preparation is the key to a successful long residence ILR application. Our UK immigration and visa solicitors are here to guide you through the complex immigration rules and requirements. If you wish to meet one of our lawyers, please call our Immigration Team so we can assess your case and arrange your legal consultation.

Contact our London immigration solicitors on 02071830570 or complete our contact form.

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