Afzal, R (on the application of) v Secretary of State for the Home Department

Factual and Procedural Background

Appellant 1 (a Pakistani national) lawfully entered the United Kingdom in 2010. His immigration history included successive grants of limited leave, a refusal, a successful tribunal appeal, and further limited leave until 14 July 2017. On 6 July 2017 he applied online to extend his leave and simultaneously sought a fee waiver. The Secretary of State rejected the waiver on 18 October 2017 and demanded payment of the application fee and the Immigration Health Surcharge (IHS) within ten working days. Appellant 1 paid the fee on 1 November 2017 but never paid the IHS. Pursuant to article 6 of the Immigration (Health Charge) Order 2015, the Home Office was obliged to treat the application as invalid. A fresh application lodged on 2 February 2018 was eventually granted on 5 September 2019. Relying on a supposed 10-year period of continuous lawful residence, Appellant 1 sought indefinite leave to remain (ILR) on 28 February 2020. The Secretary of State refused, concluding that the gap between 14 July 2017 and 5 September 2019 broke continuity. Judicial review was refused by the Upper Tribunal, permission was granted but the claim dismissed by the Court of Appeal, and Appellant 1 appealed to the Supreme Court.

Appellant 2 (a Nigerian national) lawfully entered the United Kingdom in February 2011. After initial periods of leave he became an overstayer on 10 August 2014. An out-of-time application on 2 September 2014 was refused. Subsequent applications culminated in a grant of leave from 11 August 2017 to 11 February 2020 and a further grant to 30 July 2022. On 17 February 2021 he applied for ILR based on long residence. The Secretary of State refused, finding a 111-day gap in lawful residence between 10 August 2014 and 28 November 2014. The Upper Tribunal refused permission for judicial review; the Court of Appeal granted permission but dismissed the claim. Appellant 2 appealed to the Supreme Court.

Legal Issues Presented

1. Whether section 3C of the Immigration Act 1971 extends leave when an in-time application is rendered invalid for failure to pay the IHS, thereby preventing an overstay (Appellant 1).
2. Whether the term “disregarded” in paragraph 276B(v) of the Immigration Rules means that a period of overstaying, although ignored for the purpose of breaking continuity, can nevertheless be counted towards the 10-year continuous lawful residence requirement (Appellant 1).
3. In paragraph 276B(v)(a), what does “the previous application” denote? Specifically, must it be the application that resulted in the second book-end grant of leave, or can it be any earlier unsuccessful application (Appellant 2).

Arguments of the Parties

Appellants’ Arguments

• Section 3C is triggered by the mere submission of an in-time application; subsequent invalidity should not nullify the statutory extension (Appellant 1).
• The word “disregarded” in paragraph 276B(v) positively includes the overstaying period within the 10-year calculation (Appellant 1).
• For paragraph 276B(v)(a), “the previous application” refers to any application lodged within 28 days of expiry of leave prior to 24 November 2016, irrespective of outcome (Appellant 2).

Secretary of State’s Arguments

• Mirza establishes that section 3C only applies to valid applications. Non-payment of the IHS renders an application invalid ab initio (unless remedied within the 10-day grace period), so section 3C never operated for Appellant 1.
• “Disregarded” in paragraph 276B(v) merely prevents the period of overstaying from breaking continuity; it does not convert unlawful presence into lawful residence.
• Under paragraph 276B(v)(a) the definite article (“the previous application”) points to the application that produced the second grant of leave; earlier unsuccessful applications are irrelevant. Therefore the 111-day gap for Appellant 2 cannot be ignored.

Table of Precedents Cited

Court's Reasoning and Analysis

Section 3C (Issue 1): Article 6 of the 2015 Health Charge Order makes payment of the IHS a mandatory validity requirement. Failure to pay within 10 working days obliges the Secretary of State to “treat the application as invalid.” Once invalid, there is legally no extant application capable of being “decided,” so section 3C can never extend leave. Appellant 1’s leave therefore expired on 14 July 2017; the section 3C extension ended (at the latest) on 31 October 2017.

Meaning of “Disregarded” (Issue 2): The Court emphasised statutory definitions: “continuous residence” requires lawful residence pursuant to leave. Paragraph 276B(v) operates as a shield, preventing an overstaying period from breaking continuity, but does not deem that period lawful. The ordinary meaning of “disregarded” is “ignored,” not “added.” Consequently, only the lawful residence periods flanking the overstay count toward the 10-year total.

“The previous application” in Paragraph 276B(v)(a) (Issue 3): The definite article denotes the application that yielded the second grant of leave which “book-ends” the overstaying period. Allowing any earlier unsuccessful application would create irrational advantages for late or hopeless applications and undermine the scheme of the Rules. Appellant 2’s 2 September 2014 application did not result in the later grant of leave; therefore the 111-day gap could not be disregarded.

Holding and Implications

HOLDING: Both appeals were DISMISSED. Neither appellant satisfied the 10-year continuous lawful residence requirement for ILR.

Implications: The decision confirms that: (1) section 3C protection is unavailable where an application is invalidated for non-payment of the IHS; (2) periods of overstaying “disregarded” under paragraph 276B(v) do not count toward the 10-year tally; and (3) “the previous application” in paragraph 276B(v)(a) is the application which produced the subsequent leave, not any earlier unsuccessful one. The ruling provides authoritative guidance on long-residence calculations but establishes no new statutory rights.