Applications for Indefinite Leave to Remain (ILR) can be made where an individual has completed a period of 10 years continuous lawful residence in the UK. Where section 3C applies, issues can arise. Here, we look at a recent case where this is considered.
In the recent case of Marepally v Secretary of State for the Home Department [2022] EWCA Civ 855, the Court of Appeal considered a number of issues regarding the Long Residence rule and issues regarding continuous residence. It upheld the decision to refuse the applicant’s ILR application and the reasoning, which we explore here, makes for interesting reading.
What is ‘Long Residence’?
To make a successful ILR application on the basis of 10 years continuous residence (Long Residence), an applicant must:
- have had at least 10 years continuous lawful residence in the UK, further information can be found here;
- not fall for refusal under general grounds for refusal
- be able to demonstrate sufficient knowledge of the English language and sufficient knowledge of life in the UK;
- not be in breach of UK immigration laws; and
- be able to show that; having regard to the public interest, there are no reasons why it would be undesirable to grant ILR.
To comply with the first requirement, the applicant must have held leave to enter or remain, temporary admission, or have been exempt from immigration control, continuously throughout the 10-year period.
Periods where the applicant has had section 3C leave can also count towards the period of continuous lawful residence.
Background
In the case in question, the applicant, an Indian citizen, initially entered the UK in February 2009. He held entry clearance under Tier 4 (General) (now known as the Student route), which was valid until January 2011. His leave to remain as a student was extended until April 2014. His leave to remain was then curtailed in January 2014 and his application for further leave to remain was rejected.
In April 2014, he submitted an application under Tier 4 (General), however, this was also rejected. His appeal was allowed in May 2016, after which he had varied his April 2014 application for permission to stay under Tier 5 (temporary worker) in January 2017.
The application was subsequently refused by the Home Office. However, when making its decision in March 2017, the Home Office failed to inform him that he had a right to appeal.
The applicant then applied for a Judicial Review, arguing that the decision to refuse his permission was unlawful and unjust. Permission was refused and the Upper Tribunal affirmed that the same decision would have been reached, had the application been submitted again.
The applicant then lodged a private life application which was refused by the Home Office on the basis that the refusal did not amount to a breach of his European Convention rights.
In January 2019, he applied for permission to stay in the UK based on Long Residence. He argued that the application had not been determined, as the notice served failed to comply with regulation 5 of The Immigration (Notices) Regulations 2003 and therefore section 3C leave applied until a compliant notice had been served on him.
The Home Office refused his application in June 2019, on the basis that he had not held permission to stay since 2017, and in any event, he had not accrued 10 years’ continuous lawful residence.
The Court of Appeal considered the extent to which applicants applying for ILR can rely on section 3C Immigration Act 1971.
Section 3C leave
Section 3C of the Immigration Act 1971 automatically extends permission to enter or stay in the UK in certain circumstances.
It applies where a person with permission to enter or stay in the UK makes an in-time application to extend or switch their permission, and their current permission expires before a decision has been made on their application.
However, the issue in Marepally was whether the failure to inform the applicant of his right to appeal the refusal of his Tier 5 permission was material to his current appeal against the decision made in June 2019 to refuse ILR.
As he entered the UK in February 2009, and notice informing him of his right to appeal the earlier decision had not been sent by February 2019, he contended that he had completed 10 years continuous lawful residence. The Home Office argued that the applicant did not have 10 years’ continuous lawful residence and failed to satisfy the requirements for the grant of ILR under paragraph 276B of the Immigration Rules.
The Court of Appeal found that ‘one of the functions of the notice… is to give the applicant information about his right to appeal against a particular decision’. However, in respect of the applicant’s temporary worker refusal, it held that it would not be necessary to ‘quash a decision if granting of such an order would…serve no practical purpose where no injustice has in fact been suffered’.
The main issue was whether any defect in the notice given in respect of the March 2017 decision, refusing his Tier 5 permission, was applicable to the current appeal against the decision made in June 2019 in which he was denied ILR. Unfortunately for the applicant, he was unable to satisfy the Court that this was the case, and it was found that ‘any leave had come to an end and was not continued under section 3C before the appellant had completed 10 years’ continuous lawful residence’.
Section 3C leave is beneficial for those who are waiting for a decision on the extension of their existing stay or a new grant of permission. However, the Court of Appeal found that the purpose of section 3C ‘is not to enable persons to be able to rely on continuations of leave for the purpose of building up 10 years’ continuous lawful residence in order to claim indefinite leave’.
Conclusion
Although an erroneous decision had been made by the Home Office, at the time the applicant did not benefit from lawful residence in the UK. Consequently, an appeal declaring that he did, was bound to be unsuccessful.
How our Immigration solicitors can help
Our team of solicitors are experienced in preparing ILR applications on the basis on your long residence in the UK and can offer expert guidance and assistance to you throughout the process.
If you require legal advice on this route or any other aspect of immigration law, we would be happy to help. Please contact us or use the enquiry form below.
