by 
12 Old Square would like to congratulate Darryl Balroop for achieving success in the Court of Appeal in the case of Mungur, R (On the Application Of) v Secretary of State for the Home Department [2021] EWCA Civ 1076
To access the judgement, please click on the following link –
https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2021/1076.html&query=(mungur)
Please see counsel’s detailed summary of the case below;
Held: Leave granted as a visitor counts towards 10 years continuous lawful residence, the temporary nature and purpose of leave as a visitor by itself is insufficient to satisfy 276A(a)(iii) of the Immigration Rules and confirmed as established in Hoque v SSHD [2020] EWCA Civ 1357 that a person may rely on a past period of 10 years continuous lawful residence and 276B(v)‘…must not be in the UK in breach of immigration laws…’ refers to your immigration status at the date of decision.[§41]
Relevant Rules:
276A(a) (iii) left the United Kingdom in circumstances in which he could have had no reasonable expectation at the time of leaving that he would lawfully be able to return;
276(B) (v) the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded.
Summary
The Appellant entered the UK on 16th April 2001 with a visit visa valid for 6 months. He left the UK in September 2001 and returned within 5 weeks as a student on 5th October 2001 with leave valid until 25th September 2003. The Appellant was granted further leave to remain as a student and then as a work permit holder until 13th July 2011. He then became an overstayer until 10th February 2016 when he was granted leave on human rights grounds until 8th May 2019. In 2019 the Appellant applied for indefinite leave to remain (ILR); 10 years continuous lawful residence.
The Secretary of State refused his application for ILR on the grounds that his continuous residence started on 5th October 2001 not 16th April 2001 as such he only had 9 years 9 months continuous lawful residence. Moreover, he had overstayed for a period of 1947 days from July 2011 to 2016. But granted him 30 months leave on human rights grounds.
The Appellant issued judicial review proceedings on the basis that it was unlawful/ unreasonable for the Secretary of State not to count his leave as a visitor towards his continuous lawful residence pursuant to Paragraph 276A-B of the Immigration Rules.
The Secretary of State took the view that the temporary nature of his residence as a visitor means that it is inconceivable his leave as a visitor would have been intended in the calculation of 10 years continuous lawful residence. Also, when the Appellant left the UK in September 2001 he had no reasonable expectation to return to the UK as such that leave is excluded pursuant to Paragraph 276A(a)(iii) of the Immigration Rules. The Secretary of State also relied on the 1947 days of overstaying to submit that the Appellant did not satisfy the requirement in Paragraph 276B(v) of the Immigration Rules.
The Upper Tribunal refused the Appellant’s application for permission to judicial review the Secretary of State’s decision and certified the application as totally without merit.
The Court of Appeal accepted the Appellant’s submissions that there is no aspect of the immigration rules or Secretary of State’s policy that excludes leave to remain as visitor from being counted towards 10 years continuous lawful residence. Further the fact that the grant of leave as a visitor is only temporary in nature it is not as the Secretary of State submits by itself sufficient to satisfy 276A(a)(iii) ‘ that there is no reasonable expectation that he lawfully be able to return to the UK’ because all grants of leave are temporary in nature save for settlement.
The Secretary of State conceded in the hearing that the Appellant’s overstaying was not a bar to ILR because he was not a current overstayer and not currently in breach of the immigration rules as such he was not caught by 276B (v)“ the applicant must not be in the UK in breach of immigration laws; Element A of Hoque v SSHD [2020] EWCA Civ 1357 [§8]
Darryl Balroop
