Welcome Court of Appeal U-turn on ten-year lawful residence gaps

In Hoque & Ors v SSHD [2020] EWCA Civ 1357 the Court of Appeal addressed the issue of gaps in lawful residence in ten-year long residence applications.

It found that the previous authority of R (Masum Ahmed) v SSHD [2019] EWCA Civ 1070 – which held that any applicant who had overstayed for any period of time in between visas would be ineligible to apply for indefinite leave to remain after ten years of otherwise lawful residence – was incorrectly decided.

In the course of making its decision, both the Secretary of State and the Immigration Rules in general come in for some pretty robust criticism.

Lord Justice Underhill gave the lead judgment of the court. He found that the part of paragraph 276B(v) of the UK Immigration Rules allowing short periods of previous overstaying to be disregarded.

The above new court decision will be cold comfort to the people whose appeals were dismissed in this case, but it does at least leave other applicants and their advisors with greater certainty on the issue of previous periods of overstaying.

Posted on Oct 26, 2020.

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