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Case results:
80CR 4.1. An applicant’s continuous residence period will be broken if any of the following apply:
……
- (d) the applicant does not have permission, unless:
- (i) the applicant made a successful application for permission to stay under the circumstances set out in paragraph 39E of Part 1 of these rules; or
- (ii) the applicant had permission when they left the UK, applied for entry clearance before that permission expired, or within 14 days of that permission expiring, and that application for entry clearance was successful; or
- (iii) CR 4.2. applies; or
CR 4.2. Any period without permission under CR 4.1.(d) which occurred before the applicant made a successful application for permission before 24 November 2016 will break the continuous residence period unless:CR 4.3. Where CR 4.1(d)(i), (ii) or (iii) applies, the periods of time where the applicant did not have permission will not count when calculating the continuous residence period.
- (a) the applicant made a successful application for permission (either in or outside the UK) within 28 days of the date their previous permission expired: or
- (b) the applicant had permission when they left the UK, applied for entry clearance before that permission expired and that application for entry clearance was successful.
However, 15More recent evidence casts further doubt about whether the Secretary of State did understand the Rules to allow para.39E periods of overstaying to be counted. We were shown at the hearing a recent Immigration Rules Appendix on Continuous Residence. It applies to certain categories of worker only. The explanatory memorandum says that it is not changing existing requirements but clarifying them. I will not set out all the relevant paragraphs, but in essence paras.C4.1 and C.4.3 provide that a para.39E period of overstaying will not break continuity of residence but nor will it count when calculating the continuous residence period. We did not hear argument about this document, and I do not put much weight on it. Suffice it to say that quite independently of it, I take the view that the rules do not allow the para.39E period of overstaying to count when deciding whether the ten year period has accrued, and if my understanding of this Appendix is right, it appears to lend further support to my conclusion.
Also, repeated in Hoque, Mr Gill had referred to parallel rules that apparently did/do allow the para.39E period of overstaying to count when deciding whether the five year period has accrued:(6) Fifth, by contrast, there are examples elsewhere in the Rules expressly providing that "continuous periods" of lawful residence in the UK shall be considered "unbroken", notwithstanding periods of overstaying, where paragraph 39E applies. There are to be found in specific areas where such an exception was clearly intended, e.g. Appendix ECAA relating to ECAA Nationals and settlement and e.g. Part 6A of the Rules in relation to the Points Based System. Part 6A provides as follows (emphasis added):
"Part 6A
Points-based system
245AAA. General requirements for indefinite leave to remain
The following rules apply to all requirements for indefinite leave to remain in Part 6A and Appendix A:
(a) References to a "continuous period" "lawfully in the UK" means, subject to paragraph (e), residence in the UK for an unbroken period with valid leave, and for these purposes a period shall be considered unbroken where:
…
- (iv) the applicant has any previous period of overstaying between periods of leave disregarded where: the further application was made before 24 November 2016 and within 28 days of the expiry of leave; or the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied. …" (emphasis added)
86Finally, Mr Gill referred us to the parallel rules governing ILR under the "points based system". There the Rules provide (in para. 245 AAA (a)) a definition of
References to "continuous period" "lawfully in the UK" [as meaning] … residence in the UK for an unbroken period with valid leave and a period shall be considered unbroken where: …
(iii) The applicant has any current period of overstaying disregarded where paragraph 39E of these Rules applies; and
(iv) the applicant has any previous period of overstaying between periods of leave disregarded where: the further application was made before 24 November 2016 and within 28 days of expiry of leave; or the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.
If CR 4.3 contradicts 245AAA(a), then it changed existing requirements. Then the explanatory memorandum 7.208In Masum Ahmed at 15(6) the court referred to these provisions as being a contrast to para. 276B where "…the Rules expressly [provide] that 'continuous periods' of lawful residence in the UK shall be considered 'unbroken', notwithstanding periods of overstaying, where paragraph 39E applies". The court's quotation of para. 245AAA(a) includes sub-para. (iv), but not (iii). This is perhaps understandable as that case concerned periods of previous overstaying between periods of leave. However, to me, this provision does not show a contrast with para. 276B at all. It is a similarity. It makes similar provision for "disregards" of both types of overstaying ("current" and "previous", without distinguishing between the two). I see no difference in para. 276B.
is misleading? Then I think any retroactive adoption of CR 4.3 prior to CR 4.3’s birth may be contrary to the provisions:Appendix Continuous Residence sets out how the continuous residence requirement for settlement applications is met. It does not change existing requirements, but clarifies:
and inconsistent?In relation to the changes above which take effect at 9am on 1 December 2020, if an application for entry clearance, leave to enter or leave to remain has been made before 9am on 1 December 2020, the application will be decided in accordance with the Immigration Rules in force on 30 November 2020.
the gap was 22/11/2017 to 5/9/2019 , if we calculate the Gap which was approx 20 months.that the appellant had not, by the date of the decision, completed ten years’ continuous lawful residence. There was a gap between 22 November 2017 and 5 September 2019 which, whilst it did not break the period of lawful residence, could not in my view count towards the calculation of the requisite ten years continuous lawful residence. In fact the appellant will have built up that period by now
https://assets.publishing.service.gov.u ... sible_.pdfLR 11.2. The following periods will not count towards the qualifying period for Long Residence:
(a) time spent on immigration bail, temporary admission or temporary release; and
(b) any period of overstaying between periods of permission before 24 November 2016 even if a further application was made within 28 days of the expiry of the previous permission; and
(c) any period of overstaying between periods of permission on or after 24 November 2016 even if paragraph 39E applies to that period of overstaying;
and
(d) any current period of overstaying where paragraph 39E applies.
Paragraph 39E(5) of the Immigration Rules was amended so that overstaying during periods where the person held an exceptional assurance or short-term assurance will be disregarded and will not break continuous residence. This period however does not count as lawful presence.
An applicant cannot rely on any periods with exceptional assurance or short-term assurance to count towards the qualifying period for settlement on any route.
