In Afzal v Secretary of State for the Home Department  EWCA Civ 1909, the Court of Appeal considered the meaning of continuous lawful residence under paragraph 276B of Immigration rules and its interrelationship with paragraph 39E.
The Court held
When applying for ILR, the period of ten years’ residence must be continuous. Continued residence as an overstayer after an immigrant’s specified period of leave has come to an end is not in general a period when the applicant is lawfully in the country. It will therefore break the continuity of lawful residence so that if fresh leave is subsequently given, the period of continuous lawful residence will have to start again. However, this will not be so where these periods of overstaying can be brought within a provision which specifically provides otherwise. In this case, that means either a period …, where the period has to be “disregarded” because it falls within the scope of paragraph 39E. … Whether a period falling within para.39E can also count towards the assessment of ten years is an issue in this appeal and turns on the meaning of “disregarded” in para. 276B(v).
Paragraph 39E provides that there may be periods when residence without leave, i.e. periods of overstaying, must be “disregarded”. Where this rule applies, it will not break the period of continuous lawful residence, but whether such periods actively count as periods of lawful residence when calculating whether the period of ten years has been achieved was in dispute.
The case concerned a Pakistani national who arrived in the UK on 23 February 2010 as a student. On 6 July 2017, while he still had valid leave, he applied for an extension of leave, but the application was rejected as invalid by a notice dated 22 January 2018. The appellant then made a fresh application on 2 February 2018 for further leave to remain. This application was successful, and on 5 September 2019, the appellant was given leave to remain until 4 March 2022.
On 28 February 2020, he applied for indefinite leave to remain on the basis that he had completed 10 years of continuous lawful residence qualifying him for indefinite leave to remain under the long residence rules. This application was refused on the basis that in the period between 14 July 2017 and 5 September 2019 the appellant did not have formal leave to remain and therefore during this period the appellant was not lawfully resident in the country with the consequence that the period of continuous lawful residence had been broken.
The appellant appealed against an Upper Tribunal decision to refuse permission for judicial review of the Secretary of States’ decision to refuse his application for Indefinite Leave to Remain on the basis that he had completed 10 years of continuous lawful residence under paragraph 276B of the Immigration Rules.
The Court ruled 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 count towards the calculation of the requisite ten years continuous lawful residence.