The Afzal Case

The following is my own work, and no AI has been used in its making.

Extracted from a Word Document.

Facts

Mr Afzal had been resident in the UK since February 2010, after entering with a Tier 4 student visa. He was granted further leave until 14 July 2017, by which time he had again applied for leave to remain along with a waiver to pay the application fee, which came as part of The Immigration (Health Charge) Order 2015 article 3(1).[1] The Secretary of State rejected this concession and notified Mr Afzal of the requirement to pay the relevant fee and the IHS, sent on 18 October. Mr Afzal paid the application fee on 1 November but not the IHS. Because Mr Afzal did not pay this, the Secretary of State rejected his application altogether on 22 January 2018. Mr Afzal sent a new application along with payment of the IHS on 2 February 2018. This was granted on 5 September 2019. Having spent 10 years in the UK, Mr Afzal applied for indefinite leave to remain (ILR), as outlined in paragraph 276B of the Immigration Rules and relying on section 3C of the Immigration Act 1971.[2] This was refused, citing the gap in lawful residence between 14 July 2017 and 5 September 2019. Mr Afzal launched judicial review.[3]

Issue

The primary issue is whether 3C applies to an application rejected because of failure to pay IHS in time, so that leave would be extended until the application for variation is decided or withdrawn, as detailed in 3C(2)(a). A second issue is whether the word ‘disregarded’ can be considered as contributing to the 10-year residence in the UK necessary to apply for ILR, as defined under the paragraph 276B of the Rules.[4]

Decision & Reasoning

The unanimous decision of the Court was to affirm the Court of Appeal’s decision to dismiss the appeal. Regarding section 3C, The 2015 Order required that the IHS was inseparable from the application; when the Secretary of State requested its payment within 10 working days, the failure of Mr Afzal to do so resulted in the application being treated as invalid as outlined in section 6 of The 2015 Order and Regulation 37 of the Immigration and Nationality (Fees) Regulations 2011, which states applications must be accompanied by the specified fee to be valid.[5] R (Mirza) v Secretary of State for the Home Department establishes that section 3C only applies if a valid application for variation of leave is made.[6] Therefore, the Court reasoned, Mr Afzal could not avail himself of section 3C.[7] His subsequent application made 2 February 2018 was outside the 14-day grace period within paragraph 39E(2)(b)(ii) from this original leave to remain, breaking continuity of residence within paragraph 276B, thereby invalidating his request for ILR.[8]

The second issue is whether the ‘disregarded’ period of overstaying can contribute to the continuous ten-year lawful residence required under paragraph 276B(i)(a). The Court relied on the ‘natural meaning’ of disregarded, which Sir Patrick Elias of the Court of Appeal defined as ‘should be ignored’.[9] The Court followed Hoque v Secretary of State for the Home Department, dividing this question into a first and second limb;[10] first, the satisfaction of the long residence requirement for ILR under paragraph 276B and satisfaction of its subsections (i)-(iv); second, qualification for period of overstaying between lawful periods of residence, allowing for applications not to be disqualified if it fulfils paragraph 39E. The Court agreed that 39E(2)(b)(i) applies to Mr Afzal; Mr Afzal’s 2 February 2018 application fell within the 14-day window, satisfying 39E(2)(b)(i). Regarding the first limb, The Court reinforced the Court of Appeals judgment that paragraph 276B(v) acts as ‘shield… not a sword’.[11] This means Mr Afzal’s continuity of residence is protected but cannot be used to add to lawful residency because paragraph 276A(b) defines lawful residence as continuous residence pursuant to leave. Mr Afzal had a prolonged period of overstaying; hence, unlawful. If the Rules had intended for overstaying to count as lawful residence, it would’ve said explicitly. Consequently, the time between 17 July 2017 and 5 September 2019 did not count towards his lawful residency in the UK.[12]

Convincing?

The Court’s consistent reinforcement of stare decisis lends much favour to the decision as being sound and convincing; the Court reinforced Lord Carnwath’s remarks in paragraph 33 of the Mizra Case which agreed that an application unaccompanied by an appropriate fee made the application invalid ab initio.[13] Additionally, it reinforces the Waqar Ali Case [2021], which decided that applications made within the paragraph 39E period of overstaying was not an application made in time.[14] Moreover, to suggest an overstaying period should count as lawful residence is to require the courts to treat a period without leave as if it were a period with leave, which transforms a void legal state into a valid one. Section 3C extends leave only when a person has made a valid application before their previous leave expires; an application submitted without a required fee is incapable of triggering legal consequences, subject to ten working days. If Parliament has stipulated that an application must be accompanied by a fee/IHS, then the courts cannot retrospectively cure the omission. It never existed as a legal application.[15] This is the logic the Court adopted when it dismissed the argument that an invalid application might nonetheless extend leave under Section 3C.[16]

Critics of this judgement may suggest the deference to statute is an abdication of the watchdog duty of judges to Parliament, unaided by the final remarks being a call to action to Parliament to draft more comprehensive Immigration Rules.[17] However, courts have no power to alter substantiative legal provisions within legislation and must work to understand Parliament’s unambiguous meaning. The decision of the Court to defer to the government’s intention is their proper role.[18] This does not mean courts act as mouthpieces; judges have to provide their own interpretation of the case, and of the doctrine of precedent set by their judicial forebearers. This case is no different; the Court filled in the gaps left by Hoque and made a full judgment on the meaning of ‘disregarded’. This means the Court has not merely deferred to the government.

It can be argued a more purposive approach to paragraph 276B may have factored that when Mr Afzal’s 2013 application was refused, a tribunal allowed his appeal on human rights grounds. Additionally, Mr Iyieke, the other applicant, had his 2015 application allowed by a tribunal on family and private life grounds. A court which ignores the Convention, pertinently Article 8[19], could limit a country’s capacity to protect migrant’s rights as compared to that of non-migrants. However convincing, the basis on which the argument is made —that without the strict adherence to human rights legislation migrants would have justice perverted against them— is not a sound one. As John Major, ‘We have no need for a bill of rights because we have freedom’.[20] What this judgment manifests is not a suffocation of human rights, it is simply an enforcement of the true intention of legislation, namely the Immigration Act and its amendments. Although imperfect, common law is a sturdy instrument for the protection of these rights, and, as Lord Cooke echoed, ‘Conventions… respond by recognising rather than creating them’.[21]

Conclusion

The Court’s judgment is a convincing conclusion; it follows precedent, and there appears to be little dispute that it captures the true intention of the statutes before it. The strongest criticisms that can be lodged are those made on grounds beyond, it seems, the remit of the Court. They pertain much more to the discussion on the fundamental rights of migrants in a broader sense. The Afzal and Iyieke case ultimately come to the same conclusion; the proper interpretation of the intention of Parliament in order to limit the scope of legislation from effecting change which was not the purpose of said legislation. The Court’s decision, therefore, to disallow Mr Afzal from availing himself of Section 3C and to take the natural meaning of ‘disregarded’ seems a strongly backed and convincing judgment.

 

 

 

 

 

Bibliography

Table of Cases

UK Supreme Court / House of Lords

R (Afzal) v Secretary of State for the Home Department; R (Iyieke) v Secretary of State for the Home Department [2023] UKSC 46

R (Mirza) v Secretary of State for the Home Department [2016] UKSC 63

R v Secretary of State for the Home Department, ex p Daly [2001] UKHL 26

Court of Appeal (England and Wales)

Hoque v Secretary of State for the Home Department [2020] EWCA Civ 1357

Secretary of State for the Home Department v Waqar Ali [2021] EWCA Civ 1357

Legislation

Human Rights Act 1998, s 1(1)(a) and Sch 1 art 8

Books

Forsyth C, The Metaphysics of Nullity (OUP 2021)

Goldsworthy J, The Sovereignty of Parliament: History and Philosophy (Clarendon Press 1999)

Other Sources

Major J, ‘Speech on the British Constitution’ (John Major Archive, 26 June 1996) https://johnmajorarchive.org.uk/1996/06/26/mr-majors-speech-on-british-constitution-26-june-1996/ accessed 7 December 2025

[1] R (Afzal) v Secretary of State for the Home Department; R (Iyieke) v Secretary of State for the Home Department [2023] UKSC 46 [26]

[2] ibid [25]

[3] ibid [10]–[11]

[4] ibid [34]

[5] R (Mirza) v Secretary of State for the Home Department [2016] UKSC 63 [5]

[6] ibid [33]

[7] Afzal (n 1) [41]

[8] ibid [65]

[9] ibid [67], [71]

[10] Hoque v Secretary of State for the Home Department [2020] EWCA Civ 1357 [29]–[35]

[11] Afzal (n 1) [78]

[12] ibid [70]

[13] Mizra (n 6)

[14] Secretary of State for the Home Department v Waqar Ali [2021] EWCA Civ 1357 [36]–[37]

[15] Christopher Forsyth, The Metaphysics of Nullity (OUP 2021) 155–6, 159–60

[16] Afzal (n 1) [61]

[17] ibid  [91]

[18] Jeffrey Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Clarendon Press 1999) 279–80

[19] Human Rights Act 1998, s 1(1)(a), Sch 1 art 8

[20] John Major, Speech on the British Constitution (John Major Archive, 26 June 1996) https://johnmajorarchive.org.uk/1996/06/26/mr-majors-speech-on-british-constitution-26-june-1996/ accessed 7 December 2025

[21] R v Secretary of State For The Home Department, ex p Daly [2001] UKHL 26 [30]