The claimant entered the United Kingdom lawfully on 13 February 2011 and resided with leave to remain as a student until 30 November 2012. He submitted an in-time application for post-study leave, which was later granted until 9 August 2014 when his leave expired. The claimant then made-an-out of time application for leave to remain on compassionate grounds on 2 September 2014. That application was made within 24 days of the expiry of his post-study leave. It was refused on 29 October 2014. A letter challenging that refusal was sent on behalf of the claimant on 25 November 2014, and he was then granted temporary admission on 28 November 2014. A period of temporary admission could, if leave was subsequently granted, count towards the ten-year period of continuous lawful residence. The claimant subsequently submitted an out-of-time application for leave to remain on family and private life grounds on 26 February 2015, and was granted leave to remain on 11 August 2017 on human rights grounds outside the terms of the Immigration Rules, until 11 February 2020. A further in-time application was made which was successful and the claimant was granted leave to remain until 30 July 2022, which he continued to benefit from. The claimant applied for indefinite leave to remain on 17 February 2021 on the grounds of ten years’ continuous lawful residence, which was refused by the Secretary of State for the Home Department in an e-mail dated 13 June 2021. It was recorded in the e-mail that discretion could not be exercised because the claimant had not complied with the rules, and that discretion would have been exercised in his favour only if he had applied within 28 days of his leave expiring. The claimant sought permission to apply for judicial review, which the judge refused, on the basis that there was a gap in the claimant’s residence which could not count towards continuous lawful residence. Accordingly, the requirements of paragraph 276B were not met, and paragraph 276B(v) did not avail him. The claimant appealed that decision.

It was established by recent authority that the provisions of paragraph 276B(v) qualified paragraph 276B(i). Accordingly the question that arose for consideration was whether the claimant had “had at least 10 years continuous lawful residence in the United Kingdom” (paragraph 276B(i)(a)) because the gap of 111 days as a period of overstaying between periods of leave would “also be disregarded where the previous application was made before 24 November 2016 and within 28 days of the expiry of leave” (paragraph 276B(v)(a)). The claimant contended that he satisfied the provisions of the rule because he made his application dated 2 September 2014 within 28 days of the expiry of leave, and it was made before 24 November 2016. The Secretary of State submitted that “the previous application” had to be a reference to the application which had resulted in the grant of leave which meant that the claimant could now make a further application for indefinite leave to remain on the basis of ten years’ continuous lawful residence.