Secretary of State for the Home Department v Jimoh (R, on the application of) [2026] EWCA Civ 643
[2026] EWCA Civ 643Case No CA-2025-003160
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2025] EWHC 3129 (Admin)
ON APPEAL FROM THE HIGH COURT KING’S BENCH DIVISION (ADMINISTRATIVE COURT)
Ms Justice Obi
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22 May 2026
Before
LORD JUSTICE BAKERLORD JUSTICE LEWISLADY JUSTICE ELISABETH LAING
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTAppellantTHE KING ON THE APPLICATION OF JIMOHRespondentJack Anderson (instructed by the Treasury Solicitor) for AppellantAlasdair Mackenzie KC and Daniel Furner (instructed by Birnberg Peirce Solicitors) for RespondentHearing Hearing date: 7 May 2026Approved JudgmentThis judgment was handed down remotely at 4pm on 22 May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
Introduction
[1]On 3 October 2023, the Respondent (‘Mr Jimoh’) applied for indefinite leave to remain (‘ILR’). The Appellant (‘the Secretary of State’) refused that application in decision 1. In decision 2 she decided to give Mr Jimoh discretionary leave to remain (‘DL’) instead. Mr Jimoh applied for judicial review of decision 1. The Secretary of State reconsidered decision 1 twice. Obi J (‘the Judge’) quashed the Secretary of State’s decision on that second reconsideration. I will call that decision ‘decision 4’. She ordered the Secretary of State to give Mr Jimoh ILR. This is my judgment on the Secretary of State’s appeal against the Judge’s order.[2]This appeal concerns the correct construction of two of the Secretary of State’s policies. The first of those, which I will call ‘Policy 3’, is a policy about DL. The focus of the challenge and of the Secretary of State’s appeal is the ‘the transitional arrangements’ in Policy 3. The second of those is a policy about claims for leave to remain on medical grounds. I will call that policy ‘Policy 4’. The essential difference between the Judge's approach and that of the Secretary of State is whether, as the Secretary of State contends, she can rely in successive decisions on the same factor (in this case a past criminal conviction) to displace a presumption that she will ‘normally’ grant ILR to a person after a specific period of DL, or whether, as the Judge held, she can only rely on that factor once.[3]On this appeal the Secretary of State was represented by Mr Anderson, who did not appear below. Mr Jimoh was represented by Mr Mackenzie KC and Mr Furner. Mr Furner represented Mr Jimoh in the Administrative Court. I thank the advocates for their oral and written submissions. It was clear from their submissions that all the advocates had thought very carefully in the course of their preparation about the terms, and implications, of the relevant policies. The court asked Mr Anderson many questions in the course of his able oral submissions, which he answered fluently and well. Mr Mackenzie’s submissions were also characteristically nuanced and persuasive. I have not described either’s submissions in any detail in my judgment, but both arguments made me consider the terms of the relevant policies with care, and both, in different ways, have affected the approach in this judgment.[4]I have summarised the grounds of appeal in paragraph 67, below. For the reasons in this judgment I would dismiss the appeal on ground 1 and allow it on ground 2.
The facts
[5]I have taken the facts from the Judge’s judgment. Mr Jimoh is a Nigerian national. He was born in 1985. He claimed either to have entered the United Kingdom in 1989, or on 30 November 1990. He, his mother and his siblings entered the United Kingdom to join his father. According to the Secretary of State’s records, he entered on 7 July 1990.[6]He was diagnosed as suffering from Hepatitis B in 1998. At some point between 2002 and 2004 his kidney had to be removed. He was given ILR on 17 February 2001.[7]He was fined for the possession of an offensive weapon in 2004. On 28 April 2006 he was convicted of the possession of drugs of Class A with the intention to supply them. He was sentenced to 30 months’ imprisonment on 23 June 2006. He was released on home detention curfew on 4 December 2006. He was notified of the Secretary of State’s intention to make a deportation order (‘DO’) on 27 February 2007. He was detained under immigration powers on 12 May 2008. His appeal was dismissed on 8 September 2008. He was served with a DO on 1 December 2008. The DO invalidated his ILR. He applied unsuccessfully for the revocation of the DO. He appealed again. The First-tier Tribunal (Immigration and Asylum Chamber) (‘the F-tT’) allowed his appeal on article 8 grounds on 11 May 2010. On 14 October 2010 he was given DL until 14 October 2013. The Judge recorded that after policy changes in July 2012, ‘transitional provisions ensured that individuals who were first granted leave under the pre-2012 policy would continue to be considered under that policy through to settlement’ (judgment, paragraph 7).[8]Mr Jimoh applied for ILR in February 2013. The Secretary of State refused that application in December 2013. The Secretary of State gave further DL to Mr Jimoh on 10 December 2013, 2 October 2017 and 26 May 2021.[9]In 2021, Mr Jimoh formed a relationship with a Nigerian national (‘P’) who was in the United Kingdom unlawfully. She became pregnant and had a child. The relationship broke up when P was pregnant. Their child, D, was born. She is not a British citizen because neither of her parents had ILR when she was born. She would be entitled to register as a British citizen under section 1(3) of the British Nationality Act 1981 (‘the BNA’) if either of her parents is given ILR before she is 18 years old. D lives with P. Mr Jimoh is in regular contact with D.[10]On 3 October 2023, Mr Jimoh applied for ILR on the grounds of his long residence. On 24 April 2024, the Secretary of State made decision 1, refusing that application. On 21 May 2024, she gave him DL until 27 May 2027 in decision 2.[11]Mr Jimoh applied for judicial review of decision 1. Sweeting J gave him permission to apply for judicial review on 1 November 2024. The Secretary of State reconsidered decision 1 on 22 February 2025 in decision 3. Mr Jimoh filed amended grounds on 7 March 2025. On 20 March 2025, the Secretary of State refused P’s application for ILR. The application for judicial review was listed for hearing on 24 June 2025. The hearing was adjourned and re-listed.[12]Paragraph 15 of the Judge’s judgment recorded that, at a hearing on 24 June 2025, the Secretary of State had confirmed that Mr Jimoh’s application was to be considered(a) ‘under her policy on Medical Claims and under the Transitional Provisions of her Discretionary Leave Policy, the proper approach to which was set out by Chamberlain J in Ellis, and(b) Part 9 of the Immigration Rules is not therefore determinative of [Mr Jimoh’s] application without consideration of the individual circumstances of his case’. ‘Ellis’ is a reference to R (Ellis) v Secretary of State for the Home Department [2020] UKUT 82 (IAC). The reference in paragraph 15 of the judgment to ‘The Rules’ is a reference to the Immigration Rules (HC 395 as amended). I will also refer to them as ‘the Rules’.[13]Directions were made for further disclosure, and for the Secretary of State to make a further decision (‘decision 4’). The parties were also ordered to exchange amended skeleton arguments. The Secretary of State made decision 4 on 23 September 2025.
The relevant statutory provisions
[14]Section 3(1) of the Immigration Act 1971 (‘the 1971 Act’) gives the Secretary of State power to give leave to enter and remain. The Rules are statements of the Secretary of State’s policy (or ‘practice’) to be followed in the administration of the 1971 Act. She is obliged from time to time to publish such statements. Parliament may disapprove those statements by negative resolution (sections 3(2) and 1(4) of the 1971 Act). It is well settled that the Secretary of State’s power to give leave to remain is conferred by section 3(1) of the 1971 Act. It is not conferred by the Rules. It follows that, whatever the Rules may say, the Secretary of State has a statutory power to grant leave outside the Rules (‘LOTR’). The relevant policies The Discretionary Leave Policy before 2012 (‘Policy 1’)
The relevant policies
[15]The introduction of Policy 1 explained that Humanitarian Protection (‘HP’) and DL had been introduced on 1 April 2003 to replace exceptional leave. Both a failed asylum claimant and a person who made a human rights claim might qualify for DL. The purpose of Policy 1 was to explain the ‘limited circumstances’ in which it ‘would be appropriate to grant’ DL. That idea, and variants, are repeated elsewhere in Policy 1. DL was intended to be used ‘sparingly’. It was only to be granted if the Secretary of State was ‘satisfied that neither an enforced nor voluntary return [was] possible without material prejudice to the rights protected under’ it. DL was a form of leave. It was not to be granted on the grounds that there were temporary practical obstacles to return. The period of any grant would depend on the reason why it had been made. An initial grant would not be for more than three years and might be for a shorter time.[16]An application for an extension of DL would be subject to an ‘active review’. A person would ‘not become eligible for settlement’ until after six years’ leave. ‘This period will be longer, at least ten years, and potentially never, for those in the excluded category (see sections below on ‘Exclusion from HP/DL’)’ (see further paragraph 25, below). People who were given DL had access to public funds and were entitled to work.[17]The section headed ‘Criteria for Granting Discretionary Leave’ is divided into several parts. The first was about cases in which return would breach article 8 (on the grounds of family life in the United Kingdom). DL should not be granted without a ‘full consideration of Article 8 issues’. It should not be granted in non-asylum cases without reference to a senior caseworker. The third was medical cases. Policy 1 stated the test for a breach of article 3 in a medical case. DL should not be granted if a person could ‘avoid the risk of acute suffering by leaving the UK’.[18]The section on exclusion from Refugee Status, HP and DL explained that if a person would have established that he was a refugee or was eligible for HP but for his exclusion from those protections, he should normally be given DL for six months. The grounds for exclusion from HP also applied to DL. The grounds for such exclusion were in the HP Asylum Instruction (which I have called ‘Policy 2’: see paragraph 25, below). ‘A person who is excluded from [DL] will be expected to leave the UK. Where neither enforced nor voluntary return is possible without material prejudice to the rights protected’ under Policy 1, DL would usually be given for six months. A passage in bold type said ‘Where an individual has been excluded under this instruction, Ministers must be informed of any proposal to grant’ DL. Policy 1 also said that if a person qualified for DL under two headings, they should ‘benefit from the one that provides the longer period of stay’.[19]A further section of Policy 1 dealt with the length of time for which DL could be given. It described the ‘standard’ periods for such grants: three years for all cases involving rights under the European Convention on Human Rights (‘the ECHR’) (whether articles 8, 3 or other articles). The period for a person who was excluded from DL was six months. That period was said to apply ‘to the first grant and any subsequent grants following active review’. A further section was headed ‘Non-Standard Grant Periods’. It could be clear from the factors which had led to the grant of DL that they would be ‘short-lived’. An example was where leave had been given to enable a person to take part in a court case. In such cases a shorter period of leave would be appropriate.[20]Policy 1 also dealt with the curtailment and variation of DL. DL would normally be curtailed if ‘a person becomes subject to any of the grounds of exclusion criteria set out in [Policy 2]’ (see paragraph 25, below) (my emphasis). ‘This will usually apply where a person’s actions after the grant of [DL] bring them within the scope of those grounds. There may also be some situations where we become aware that a person is subject to one of the grounds of exclusion only after the grant of [DL]. Again, it would normally be appropriate to curtail leave in such cases’. Action to curtail or vary leave would only be ‘necessary’ where a person was subject to deportation but it was not possible to make a deportation order. An example was where deportation was not possible for article 3 reasons.[21]A further section of Policy 1 was headed ‘Applications for Further Leave’. A person was not ‘eligible for consideration for settlement’ until they had completed six years’ DL, or, in the case of persons subject to the exclusion criteria, ‘until they have completed at least ten years’ of DL. Anyone granted DL would therefore have to have at least one ‘active review’ before they were ‘eligible for consideration for settlement’. A request for an extension would be the subject of an active review to see if the applicant still qualified for DL ‘(or any other form of leave that is requested)’. All relevant information would be considered, including any relevant information which was provided with the original application for DL.[22]Under the heading ‘Granting an extension’, Policy 1 said that if a person still qualified for DL and did not qualify under the Rules, they should ‘normally’ be given an extension for a period in accordance with the section headed ‘Duration of grants’. If such an extension would bring the person beyond the time when they would be eligible for consideration for settlement, ‘(ie six or ten years)’ the extension should, instead, bring their aggregate length of stay up to whichever was the appropriate length. If the person no longer qualified, the request for an extension should be refused.[23]The next relevant heading was ‘Applications for Settlement’. A person would ‘normally’ become eligible for consideration for settlement after six years of DL. If the applicant was covered by ‘one of the exclusion categories’ they would not become eligible for consideration for settlement ‘until they have completed ten continuous years’ of DL. Any time spent in prison would not count towards the six or ten years. Policy 1 then said that ‘Where a person has held [DL] for an appropriate period and continues to qualify for [DL] they should be granted ILR/settlement’.[24]The final relevant heading was ‘Personal Decision by Ministers’. It said that where a person who was subject to ‘the grounds of exclusion’ had completed ten years of DL ‘they may be denied settlement where Ministers decide in the light of all the circumstances of the case, that the person’s presence in the United Kingdom is not conducive to the public good (this may be decided in the individual circumstances of the case, or for a category of cases). Reasons for this decision should be given. A further period of [DL] should be granted where it is not possible to remove the person. In such a case, for so long as the individual remains in the United Kingdom, a fresh decision will need to be taken at least every three years on whether settlement should continue to be denied’.
The HP Policy
[25]The grounds for exclusion from HP, which, by virtue of Policy 1, applied to DL, are in a policy entitled ‘Humanitarian Protection’ (‘Policy 2’). Under the heading ‘Exclusion Criteria’, Policy 2 explained that a person would not be eligible for HP if one of the listed sub-paragraphs of paragraph 339D of the Rules applied to his case. One of those applied if there were ‘serious reasons for considering that he has committed’ various acts ‘or any other serious crime’. ‘Serious crime’ was defined as ‘one for which a custodial sentence of at least twelve months has been imposed in the United Kingdom’.
The policy which was in force at the date of decision 4 (‘Policy 3’)
[26]The introduction to Policy 3, headed ‘Purpose of instruction’, says that Policy 3 explains ‘the limited circumstances in which it may be appropriate to grant’ DL. ‘It is intended to cover exceptional and compassionate circumstances, and, as such, should be used sparingly’. The policy intention is that people who do not meet the Rules should leave the United Kingdom, but that such circumstances might justify DL. There is further introductory material, including, on page 8, references to the relevant legislation and to the Rules. That says, among other things, that Part 9 of the Rules must be ‘consulted and applied before DL is granted’. There are then four sections which are relevant to the issues in this case. They are headed ‘Exclusion and Criminality’ (‘section 1’, on pages 14-15). Section 1 is in the first part of Policy 3 (pages 9-23, which deals with initial grants of DL, and its curtailment). Further relevant sections of Policy 3 are headed ‘Further leave applications’ (‘section 2’, pages 24-27), ‘Settlement applications’ (‘section 3’, pages 28-29), and ‘Transitional arrangements’ (‘section 4’, pages 31-32).[27]Section 1 tells decision-makers in all asylum and non-asylum cases to consider the impact of an applicant’s criminal history before granting any leave. If there are reasonable grounds for considering that an applicant should be excluded from asylum or HP, decision-makers are told to refer to the guidance on Exclusion. From 2 September 2011, the restricted leave policy replaced grants of DL for those excluded from protection under article 1F of the Refugee Convention. Restricted leave may be granted if removal would breach the United Kingdom’s obligations under the European Convention on Human Rights (‘the ECHR’). Where it is appropriate to cancel etc refugee status or HP, and the applicant does not fall within the restricted leave policy, DL may be appropriate.[28]If a person is not within the restricted leave policy, decision-makers are told to consider the impact of any criminality, ‘having regard as appropriate to Part 9 (General Grounds of Refusal), and, where an individual is not liable to deportation, paragraph 353B(i) of’ the Rules. Criminals or extremists should not normally benefit from leave on a discretionary basis under this policy because it is a Home Office priority to remove them from the UK’ (my emphasis). Section 1 recognises that there may be cases in which there are ‘exceptional reasons for granting DL to someone with a criminal history who does not fall within the restricted leave policy’. The period of leave which is appropriate, up to 30 months, will depend on ‘the individual circumstances of the case’. Some factors, indicating a need for active review, would justify a period of six months’ leave.[29]Section 2 applies to those granted an initial period of DL on or after 9 July 2012. Decision-makers are directed to the ‘Transitional arrangements’ (see paragraphs 36-37, below) where DL was granted before that date. In most cases, ‘an applicant will not be eligible to apply for settlement until they have had ten continuous years of limited leave.’ The formalities for making applications are described. Those to whom the restricted leave policy applies must not be given DL, but restricted leave.[30]All applications for further DL must be considered under Policy 3. Where the requirements for a further grant of DL are met, an applicant ‘should normally be given leave in accordance with the duration of grants section…’ An application must be refused if the applicant does not meet the DL requirements, ‘and there are no other grounds to grant…There is no automatic right to further leave or settlement and those who apply for further leave must qualify under the policy in force at the date of the decision’.[31]There is a sub-section in section 2, on page 26, headed ‘Further leave applications – General Grounds for Refusal (Criminality)’. Policy 3 explains that on 1 December 2020, the Rules were amended to introduce ‘a single threshold for a mandatory refusal’. That is a custodial sentence of at least twelve months. That threshold applies to all applications made after 9am on 1 December 2020. ‘This means that’ the applications of all claimants who have applied for permission after that date and who have been given a custodial sentence of 12 months or more must be refused. That is, however, qualified by the text which immediately follows (still on page 26).[32]Under the sub-heading ‘Considering further DL’, Policy 3 then refers to ‘a cohort of claimants’ who have been given DL in the past, in the knowledge of a sentence of 12 months or more. An exception may be made for an application from such a claimant and a further grant of DL may be made, ‘if the following criteria apply’. They include that the claimant has been given DL before, the circumstances at the date of the original grant of DL still apply, the offence was committed before the previous grant of DL, so that DL was granted ‘in the full knowledge of their previous conviction/convictions’, the claimant has not been convicted since the last grant of DL, and he does not fall within the restricted leave policy. If all the other requirements of Policy 3 apply, such a person may be given DL. If not, his application must be refused. If the claimant has no more convictions but his circumstances have changed, the decision-maker must consider whether to grant DL on a different basis.[33]There is a further sub-heading in section 2, ‘Considering Settlement’. Settlement is ‘a privilege, not an automatic right’. Previous grants of leave can lead to no expectation other than a further grant of leave for the same period. Further DL can be granted where ‘the above criteria applies’ [sic]. Any applications for ILR are to be considered under the Rules at the point of the application ‘unless there are exceptional mitigating circumstances that would otherwise warrant a grant of leave. You must continue to consider all applications for settlement on a case-by-case basis, applying the current GGfR rules and policy’. ‘GGfR’ stands for ‘general grounds for refusal’ (see paragraph 31, above).[34]Section 3 begins on the following page (page 28). This part of Policy 3 applies to those who were first given DL on or after 9 July 2012, and to whom, at the date of decision, the restricted leave policy does not apply. Decision-makers are again referred to the transitional arrangements for those whose DL was granted before 9 July 2012 (see paragraphs 36-37, below). Policy 3 repeats that a person ‘will normally become eligible to apply for settlement’ after ten years’ continuous limited leave. While time spent in prison after conviction does not count, periods of leave before and after imprisonment may be aggregated if the requirement for continuous residence is met. Decision-makers are referred to the effect of sections 3C and 3D of the 1971 Act.[35]Under the sub-heading ‘Considering settlement applications’ Policy 3 says that the application must be assessed to see whether the applicant still qualifies for DL. It might be possible in some circumstances to aggregate periods of LOTR and periods of DL. A person who has had DL for ten continuous years should be granted settlement ‘unless there are any criminality or exclusion issues’. Decision-makers are referred to the ‘Criminality and Exclusion’ section of Policy 3 (see paragraphs 27-28, above). Settlement should not ‘normally’ be granted if there is ‘a clear basis for thinking that’ within 12 months the factors which would justify DL will cease. ‘An individual may not be denied settlement under this section for more than 12 months beyond the normal qualifying period’. If the person no longer qualifies for DL, his application for settlement should be refused.[36]Section 4, ‘Transitional arrangements’ applies to those who were first given DL before 9 July 2012 and who then apply for further leave to remain or for settlement.[37]There are then four paragraphs which were the subject of detailed submissions at the hearing. They are not numbered in Policy 3. I have numbered them in the quotation below. ‘1. Those granted leave under [Policy1] will normally continue to be dealt with under [Policy 1] through to settlement if they continue to qualify for further leave on the same basis as their original DL was granted (normally they will be eligible to apply for settlement after accruing 6 years’ continuous DL …unless at the date of decision they fall within the restricted leave policy). 2. You must consider whether the circumstances prevailing at the time of the original grant of leave continue at the date of the decision. If the circumstances remain the same, the individual does not fall within the restricted leave policy and the criminality thresholds do not apply, a further period of 3 years’ DL should normally be granted. You must consider whether there are any circumstances that may warrant a departure from the standard period of leave. 3. If there have been significant changes that mean the applicant no longer qualifies for leave under the DL policy or the applicant falls for refusal on the basis of criminality (see exclusion and criminality section above), the further leave application should be refused. 4. Those granted DL for 6 months because of the refusal or withdrawal of asylum or humanitarian protection on the grounds of criminality and who do not fall within the restricted leave policy, must normally wait 10 years before being eligible to apply for settlement. Where an individual has accrued 10 years’ lawful residence under the DL policy and applies for settlement, you must consider Part 9 of [the Rules].’
The policy about leave to remain on medical grounds (‘Policy 4’)
[38]Policy 4 is entitled ‘Medical claims under Articles 3 and 8 of the European Convention on Human Rights…’. It is agreed that it applies to Mr Jimoh’s case. There are two relevant sections at the end of Policy 4. The first is headed ‘Granting further periods of limited or indefinite leave’. The second section is headed ‘Granting settlement’. The first section says that given ‘the high threshold’ in such cases, a further period of leave should only be granted in exceptional cases. It should be ‘extremely rare’ for a person to have accrued the period of leave necessary for a grant of ILR. An application for settlement must first be considered under the Rules. ‘However, when a claimant has held DL for 10 years (or 6 years under the transitional provisions of the DL policy), and continues to qualify on the same basis as the last grant of DL, you would generally grant ILR unless there is a compelling reason not to do so. You must refer to the guidance on [DL] for consideration of ILR applications’.
R (Ellis) v Secretary of State for the Home Department
[39]In Ellis Chamberlain J, sitting as a Judge of the Upper Tribunal (Immigration and Asylum Chamber), considered an application for judicial review of decisions made by the Secretary of State in 2019 to refuse the claimant’s application for ILR (‘the Application’) and, instead, to grant him DL.[40]The claimant had entered the United Kingdom as a visitor in 2000. His leave to remain was extended until 26 January 2001. He married S1 in 2002. He then applied for leave to remain as the spouse of a person who was settled in the United Kingdom. The Secretary of State refused that application, but not until 29 October 2010. In the meantime, he met S2 and had two children with her. They were both British citizens. He claimed asylum in February 2010. The Secretary of State refused that application and he did not appeal. On 26 March 2010 he was sentenced to 12 months’ imprisonment.[41]He then applied for leave to remain. He was given three years’ DL from 14 September 2011 until 13 September 2014. In September 2014, he applied for further DL. He was given a further three years’ DL in April 2016. By the time of that application, he had been in the United Kingdom lawfully for seven and a half years pursuant to two grants of DL. By then there had been ‘one potentially significant change of circumstances’ (paragraph 6). He had been sentenced to a further four months’ imprisonment on 1 March 2017.[42]On 9 March 2019, he applied for ILR. He declared his criminal convictions and gave evidence about his family life. The Secretary of State refused that application, and gave him 36 months’ DL. The Secretary of State explained why he did not qualify for ILR under the relevant provisions of the Rules, and why she considered that he did qualify for DL under the relevant policy. Mr Ellis applied for judicial review, arguing that he should have been given ILR, not DL. The Secretary of State wrote a supplementary decision letter dated 25 November 2019. It said that the Secretary of State was prepared to grant a further period of limited leave to remain because Mr Ellis’s circumstances had not changed since the last grant of DL.[43]Mr Ellis accepted that he did not satisfy the requirements of the Rules. The title of the relevant policy was misleading, because it applied in non-asylum cases, as its paragraph 1.1 made clear. The policy was intended to cover ‘exceptional and/or compassionate circumstances’ and to be used ‘sparingly’. The policy referred to the effect of section 55 of the Borders Citizenship and Immigration Act 2009 (‘the 2009 Act’). 30 months’ leave to remain would ‘generally be appropriate’ but it could be given for longer or shorter periods, ‘including, in particularly compelling circumstances’, ILR.[44]Transitional provisions applied to those who were given DL before 9 July 2012. They would ‘normally’ be dealt with under the DL policy in force before July 2012 ‘through to settlement’ if they continued to qualify for DL on the same basis as the original grant of DL. ‘Normally’ they would be eligible to apply for settlement after 6 years’ continuous DL (unless, at the date of the decision, they were within the restricted leave policy). Caseworkers had to consider whether the circumstances at the original grant of leave still applied at the date of the decision. If so and if the applicant was not within the restricted leave policy and the ‘criminality thresholds’ did not apply, a further period of three years’ DL should ‘normally’ be given. Caseworkers were ‘to consider whether there [were] any circumstances that [might] warrant a departure from the standard period of leave’.[45]Mr Ellis submitted that the decision did not explain why he had not been given ILR under the DL policy, which was the normal position for a person who had been granted six successive years of DL. The supplemental decision letter should not be admitted because it was an attempt to bolster the Secretary of State’s original reasons. If it was admitted, the reasons it gave were inadequate. The Secretary of State submitted that the obvious reason why Mr Ellis had not been given ILR, but 30 months’ DL, was his criminal history.[46]The sole ground of challenge was that the decision to grant three years’ DL rather than ILR was unlawful because under the DL policy, someone in the position of Mr Ellis would ‘normally’ be given ILR (paragraph 26). Chamberlain J rejected the submission that the construction of the Secretary of State’s policy was for the Secretary of State to decide, subject to Wednesbury (paragraphs 29-36).[47]In paragraphs 39-42 he considered how paragraph 10.1 of the policy should be interpreted. He made three initial points.[48]First, the Secretary of State accepted that because she had decided that Mr Ellis continued to qualify for leave to remain and was not within the restricted leave policy, she had to apply the pre-9 July 2012 policy (paragraph 39). Second, that policy was that those who had been given six years’ continuous leave would ‘normally’ be eligible for ILR. A ‘reasonable and literate’ reader ‘would understand that – at least in a “normal case” – an individual who has already been granted 3 years’ DL will be granted a further 3 years’ DL on the second application and ILR on the third’. Third, caseworkers should consider whether the circumstances warranted a ‘departure from the norm’. The policy did not say what those circumstances might be, but ‘a criminal conviction since the last occasion when the matter was considered, could, in principle, plainly do so’ (paragraph 41).[49]It followed that the DL policy did not say that ‘once it is decided that an individual qualifies for further leave on the same basis as before, he must automatically be granted ILR after 6 years’ continuous DL unless at the date of the decision he falls within the restricted leave policy. The word “normally” is used advisedly, so as to maintain the maximum possible discretion. Consistently with the usual position in administrative law, where a policy governs what is to happen in the normal case, it remains open to the decision-maker to take a different course in a particular case, provided that he or she takes account of the policy and has reason for considering the case to be abnormal’ (paragraph 42).[50]The first decision was unlawful because it did not show that the DL policy had been considered at all and, in any event, because it gave no reason for departing from the ‘normal position’. For the reasons he gave in paragraphs 46-52, Chamberlain J decided that the second decision was not admissible to explain the first decision. It was a fresh decision. It gave a reason for granting DL and for not granting ILR. That reason was not only the 12-month sentence ‘imposed in 2010 which was known about before the first grant of DL in 2011, but also the 4-month sentence …imposed in February 2017, which was a new development since Mr Ellis’s last application’. There was no doubt that the DL Policy had been ‘properly’ applied and ‘did supply a reason that was logically capable of constituting a basis for treating this case as abnormal for the purposes of § 10.1 of the DL Policy’. He referred, in that context, to paragraph 322(1C)(iii) of the Rules for the significance of criminality resulting in a sentence of less than four months’ imprisonment.[51]He made some observations (obiter) about section 55 of the 2009 Act in paragraph 54. The point was not a ground for which permission to apply for judicial review had been given. In any event, it was hard to see how a grant of DL to Mr Ellis would affect his children, who were British citizens. The second decision gave ‘a legally adequate reason for concluding that Mr Ellis’s case should not be treated as a “normal one”: namely his criminality’ (paragraph 55).
Decision 4
[52]The Secretary of State had not considered Mr Jimoh’s application personally. It had been considered ‘by an official acting on their behalf’. Mr Jimoh did not ‘qualify’ for [ILR]. The reasons for that were in the attached letter. The decision-maker was satisfied that Mr Jimoh ‘would fall to be granted limited leave to remain for 36 months under the [DL] route, were you to make a valid application for such leave’. The letter explained why.[53]The reasons described Mr Jimoh’s immigration history. His application for ‘Registration of Minors’ had been refused on 29 May 2003 because his parent was not a British citizen. The reasons explained, first, why Mr Jimoh’s application for ILR had been refused under the relevant provisions of the Rules. His application was refused under Part 9 because of his conviction in 2006. There is no challenge to that aspect of Decision 4.[54]The decision-maker then considered ILR outside the Rules. His application was also refused outside the Rules. The decision-maker acknowledged that his last criminal conviction had been 19 years previously and that he had not re-offended since then. The offence nevertheless ‘involved the supply of a Class A drug, specifically crack cocaine. This is a serious offence that contributes to a widespread and deeply harmful problem in society. The severity of the 30-month custodial sentence imposed reflects the gravity of the offence. In this context, the nature of the criminality outweighs any positive factors such as length of residence, family ties or private life. Accordingly, it is not considered appropriate to grant ILR outside’ the Rules. There is no challenge to that aspect of decision 4.[55]The decision-maker then considered Mr Jimoh’s application under Policy 3. Mr Jimoh had been given DL before July 2012, so his application had been considered under section 4 of Policy 3. The decision-maker quoted paragraphs 1 and 3 of section 4 of Policy 3, but not paragraph 2, or paragraph 4. The decision-maker then referred to Ellis. A decision-maker should consider whether there were ‘circumstances which would warrant departure from the normal position, such as a criminal conviction. In the above DL Policy, the word “normal” was used advisedly and the SSHD can depart from the normal position if there is good reason. The decision in Ellis recognised that a subsequent criminal conviction could plainly be a good reason to depart from the normal position’.[56]The decision-maker then referred to three further passages from Policy 3. The first, in the introductory material, is the reference to Part 9 of the Rules (see paragraph 26, above). The decision-maker said that Part 9 had been applied in the paragraphs of decision 4 which considered, and rejected, the application for ILR under the Rules. The second passage is a passage in section 3, which says that a person who has had DL for a continuous period of 10 years and ‘who continues to qualify under the DL policy should be granted settlement unless there are any criminality or exclusion issues’ (see paragraph 35, above). The third passage is the passage in section 4 which says ‘Where an individual has accrued ten years’ lawful residence under the DL policy and applies for settlement, you must consider Part 9 of [the Rules]’ (see paragraph 37.4, above).[57]The decision-maker had taken into account ‘The nature and seriousness’ of Mr Jimoh’s past criminal offending, and acknowledged that he had not committed any more offences. That was ‘a relevant factor in assessing whether the criminality constitutes a “good reason” to depart from the normal policy position’. Those ‘aspects’ and the decision in Ellis had been weighed carefully. The decision-maker referred to his/her reasoning under the general grounds of refusal. The nature of Mr Jimoh’s criminal conviction was ‘considered sufficiently serious that it remains a good reason to depart from the normal position of granting ILR under the DL policy’. The conviction and length of sentence would result in mandatory refusal under the Part 9 of the Rules. ‘The length of your sentence reflects the seriousness of the offence and is a relevant consideration in deciding that there is good reason to depart from the normal position’.[58]The decision-maker had also considered the best interests of Mr Jimoh’s child. The ‘overall assessment concludes that the public interest in maintaining immigration control and the seriousness of the past offending outweigh the factors in favour of granting settlement.’ The conclusion, in the light of ‘the guidance above and the consideration of General Grounds for Refusal’ was that the decision-maker was not ‘satisfied that [Mr Jimoh] merit[ed] a grant of ILR on the basis of [his] residence under the [DL] policy’.[59]The decision-maker then considered Policy 4. (v.8.0), quoting, ‘in particular’, a passage on page 37 of Policy 4 which discussed ‘the possibility of granting settlement’ in certain circumstances. The decision-maker had reviewed the ‘relevant passages’. ‘However, as these provisions expressly refer back to the DL policy, the assessment of eligibility for settlement remains governed by the criteria and principles…in the DL policy. Accordingly, [Policy 4] has been taken into account but does not alter the conclusion reached under the DL policy. As set out in the terms of [Policy 4], above, and the DL Policy, your criminal conviction is considered a compelling reason not to grant ILR.’
The judgment
[60]The Judge recorded that there were two grounds of claim. First, the Secretary of State had misunderstood and misapplied Policy 3 and Policy 4. Properly construed, they obliged her to grant ILR unless there was ‘some lawful basis to depart from them’ and none had been given. Second, her decision that there were ‘compelling reasons’ to refuse ILR was Wednesbury unreasonable.[61]The Judge’s reasoning is in paragraphs 39-60 of the judgment. She considered the grounds in turn. She divided her reasoning on ground 1 into two sections, headed ‘Interpretative Framework’ and ‘Application to the facts’. In the first section she referred to paragraph 35 of Ellis. Applicants should be able to rely on Policy 1 when they decided whether or not to pay the fee for an application for ILR. She compared Ellis with a second, unreported decision of the UT, R (TT) v Secretary of State for the Home Department (JR-2025-LON-000110).[62]In Ellis, Chamberlain J had considered an earlier version of Policy 3. The relevant parts of that version and of the version at issue were ‘materially identical’. Ellis was not binding, but was persuasive. The parties agreed that his approach to the interpretation of Policy 3 was correct. Applicants granted DL before July 2012 would ‘normally continue to be dealt with under that policy’. Those who have been given six years’ continuous leave will ‘normally’ be eligible for ILR. Caseworkers might depart from the ‘norm’ only where there are circumstances warranting such a departure. The Judge noted that a criminal conviction since the matter was last considered was given as a ‘paradigm example’. She added, ‘The word “normally” was used advisedly; it preserves discretion, but that discretion must be exercised consistently with the policy’s purpose, and departure may be justified by new developments’ (paragraph 40).[63]The Judge recorded that both sides relied on Ellis. The claimant in that case had had two convictions. He had been sentenced to four months’ imprisonment in March 2017 and to 12 months’ imprisonment in March 2020. ‘2020’ must be a typing error: see paragraph 40, above. The Judge noted that the first conviction ‘pre-dated’ his original grant of DL in 2011. The second conviction post-dated the grant of DL in 2016.[64]The Judge said that in paragraph 53 of his judgment, Chamberlain J had explained why ‘these circumstances provided a lawful basis to depart from the “normal position” that the pre-July 2012 policy would be followed through to settlement’ (paragraph 41). She then quoted paragraph 53 of his judgment. In paragraph 42 she said that Chamberlain J had ‘distinguished’ the 2010 offence, which was known about before the first grant of DL. His focus was the ‘new development’: that is, the 2017 offence.[65]She said that the starting point was Policy 1 ‘and its transitional arrangements’. Policy 1 had a ten-year route for cases covered by the exclusion criteria and the ‘normal’ six-year route. Policy 1 ‘contemplated ministerial denial of settlement even after ten years’. Those provisions were ‘self-contained’. Decision 4 relied on the same ‘historic conviction’ which had pre-dated all the grants of DL as a reason to depart from the normal position. That conviction had never been relied on as disqualifying Mr Jimoh from DL. That showed that the Secretary of State did not treat the conviction as disqualifying Mr Jimoh from ‘the six-year pathway’. He was told in 2010 and 2013 that he was ‘on that route to settlement’. To treat the old conviction as a ‘compelling reason’ to refuse ILR ‘undermines the settled expectation created by the transitional policy and is inconsistent with its purpose’. A lawful departure from the norm ‘requires something new’. The word normally ‘preserves discretion only where circumstances arise that justify departure, such as a subsequent conviction or other new adverse factor’. Decision 4 conflated a ‘rule based mandatory refusal scheme with a policy based discretionary pathway expressly designed to carry those with pre-2012 DL through to settlement absent new adverse developments’. That was reinforced by Policy 4 (paragraph 50).[66]The Judge considered Policy 4 in paragraphs 51-54. Her main reasons for upholding the claim were that ‘reliance on a historic conviction already considered at each previous DL grant as a compelling reason to refuse settlement is inconsistent with the purpose of both policies’. Policy 4 ‘anticipates that medical claims may involve some adverse history, yet presumes settlement in the absence of new or particularly serious concerns’. The Secretary of State’s analysis ‘…simply re-labels a historic fact as compelling. That is a misapplication of [Policy 4] in tandem with the DL transitional scheme’ (paragraph 52). In paragraph 53 she rejected a submission that because Policy 4 referred to Policy 3, it added nothing. The effect of Policy 4, together with Policy 3, was ‘to strengthen the expectation that medically vulnerable applicants will be granted settlement once they meet the qualifying period…Taken together, the two policies create a strong presumption that individuals with serious medical conditions who have complied with the rules will enjoy continuity and stability in their immigration status’ (paragraph 54).
The grounds of appeal
[67]There are two grounds of appeal. 1. The Judge misinterpreted the two policies when she concluded that an historic offence could not be a reason for departing from the ‘normal’ position of granting ILR under the transitional DL policy and or a ‘compelling reason’ for not granting ILR under the Medical Leave Policy. 2. The Judge erred in ordering the Secretary of State to grant ILR outside the Rules rather than quashing the Decision and ordering the Secretary of State to reconsider it.[68]The Secretary of State did not and does not challenge the Judge’s conclusion on the effect of section 55 of the 2009 Act. Discussion General observations about policies
Discussion
[69]It is now common ground that the correct construction of the Secretary of State’s relevant policies is an objective question of law for this court. There are two broad points which are relevant to the construction of policies.[70]The first broad point is that they are not legislation. This has three relevant consequences. First, they are not always drafted by lawyers. Second, it follows that they are not drafted as precisely as legislation. Third, policies are not amended in the same way as legislation. Policies which have been changed from time to time, or which incorporate other policies by reference, may develop apparent anomalies and internal inconsistencies. It follows that the court may have to do its best to make overall sense of a policy, by trying to read the relevant parts of the policy as a whole in order to work out its overall intention on the point at issue.[71]The second broad point is that policies such as the policies at issue in this appeal are public statements about the way in which the Secretary of State intends to exercise a wide discretion conferred by primary legislation. Those affected by any policy have an expectation that, other things being equal, the policy will be followed on the facts of their case. It is nevertheless trite that it is unlawful for the Secretary of State to fetter the exercise of a wide discretion, and it follows that, whether or not this is expressly stated in every sentence of the relevant policy, the Secretary of State may depart from a policy as long as she has taken the policy into account, and has explained why, on the facts of the case, she has a good reason for departing from it.
The issues
[72]The first issue is the effect of the relevant policies. It is convenient to consider four questions. 1. What was Mr Jimoh’s expectation under Policy 1? 2. How does Policy 3 differ from Policy 1 in cases to which the transitional arrangements do not apply? 3. What is the effect of the transitional arrangements of Policy 3 in Mr Jimoh’s case? 4. What is the effect of the medical policy in Mr Jimoh’s case?[73]There are three further issues. 1. Did the Secretary of State apply the transitional arrangements in decision 4? 2. Did the Secretary of State apply Policy 4 in decision 4? 3. Was the Judge wrong to make a mandatory order in this case? What is the effect of the relevant policies? Policy 1
What is the effect of the relevant policies?
[74]I start with Policy 1 for two reasons. First, it is the earlier of the two relevant policies. Second, the transitional arrangements in Policy 3 expressly provide, in paragraph 1 (see paragraph 37, above) that ‘Those granted leave under [Policy 1] will normally continue to be dealt with under [Policy 1] through to settlement if they continue to qualify for further leave on the same basis as their original DL was granted…’[75]The general rule, or norm, in Policy 1 was that a person would not ‘become eligible for settlement until they had had six years’ DL. That was subject to a proviso, that if the applicant was in an exclusion category, ‘This period will be longer, at least ten years, and potentially never, for those in the excluded category (see sections below on ‘Exclusion from HP/DL’)’.[76]There is no doubt that Mr Jimoh was in an exclusion category. Policy 1 incorporated Policy 2 by reference. Mr Jimoh was not a candidate for HP, and Policy 2 did not in terms apply to him. The effect of the relevant part of Policy 1, however, was that the grounds for exclusion from HP were applied to people to whom Policy 1 applied. Mr Jimoh had been convicted by a criminal court and had been given a sentence of 30 months’ imprisonment. There were, indeed, ‘serious reasons for considering that’ he had committed a ‘serious crime’. He was therefore in an exclusion category.[77]The statement I have quoted in the last paragraph but one is not, however, the only relevant statement in Policy 1. Policy 1 must be read as a whole. That apparently general rule is explained by the section headed ‘Personal Decision by Ministers’. A person in an exclusion category who completed ten years of DL would be denied settlement under Policy 1 if Ministers so decided, personally, in a decision for which reasons were given. There is no suggestion that any such decision was ever made in Mr Jimoh’s case, as Mr Mackenzie and Mr Furner rightly submitted.[78]Mr Jimoh’s expectation under Policy 1, therefore, was that, despite his criminal conviction, if he had completed ten years of DL, he would be given ILR unless there had been a personal decision by Ministers for which reasons had been given. Neither the Judge nor this court has been referred to any such decision.
The differences between Policy 1 and Policy 3
[79]There are three main differences between Policy 1 and Policy 3 in a case to which the transitional arrangements do not apply. The first is that the general rule, or norm, is now that a person will not be ‘eligible to apply’ for ILR until he has had ten years of continuous limited leave. He should then be granted ILR ‘unless there are any criminality or exclusion issues’. The second is that a sentence of 12 months’ imprisonment or more is now a mandatory ground for refusing DL, unless (among other things) the applicant has been given DL before, that conviction and sentence were known to the Secretary of State when the Secretary of State made that earlier grant of DL, and the applicant has no further convictions since the grant of DL. The third is that applications for ILR are also to be considered under the Rules, and other than in exceptional circumstances, are to be refused if the applicant has a conviction which has led to a sentence of 12 months’ imprisonment or more.
The effect of the transitional arrangements
[80]The interpretation of the transitional arrangements is not straightforward. Decision-makers are told that they ‘must apply’ the guidance in paragraphs 1 to 4. The starting point is that paragraphs 1-4 are in a sequence. The logic of the sequence, it seems to me, is that the decision-maker should go through the sequence, to see which of the paragraphs best fits the applicant’s case, and to apply that paragraph to his case (and no other/s). Any other approach would be chaotic.[81]Paragraph 1 announces a general protection that those given DL under Policy 1 will ‘normally continue to be dealt with under that policy through to settlement’. That description is followed by a further statement (‘normally they will be eligible to apply for settlement after accruing 6 years’ continuous DL...’). That is not a complete statement of the effect of Policy 1 as regards settlement, however, because it leaves out the position of those in the exclusion category (see paragraph 77, above). Those applicants are an exception to the norm because, under Policy 1, they would only have qualified for settlement after ten years of DL, absent a ministerial decision in their case or class of cases. The first question is whether the further explanation in paragraph 1 limits the transitional protection conferred by the first part of paragraph 1 or merely illustrates it. The evident purpose of the transitional arrangements is to shield those granted DL before 9 July 2012 from the effect of later disadvantageous changes. I therefore consider that the second part of paragraph 1 is not restrictive, but illustrative. The effect of paragraph 1, therefore, is that if a person granted DL under Policy 1 would, if now considered under Policy 1, have been entitled to ILR, he is still entitled to it. Paragraph 1, interpreted in this way, is a good fit for Mr Jimoh’s case.[82]I do not consider that paragraph 2 is directly relevant to the issues in this case, as it concerns further applications for DL. Mr Jimoh did not apply for DL, but for ILR. But if paragraph 2 is relevant, I consider that he would be entitled to a further grant of DL, even under Policy 3 (see the text under the heading ‘Considering further DL’ on page 26 of Policy 3 (see paragraph 32, above). That appears also to have been the view of the Secretary of State, as, in decision 4, she gave Mr Jimoh a further grant of DL. She said that he had previously been given DL and that his ‘circumstances have not materially changed’ since that last grant of DL.[83]Paragraph 3 is also somewhat difficult to interpret, at first sight. What is the effect of the ‘or’? The first part of paragraph 3 signals that paragraph 3 applies to ‘significant changes’. In that context, it must mean ‘significant changes’ since the last grant of DL. I therefore consider that the reference to falling for refusal on grounds or criminality is a reference to a criminal sentence which has been imposed since the last grant of DL, and is not a reference to a criminal sentence which has been known about all along. That view is supported by the approach taken in section 2 of Policy 3 to those who have been given DL in the past in the knowledge of an earlier sentence of 12 months or more (see paragraph 32, above). If the second part of paragraph 3 applies to any criminal sentence, including a sentence imposed before an earlier grant of DL, and taken into account when that earlier grant was made, the transitional arrangements have a harsher effect than the rest of Policy 3, which is not a rational interpretation of arrangements which are intended to preserve expectations under Policy 1. Paragraph 3, interpreted as I have interpreted it, is, therefore, not a good fit for Mr Jimoh’s case.[84]The rule announced in the first sentence of paragraph 4 expressly applies to those granted DL for six months ‘because of the refusal or withdrawal of asylum or [HP] on grounds of criminality’. It does not apply to Mr Jimoh because he has not applied for, or been given, asylum or HP, or had either type of status withdrawn. Nor, presumably for that reason, has he ever been given six months’ DL. The question is whether, in the light of that, the second sentence of paragraph 4 nevertheless applies to him. On a literal (but nevertheless informed) reading, the second sentence of paragraph 4 could apply to all those who have received a sentence of more than 12 months’ imprisonment, because, under Policy 1, everyone who had been given such a sentence had to wait ten years before applying for settlement.[85]There are therefore two alternatives. The first is that it does not, because the context for the second sentence is set by the first sentence, which does not apply to Mr Jimoh. The second is that it does, because the second sentence is a self-contained rule which applies not just to the cases described in the first sentence, but to all cases in which a person has accrued ten years’ lawful residence and applies for settlement. I do not consider that the second is the right interpretation of paragraph 4, for two reasons. The first reason is that I consider that the first sentence sets the scene for the second, and that, if as I consider it does not, the first sentence does not apply to Mr Jimoh, nor does the second. The second reason is that, for the reasons I have already given, paragraph 1, as I have interpreted it, is a better fit for Mr Jimoh’s case.[86]In case I am wrong about that, I should consider the effect of the second sentence of paragraph 4 on his case. A decision-maker is told to ‘consider’ (but not to ‘apply’) Part 9 of the Rules. This is somewhat difficult to understand. Part 9 of the Rules sets out mandatory grounds for refusing an application for leave to remain, which include a sentence of more than 12 months’ imprisonment. The ‘confirmation’ by the Secretary of State which is recorded in paragraph 15 of the judgment (see paragraph 12, above) seems to me to reflect the Secretary of State’s understanding, which I consider to be correct, that (if the second sentence of paragraph 4 does apply to Mr Jimoh’s case), its effect is that she was not obliged by Part 9 of the Rules automatically to refuse Mr Jimoh’s application for ILR, but had to consider the facts of his case. That implies that there might be facts which would entitle the Secretary of State not to apply Part 9 to his application. That indeed, is the effect of the paragraph on page 27 of Policy 3 headed ‘Considering settlement’ and of the paragraph on page 28 headed ‘Granting settlement’. The second of those expressly refers to section 1 of Policy 3 (see paragraphs 27-28, above). If those parts of Policy 3 do not result in an automatic refusal of ILR for a person to whom Part 9 of the Rules apply, it would be curious if the transitional arrangements have a harsher effect.[87]For those reasons, I consider that, on its proper interpretation, and in the light of the evidently protective purpose of transitional arrangements, paragraph 1 is an inclusive provision. It signals that if the applicant was on a path to settlement under Policy 1, he would get ILR after the relevant period of DL: six, or ten, years, as the case might be. The relevant period in Mr Jimoh’s case, because he had committed a serious crime, but had not been excluded from settlement by a ministerial decision, was ten years. Had he not received a sentence of 30 months’ imprisonment, that period would have been six years.
The effect of the medical policy
[88]In the light of that conclusion, it is not necessary for me to consider Policy 4 separately. Policy 4 incorporates the effect of Policy 3. Its application to Mr Jimoh’s case supports the conclusion that he was entitled to ILR. In the circumstances, I prefer to express no view about whether Policy 4 goes further than Policy 3. The clear premise of Policy 4 is that those granted leave on medical grounds will be so ill that any period of leave is intrinsically unlikely to last for years. It is therefore unlikely that if the high threshold has been correctly applied to a case, the issue of ILR will arise. Did the Secretary of State in decision 4 correctly apply paragraphs 1-4 of the transitional arrangements?[89]The Secretary of State quoted paragraphs 1 and 3 of the transitional arrangements together on pages 6-7 of decision 4, and, separately, part of paragraph 4 on page 7. The Secretary of State interpreted paragraph 1 of the transitional arrangements, read with Ellis, to mean that she had a wide discretion to take into account a criminal conviction as a ‘good reason’ for departing from the ‘normal’ position described in paragraph 1. For the reasons I have given above, the Secretary of State did not correctly understand the relationship between Policy 1 and Policy 3. As a result, decision 4 was wrong in law.
Did the Secretary of State apply the medical policy in decision 4?
[90]It is unnecessary for me to consider this question separately; but for reasons similar to those in paragraph 88, above, and in the previous paragraph, she did not, because she misunderstood the effect of Policy 3. Conclusion[91]I would therefore dismiss the appeal on ground 1.
Was the Judge wrong to make a ‘mandatory’ order in this case?
[92]In paragraph 61, the Judge said that, properly interpreted, Policy 3 mandated a grant of ILR, unless there was ‘a new lawful basis to depart from the norm’ (paragraph 61). She added that D’s best interests were a material factor, and that the Secretary of State’s ‘failure properly to integrate section 55’ into the assessment of Mr Jimoh’s individual circumstances ‘compounds the misapplication of the policy’ (paragraph 62).[93]She added, in paragraph 64, that ‘the only lawful course is to grant ILR; remittal would serve no legitimate purpose and would cause further delay’. She referred to section 31 of the Senior Courts Act 1981 (‘the 1981 Act’) and said that ‘where the policy framework leaves no lawful basis for refusal, and the outcome is inevitable, substitution rather than remittal is appropriate’.[94]Paragraph 2 of her order dated 26 November 2025 (‘order 1’) quashed decision 4. Paragraph 3 was a declaration that on the material then before the Secretary of State, ‘the only lawful decision is a decision to grant ILR’. Paragraph 4 required the Secretary of State to ‘issue and implement her decision within 21 days’. The Judge made a further order on 9 December 2025 (‘order 2’). Order 2, records, among other things:
‘For the avoidance of doubt, the timetable for compliance with the mandatory order requiring the grant of ILR remains unchanged’
. That shows that the Judge understood that order 1 was a mandatory order. She was right to think that.[95]Before the hearing the court drew the parties’ attention to R (LND1) v Secretary of State for the Home Department [2024] EWCA Civ 278; [2024] 1 WLR 4433. That appeal concerned a decision to refuse leave to remain under the Afghan Relocations and Assistance Policy (‘ARAP’). The Secretary of State for Defence appealed an order made by Swift J that, if the correct approach was applied, there was only one rational decision open to the Secretary of State. This court disagreed with Swift J’s interpretation of ARAP, but also said, in any event, even if Swift J was right that the only rational conclusion was that the claimant met the relevant criteria, he had been wrong not to remit the application to the Secretary of State (see paragraphs 60, and 61). If a claimant successfully challenges a decision, the remedy is a quashing order and an order remitting the matter to the original decision-maker.[96]Mr Anderson made two points in support of ground 2. The first was to draw our attention to the decision of the Supreme Court in R (Imam) v Croydon London Borough Council [2003] UKSC 45; [2025] AC 335. Imam was a homelessness case in which this court granted a mandatory injunction requiring a local housing authority to discharge an unqualified statutory duty. The Supreme Court dismissed the authority’s appeal. Mr Anderson relied on paragraph 44 of the judgment in support of a submission that Parliament has given the power to administer immigration control to the Secretary of State and not to the courts. While the interpretation of a policy is for the court, it is the Secretary of State’s constitutional role to make decisions under the policy, which governs the exercise of her wide power to grant LOTR. The second was to refer to section 31(5) and section 31(5A) of the 1981 Act. The effect of those provisions is that the court can only substitute its view of the right outcome for that of the decision-maker if there is only one decision which could lawfully be made, and the decision-maker is a court or tribunal. The effect of paragraph 3 order 1 (coupled, I would add, with the short period for compliance) was that the court had substituted its view for that of the Secretary of State.[97]Mr Mackenzie submitted that the Judge had been entitled to make order 1. Further, section 31(5A) of the 1981 Act does not affect the court’s power to grant a mandatory injunction.[98]I prefer Mr Anderson’s submissions. This is not a case in which the court held that the Secretary of State had breached an unqualified statutory duty. It is not, therefore, like Imam, in which a mandatory order requiring the authority to comply with its statutory duty was the appropriate remedy. This case concerns the exercise of a statutory power, not a duty, and that exercise is subject to the Secretary of State’s published policies. As I have already said, the Secretary of State retains a residual discretion, even when her policy appears to give the answer in the general run of cases. Neither the statutory power, nor the residual discretion is the court’s to exercise. The Judge was right to quash decision 4, but the case must be remitted to the Secretary of State for her to reconsider it in the light of this judgment.
Conclusion
[99]I would therefore allow the appeal on ground 2.[100]I agree.[101]I also agree.