Olamide Jimoh v Secretary of State for the Home Department [2025] EWHC 3129 (Admin)

[2025] EWHC 3129 (Admin)Case No AC-2024-LON-002550
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27 November 2025
Before
MS JUSTICE OBI DBE
Between
Olamide JimohClaimantSecretary of State for the Home DepartmentDefendant
Daniel Furner (instructed by Birnberg Peirce) for ClaimantRachel Sullivan (instructed by Government Legal Department) for DefendantHearing Hearing dates: 5 November 2025
JUDGMENT
[1]This is an application for judicial review. The Claimant challenges the decision made by the Defendant on 23 September 2025 refusing to grant him Indefinite Leave to Remain (ILR).[2]The background circumstances can be summarised as follows. Background Personal and Medical History

Background

[3]The Claimant is a Nigerian national. He was born on 20 April 1985 and entered the UK in 1989 (or 1990 according to the Defendant’s systems), at the age of five to join his father -together with his mother and siblings.[4]In 1998, the Claimant was diagnosed with hepatitis B, which progressed to cirrhosis of the liver and diabetes. He requires lifelong treatment. On 17 February 2001, he was granted ILR. The Claimant’s condition continued to deteriorate over time, to the point that it became necessary for one of his kidneys to be removed.

Criminal and Immigration History

[5]In 2004, the Claimant was fined for possession of an offensive weapon. On 28 April 2005, he pleaded guilty to possession of Class A drugs with intent to supply and on 23 June 2006 he was sentenced to 30 months’ imprisonment. He was released on Home Detention Curfew on 4 December 2006.[6]On 12 May 2008, the Claimant was detained under immigration powers and served with notice of intention to deport. His appeal was dismissed on 8 September 2008, and a deportation order was signed on 1 December 2008, which invalidated his ILR. On 4 June 2009, the Claimant applied to revoke the deportation order. His appeal was allowed on Article 8 grounds on 11 May 2010; while the availability of medical treatment in Nigeria was not determinative it was highly relevant given his status as a settled migrant. Following that decision, the Claimant was granted Discretionary Leave (DL) for three years on 14 October 2010.[7]Following policy changes in July 2012, transitional provisions ensured that individuals who were first granted leave under the pre-2012 DL policy would continue to be considered under that policy through to settlement. The Claimant was subsequently granted further periods of leave on 10 December 2013, 2 October 2017, and 26 May 2021. On 21 May 2024, the Claimant was granted DL to remain until 15 May 2027.

Current Family Circumstances

[8]In 2021, the Claimant formed a relationship with a Nigerian national (‘P’) who was in the UK without leave. P became pregnant. During the pregnancy, the relationship broke down and there has not been any reconciliation.[9]On 27 October 2022, the Claimant’s daughter (‘D’) was born. As neither parent held settled status at the time of her birth, D holds no status either. If either parent obtains ILR during her minority, D will be entitled to register as a British citizen under section 1(3) of the British Nationality Act 1981. D resides with her mother (“P”), but the Claimant maintains regular contact.

Procedural History and Previous Decisions

[10]On 3 October 2023, the Claimant applied for ILR under the pre-2012 DL policy. In support of the application the Claimant’s solicitor provided written submissions, dated 1 November 2023, and supporting documents. On 24 April 2024, the application was refused (“the first decision”). The decision acknowledged the Claimant’s eligibility for 3 years further limited leave but refused ILR citing his criminal history and the suitability requirements under paragraph 276B(iii) and Part 9 subsection 9.4.1(a) of the Immigration Rules. The first decision also considered the Leave Outside the Rules policy but concluded that no compelling reasons justified settlement. There was no mention of the pre-2012 DL policy (or the then current version 10.0 DL policy – (‘DL policy’)). A revised policy (version 11.0) was published on 30 May 2024 which remains in force but is not materially different from DL policy for present purposes.[11]Judicial review proceedings were initiated on 24 July 2024. The Claimant alleged that the Defendant had not considered: i. the pre-2012 DL policy, ii. the Medical Claims policy (version 8.0, 19 October 2020), and iii. the best interests of D (particularly the barrier to her registration as a British citizen).[12]On 13 September 2024, summary grounds of defence were filed, defending the claim in its entirety. On 1 November 2024, permission on all grounds was granted by Sweeting J.[13]Following negotiations, the parties agreed a short stay during which the Defendant would reconsider her decision. On 22 February 2025, the Defendant made a new decision (“the second decision”) which was identical to the first decision, save for reference to the DL policy. The second decision did not mention the Medical Claims policy, and the section dealing with the best interests of D was identical to the first decision.[14]On 7 March 2025, the Claimant filed amended grounds of claim. On 20 March 2025, the Defendant refused P’s application for leave to remain in the UK, which was made on the basis of her parental relationship with D. On 2 May 2025, the Defendant filed replacement detailed grounds of defence.[15]The matter was listed for hearing on 24 June 2025 before Dias J. However, on 19 June 2025, the Defendant offered to withdraw her decision and undertake further consideration. At the hearing on 24 June 2025, the matter was adjourned and relisted, following confirmation from the Defendant that: “…(a) the Claimant’s application falls to be considered 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 the Claimant’s application without consideration of the individual circumstances of his case;”.[16]Directions were issued requiring the Defendant to provide further disclosure, to issue a reconsidered decision (“the third decision”) and for the parties to exchange amended skeleton arguments. The third decision was issued on 23 September 2025.

The Decision Under Challenge

[17]The third decision refers to the transitional arrangements under the DL policy and insofar as it is relevant to these proceedings states as follows:
“In line with the decision in Ellis…the Hon Chamberlain J determined that caseworkers should take into consideration if 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 [emphasis added].”
[18]The decision proceeds to reference provisions within the DL policy concerning general refusal grounds and the criminality and exclusion guidance for cases arising after July 2012, before returning to the transitional provisions and stating as follows. “Page 31 also states:
“Where an individual has accrued 10 years’ lawful residence under the DL policy and applies for settlement, you must consider Part 9 of the Immigration Rules.”
The nature and seriousness of your past criminal offending have been taken into account. It is acknowledged that there has been no further offending since the original conviction, which is a relevant factor in assessing whether the criminality constitutes a ‘good reason’ to depart from the normal policy position. These aspects, including the decision in Ellis have been weighed carefully. As we have considered under the General Grounds for Refusal [in respect of the refusal of leave under paragraph 276B of the Immigration Rules, which C never actually applied for and never challenged the refusal of], the nature of your criminal conviction – supplying a controlled class A drug is considered sufficiently serious that it remains a good reason to depart from the normal position of granting ILR under the DL policy. Your criminal conviction and 30-month prison sentence would result in mandatory refusal under part 9 of the immigration 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. Your submission that ILR should be granted in light of your child’s best interests has also been considered in this context. However, 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.”

Grounds of Claim

[19]The Claimant advances the following grounds of challenge:• Ground 1: Misapplication of Policy/Irrelevant Considerations The Defendant misunderstood and misapplied her relevant published policies. Properly construed, those policies mandated a grant of ILR unless there was some lawful basis to depart from them. No such justification was provided.• Ground 2: Irrationality Alternatively, the Defendant’sconclusion that compelling reasons exist to refuse ILR is Wednesbury unreasonable. Legal Framework Relevant Statutory Provisions and Immigration Rules

Legal Framework

[20]The grant of leave to remain is governed by section 3 of the Immigration Act 1971 (“the 1971 Act”). It confers on the Defendant a discretionary power to grant leave, whether limited or indefinite, subject to the provisions of the 1971 Act.[21]By section 3(2), the Defendant must lay before Parliament a statement of the rules (‘the Immigration Rules’) laid down by her as to the practice to be followed in the administration of the 1971 Act. Part 9 of the Immigration Rules sets out the “General Grounds for Refusal”. Para 9.4.1, which came into effect in October 2020 (and has subsequently been replaced by a comparable provision on 11 November 2025), stated:
“9.4.1. An application for entry clearance, permission to enter or permission to stay must be refused where the applicant: (a) has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of 12 months or more… [emphasis added].”

Discretionary Leave Policy

[22]It is well-established that the Defendant enjoys a very wide power to grant leave to enter or remain, for a limited or indefinite period, and is not constrained in so doing by the terms of the Immigration Rules (or any other secondary legislation) (see [44] of Lord Dyson’s judgment in R (Munir & Anor) v SSHD [2012] UKSC 32). The discretion is set out in the DL policy (applicable at the date of the first decision).[23]The DL policy under the heading ‘Transitional Provisions’ sets out the following guidance: “Those granted leave under the DL policy in force before 9 July 2012 will normallycontinue to be dealt with under that policy 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... 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 departure from the standard period of leave. 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. Those granted DL for 6 months because of the refusal or withdrawal of asylum or humanitarian protection on grounds of criminality and who do not fall within the restrictive 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 Immigration Rules [emphasis added]”.[24]In addition, the DL policy requires that Part 9 be consulted and applied before any grant of DL and that decision-makers consider the impact of an applicant’s criminal history in all asylum and non-asylum cases prior to granting leave. The DL policy also states that:
“[s]ettlement is a privilege and not an automatic right. This is a longstanding position. Being granted leave on a particular route gives no expectation of anything further other than leave for the period originally granted. Therefore, further DL can be granted where the above criteria applies. However, any [ILR] applications fall to be considered by reference to the Immigration 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 [General Grounds for Refusal] rules and policy.”
[25]The pre-July 2012 DL policy provided as follows:
“A person will normally become eligible for consideration for settlement after completing six continuous years of [DL]. However, where a person is covered by one of the exclusion categories they will not become eligible for consideration for settlement until they have completed ten continuous years of Discretionary Leave. Any time spent in prison in connection with a criminal conviction would not count towards the six or ten years. An individual may apply for ILR/settlement at the six or ten year stage shortly before [DL] expires. The application will be considered in the light of circumstances prevailing at that time [emphasis added]. Consideration of Application As with an extension request, the application should be subject to an active review to consider whether or not they still qualify for [DL] (or some other form of leave). Granting Settlement Where a person has held [DL] for an appropriate period and continues to qualify for [DL], they should be granted ILR/settlement [emphasis added].”
Further Grants of Settlement Leave There may be some cases where it is clear that the basis for the (continuing) grant of Discretionary Leave is temporary. If there is a clear basis for considering that within twelve months the factors giving rise to the grant of Discretionary Leave will have ceased to apply then settlement should not be granted [emphasis in the original]. Personal Decision by Ministers Where a person who is subject to the grounds of exclusion has completed ten years of Discretionary Leave 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 a case, or for a category of cases).” Consideration of Application Granting Settlement Further Grants of Settlement Leave

Personal Decision by Ministers

[26]In in R (Ellis) v SSHD (discretionary leave policy; supplementary reasons) [2020] Imm AR 812, Chamberlain J confirmed, in respect of the proper construction of the DL policy, that: “39. First, those (such as Mr Ellis) granted leave under the DL Policy in force before 9 July 2012 will ‘normally’ continue to be dealt with under that policy if they continue to qualify for further leave on the same basis, unless they fall within the restricted leave policy. Mr Ostrowski accepts that, because the Secretary of State decided that Mr Ellis continued to qualify for leave and did not fall within the restricted leave policy, he fell to be dealt with in accordance with the DL Policy applicable before 9 July 2012.”40. Second, the DL Policy applicable before 9 July 2012 was that those who had accrued 6 years’ continuous leave would ‘normally’ be eligible for ILR. The words used are ‘eligible to apply for ILR,’ but the context here includes the second paragraph quoted at [23] above. When those paragraphs are read together, 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.41. Third, caseworkers should consider whether there are circumstances that warrant a departure from the norm. The policy does not specify what might justify such a departure, but a criminal conviction since the last occasion when the matter was considered could, in principle, plainly do so [emphasis added].

Medical Leave Policy

[27]The Defendant’s policy on medical cases, titled “Medical Claims under Articles 3 and 8 of the European Convention on Human Rights (ECHR)” (version 8.0, 19 October 2020), provides guidance on eligibility for ILR and states that:
“[g]iven the high threshold and nature of cases granted leave on the basis of medical condition, it should only be in exceptional cases that a further period of limited leave is required, following the initial grant, and it should be extremely rare for an [sic] claimant to have accrued the relevant period of leave necessary to meet the requirements for a grant of ILR…” … If following a period of limited leave to remain, the claimant applies for settlement, the application must be considered in line with the Immigration Rules. Some people may be excluded from applying for settlement due to their: • character, conduct or associations or they are a threat to national security • criminal record • security issues 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 discretionary leave for consideration of ILR applications [emphasis added].”

Section 55 Duty

[28]Section 55 of the Borders, Immigration and Citizenship Act 2009 (‘the 2009 Act’) imposes a statutory obligation on the Defendant to ensure that immigration, asylum, and nationality functions are discharged having regard to the need to safeguard and promote the welfare of children in the UK. This duty applies to all decisions affecting a child, whether directly or indirectly, and requires decision-makers to treat the child’s best interests as a primary consideration, though not the sole consideration.

Submissions

[29]I summarise the parties’ submissions as follows.

On behalf of the Claimant

[30]Mr Furner submits that the Defendant’s decision, made on 23 September 2025, is unlawful for three principal reasons.[31]First, the Defendant misunderstood and misapplied her published policies, particularly the transitional provisions of the pre-2012 DL policy. That policy provides that individuals granted leave under the earlier regime “will normally continue to be dealt with under that policy through to settlement” if they continue to qualify on the same basis. The Claimant has accrued more than six years of continuous DL and continues to qualify on medical grounds. It is argued that the Defendant’s reliance on the Claimant’s 2006 conviction as a reason to depart from the normal position is unlawful. The conviction was known at the time of the first grant of DL and did not then disqualify him. There has been no further offending for nearly two decades. The Claimant relies on R (Ellis) v SSHD [2020] UKUT 82 (IAC), where Chamberlain J held that a criminal conviction since the last grant of leave may justify departure from the normal position. Ellis does not support the proposition that any historic conviction can justify departure.[32]Secondly, the Claimant’s case falls within the Medical Claims policy, which states that ILR should “generally” be granted after six years unless there is a compelling reason not to do so. The Defendant’s reliance on the same historic conviction as a compelling reason is said to be circular and irrational. If the conviction were compelling, the Claimant would not have been granted DL for three years.[33]Thirdly, Mr Furner submits that the Defendant failed to properly consider the best interests of D under section 55 of the 2009 Act. D cannot regularise her status unless the Claimant is granted ILR. The decision’s suggestion that alternative care arrangements could be made is speculative and irrelevant.[34]Finally, in the alternative, it is argued that the conclusion that the historic conviction outweighs all other factors is irrational given the passage of time since the offence, the Claimant’s medical vulnerability, his blameless conduct for nearly 20 years, and the strong interests of D.

On behalf of the Defendant

[35]Ms Sullivan submits that the impugned decision was lawful and fell within the range of reasonable responses open to the Defendant. She emphasised the conceptual difference between DL and ILR, submitting that settlement is a privilege rather than an entitlement. She argues that the Claimant’s disagreement with the outcome does not render the decision unlawful.[36]Ms Sullivan accepts that Part 9 of the Immigration Rules is not determinative of the Claimant’s case but contends that the transitional DL policy uses the term “normally” advisedly, preserving discretion to depart from the standard position where there is “good reason”. Serious criminal offending is a legitimate basis for departure. The Claimant’s conviction for supply of Class A drugs, attracting a 30-month sentence, is sufficiently serious to justify refusal of ILR. While Ellis involved a subsequent conviction, Ms Sullivan argues that it does not preclude reliance on earlier convictions. Ellis confirms that the policy is not prescriptive and that decision-makers retain maximum discretion to treat a case as abnormal where justified.[37]Ms Sullivan further submits that the Defendant considered the Medical Claims policy and concluded that the Claimant’s conviction amounted to a compelling reason not to grant ILR. The policy expressly refers back to the DL framework, which includes criminality as a relevant factor.[38]Finally, Ms Sullivan contends that D’s best interests were considered as a primary factor but did not outweigh the public interest in maintaining immigration control and the seriousness of the Claimant’s past offending. The decision noted that the Claimant would not be removed and could continue family life in the UK. Analysis and Reasons Ground 1: Misapplication of Policy/Irrelevant Considerations Interpretative Framework

Analysis and Reasons

[39]Before turning to the facts of this case, it is helpful to consider the approach to be taken in the interpretation of published policy. In Ellis at [35] Chamberlain J stated that:
“[t]he DL Policy is intended to promote consistency in the treatment of a very large number of applications. …Whatever the purpose of the Secretary of State in publishing it, members of the public are entitled to, and do, rely on it in deciding whether to spend considerable sums of money in making applications for leave to remain. It would be inimical to legal certainty if the Secretary of State were permitted (even subject to rationality review) to interpret it other than in accordance with the objective meaning that a reasonable and literate person would ascribe to it.”
I agree with that reasoning. Discretion must be exercised in a manner that accords with the policy’s design and purpose. This interpretation promotes legal certainty and ensures that applicants can rely on the published policy when deciding whether to apply for ILR.

Comparative Authorities: Ellis and TT

[40]In Ellis Chamberlain J was considering an earlier version of the DL policy. Section 10.1 of that version was materially identical to the first two paragraphs of the current guidance Although Ellis is not binding on this Court, its reasoning on the interpretation of the DL policy is persuasive authority. There was no dispute between the parties that Chamberlain J’s explanation of how the DL policy should be interpreted is correct:(i) applicants granted DL before July 2012 “will ‘normally’ continue to be dealt with under that policy”;(ii) those who have accrued six years’ continuous leave would ‘normally’ be eligible for ILR; and(iii) caseworkers may depart from the norm only where there are circumstances warranting such departure (with “a criminal conviction since the last occasion when the matter was considered” given as a paradigm example). 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.[41]The Claimant and Defendant both rely on Ellis. In that case, the claimant had two convictions:(i) obtaining property by deception for which he was sentenced on 26 March 2020 to 12 months’ imprisonment; and(ii) perverting the course of justice, for which he was sentenced to fourmonths’ imprisonment on 1 March 2017. The first conviction pre-dated his original grant of DL on 14 September 2011; the second conviction post-dated his most recent grant of leave on 5 April 2016. At [53] Chamberlain J 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:
“The cover letter indicated that the decision-maker was prepared to grant limited DL, but ‘not to exercise discretion to grant settlement'. The new Annex A provided what the earlier one had not: a reason for granting limited DL, rather than ILR. The reason was ‘the criminality that is detailed above'. As was apparent from what was stated ‘above', this included 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 for perverting the course of justice imposed in February 2017, which was a new development since Mr Ellis's last application. Read in context, the reasons given in the 25 November 2019 letter and the new Annex A, though hardly impressive, did not give rise to doubt as to whether 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. Although this was an application for DL outside the Immigration Rules, paragraph 322(1C)(iii) attests to the significance that criminality resulting in a custodial sentence of less than 12 months can have.”
[42]Chamberlain J distinguished the 2010 offence (known about before the first grant of DL) and focused on the “new development” of the 2017 offence. It was the later conviction that troubled the Tribunal as shown by the reference to paragraph 322(1C)(iii) (a precursor to para 9.4.1), which applied only to sentences under 12 months and therefore to the 2017 offence, not the 2010 offence. This illustrates the kind of circumstance that may justify departing from the “normal position”: a criminal conviction since the last occasion the matter was considered. However, Ellis is not authority for the proposition that any historic conviction can justify departure, nor that offending known at the time of previous DL grants cannot amount to a “good reason” to depart from the norm. Although the 2010 conviction was more serious than the 2017 conviction and on the face of it both were covered by the transitional provisions, Chamberlain J’s reasoning focused on what clearly does justify departure from the normal pathway—namely, a new development since the last grant of leave, such as a subsequent conviction. The Tribunal treated the later 2017 conviction as decisive, but it did not purport to exclude reliance on historic offending altogether. The judgment illustrates the internal logic of the policy: continuity should be maintained unless circumstances arise which render the case exceptional, and a subsequent conviction is a clear example of such a circumstance. However, it does not foreclose the possibility that, in an appropriate case, historic criminality might be treated as sufficiently serious to justify departure, provided the decision-maker engages with the DL policy and gives a reasoned explanation for considering the case abnormal. For example, new information could come to light about a known conviction.[43]The Defendant referred the Court to another unreported Upper Tribunal case - R (TT) v SSHDJR-2025-LON-000110 where a challenge to a refusal of ILR under the DL policy, based on a criminal conviction predating the original grant of DL, was dismissed. Ms Sullivan submits that TTis of illustrative value only.[44]Neither Ellis, nor TT directly address the question in this case, but several observations can be made. First, Ellis contains a detailed and reasoned interpretation of the pre-July 2012 DL policy, explaining its purpose and the meaning of ‘normally’ in the transitional provisions. Furthermore, it identifies the correct approach (as discussed in paragraph 40 above). Second, TT proceeded on an entirely different basis, treating paragraph 9.4.1 of the Immigration Rules as applicable and requiring the claimant to show ‘exceptional circumstances.’ That approach is inconsistent with the concession made by the Defendant in the Order of 1 July 2025 that paragraph 9.4.1 does not apply to transitional DL cases, and it is not compliant with the reasoning in Ellis. Third, the Defendant now accepts that Ellis sets out the correct law and has purported to apply it in the present decision. Finally, Ellis represents the Upper Tribunal’s considered view on the proper construction of the DL policy and ought to have been considered in TT. To the extent that the Court has been invited to place any reliance on TT as a persuasive authority Ellis is to be preferred. It provides a clear interpretation of the relevant policy, promotes legal certainty, aligns with the published framework, and reflects the Defendant’s concession.[45]Against that interpretative backdrop, I turn to the facts of this case. Application to Facts Historic Offending

Application to Facts

[46]The starting point is the pre-2012 DL policy and its transitional arrangements. That policy states that those granted DL before 9 July 2012 “will normally continue to be dealt with under that policy through to settlement” provided they continue to qualify on the same basis as the original grant. It further explains that, when settlement is sought, “where a person has held DL for an appropriate period and continues to qualify for DL, they should be granted ILR/settlement.”[47]The pre-2012 DL policy contained its own criminality and exclusion provisions, distinguishing(i) cases covered by exclusion (including serious crimes) which would be on a 10-year route and(ii) the ‘normal’ 6-year route for others; any time in prison did not count towards those periods. The policy also contemplated ministerial denial of settlement even after 10 years where, for a narrow class, presence was not conducive to the public good. These provisions were self-contained. A natural reading of the DL policy is that it underscores both continuity and predictability for those on the transitional route.[48]The Defendant’s decision relied on the Claimant’s 2006 conviction as a “good reason” to depart from the normal position and invokes Part 9 by analogy. It was accepted that there had been no further offending since that conviction. In context, the reasoning uses the same historic conviction that pre-dated all previous grants of DL (2010 onwards) to deny ILR. That conviction was repeatedly assessed without disqualifying the Claimant from DL.[49]The fact that the Claimant was repeatedly granted standard three-year DL demonstrates that the Defendant accepted the conviction did not disqualify him from the six-year pathway. Indeed, in 2010 and again in 2013, the Claimant was informed that he was on that route to settlement. To treat the same conviction—20 years later and without any intervening offending—as a fresh and compelling reason to refuse ILR undermines the settled expectation created by the transitional policy andis inconsistent with its purpose. As Mr Furner submits, the alternative approach would deprive applicants of any clear understanding of the applicable policy, compelling them to incur significant fees on a speculative basis. Reliance on historic criminality alone introduces uncertainty and arbitrariness into a scheme designed to promote continuity. A lawful departure from the norm requires something new: a development unknown when the Claimant was placed on the pathway to ILR. That interpretation is consistent with the published policy and with judicial guidance that the word “normally” preserves discretion only where circumstances arise that justify departure, such as a subsequent conviction or other new adverse factor. No such development exists here. The impugned decision does not address the threshold question—what policy governs this application—but instead relies on general references to criminality.[50]The Defendant’s reasoning conflates 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 conclusion is reinforced by the Medical Claims Policy which adds a further presumption of settlement in cases involving serious health conditions.

Medical Claims Policy

[51]The Medical Claims policy expressly mitigates the position for medical cases and operates alongside the Discretionary Leave framework to safeguard continuity for medically vulnerable applicants. It recognises that the threshold for granting such leave is exceptionally high and therefore provides that, once the qualifying period has been met, ILR should generally be granted unless there is a compelling reason to refuse. By requiring caseworkers to refer back to the DL policy, the policy reinforces its protective purpose: to prevent prolonged uncertainty for individuals who have complied with immigration requirements and whose presence in the UK is justified on medical grounds.[52]Against this backdrop, 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. The Medical Claims policy anticipates that medical cases may involve some adverse history yet presumes settlement in the absence of new or particularly serious concerns. The Defendant’s analysis does not identify any new, aggravated, or ongoing public protection concern, nor any restricted leave basis, but simply relabels a historic fact as compelling. That is a misapplication of the medical policy in tandem with the DL transitional scheme.[53]I reject the submission that because the Medical Claims policy refers back to the DL policy, it adds nothing. Its terms create a presumption that, once the qualifying period has been met, ILR should be granted in medical cases unless there is a compelling reason to refuse. That presumption would be meaningless if the same factor—such as a historic criminal record—that did not prevent earlier grants of DL could later be treated as the compelling reason to deny settlement. Such an interpretation would undermine the policy’s protective purpose and the expectation of continuity it was designed to secure.[54]The Medical Claims policy works in tandem with the DL policy to strengthen the expectation that medically vulnerable applicants will be granted settlement once they meet the qualifying period. It emphasises that the initial threshold for granting leave on medical grounds is already very high, meaning only serious cases qualify. Because of this, the policy states there should be a “compelling reason” for someone who has met the required period of leave to be refused ILR. In effect, this language signals that refusal should only occur in exceptional circumstances. 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.

Section 55 Duty

[55]The statutory duty under the 2009 Act requires decision-makers to treat the best interests of a child as a primary consideration in all decisions affecting them. That obligation is not satisfied by a superficial reference to family life and the weight of the public interest. While the decision need not be lengthy, the DL policy makes it clear that it demands a substantive evaluation of the child’s best interests in the real-world context of the decision.[56]The Defendant’s reasoning falls short of the required standard. Although the decision acknowledged the written representations from the Claimant’s solicitor, which clearly explained the impact that refusal of ILR would have on D, it treated the child’s best interests narrowly. The analysis focused on the absence of removal and speculated that alternative care arrangements could be made. That approach ignores the practical consequence that D remains without lawful status and cannot register as a British citizen unless one of her parents obtains ILR before she turns 18 or she resides continuously in the UK for ten years (see - sections 1(3) and 1(4) of the British Nationality Act 1981). These statutory entitlements were a material consideration that the Defendant failed to weigh against the public interest in refusing ILR to a medically vulnerable and long-compliant parent who has lived blamelessly for nearly two decades. The solicitors did not suggest that D’s interests were engaged because of any imminent removal of the Claimant; rather, they highlighted the real risk that D and P would be required to leave, as evidenced by the Claimant’s own statement and the Defendant’s refusal of P’s human rights claim. Neither piece of evidence is mentioned in the decision. This misunderstanding of D’s interests is compounded by the irrelevant observation that “if you were required to leave the UK, there would be alternative caring arrangements for your child in the UK.” The speculative suggestion of alternative care arrangements is unsupported by evidence. Ms Sullivan accepted that irrelevant considerations ought to be disregarded in the balancing exercise and conceded that their inclusion undermined the reasoning.[57]Even if the historic conviction is treated as relevant, a lawful and proportionate assessment requires weighing its age and context against the Claimant’s sustained compliance, medical condition, and the welfare of D. The public interest in immigration control does not demand the indefinite exclusion from ILR of a person whose case falls squarely within the policy framework established for that purpose. On any fair reading, the Defendant did not discharge her statutory duty under section 55.[58]For these reasons, the claim succeeds on Ground 1.

Ground 2: Irrationality

[59]As Ground 2 is advanced only in the alternative, it is unnecessary for the Court to determine irrationality. The Claimant’s primary case under Ground 1 succeeds on the basis of misapplication of policy, which is dispositive of the claim.[60]In those circumstances, any consideration of Ground 2 would be academic and is therefore not addressed.

Conclusion and Remedy

[61]Properly construed, the transitional DL policy mandated a grant of ILR to the Claimant unless there was a lawful, new basis to depart from the norm. No such basis was identified. The Defendant misapplied her policies by treating historic criminality already weighed in prior DL decisions as a fresh and compelling reason to refuse settlement. The Medical Claims policy was likewise misapplied: the asserted “compelling reason” is circular and fails to engage with the policy’s protective logic for medical cases on the transitional route.[62]Both the DL transitional policy and the Medical Claims policy require consideration of individual circumstances. D’s best interests were a material factor in determining whether to grant or refuse ILR. The Defendant’s failure to properly integrate section 55 into that assessment compounds the misapplication of policy.[63]The claim succeeds; the Defendant’s decision dated 23 September 2025 is quashed.[64]Given the Court’s conclusions on the proper construction of the relevant policies, the only lawful course is to grant ILR; remittal would serve no legitimate purpose and would cause further delay. The Court exercises its power under section 31 of the Senior Courts Act 1981 to grant such relief as is just; where the policy framework leaves no lawful basis for refusal, and the outcome is inevitable, substitution rather than remittal is appropriate.

Consequential Matters

[65]I am grateful to counsel and the solicitor-advocate for their clear and helpful submissions.[66]I will invite parties to file written submissions on any consequential matters, including costs and the precise terms of any order, within 7 days of hand-down.

Cited in 1 later judgment