“Your application was made on24 September 2022 and the guidance states that the new criminality rules apply to applications made on or after1 December 2020 . On12 September 2000 you were convicted of an offence and sentenced to 15 months imprisonment. On28 August 2007 you were convicted of a further offence and sentenced to 12 months imprisonment. We are satisfied that you have been convicted of a criminal offence in the UK for which you received a custodial sentence of 12 months or more. We therefore refuse you Indefinite Leave to Remain. Although you do not meet paragraph 9.4.1.(a) under Part 9 of the Immigration Rules, because you have been granted DL since your conviction and you have not offended since your last custodial sentence, a decision has been made to consider you for a further period of DL on an exceptional basis. However, in order for us to consider and, if successful, grant a relevant period of DL, you would need to pay the immigration health surcharge (IHS) for 36months. Further information on this can be found in the ‘next steps’ section below. You contend that paragraph 9.4.1. should not be applied to your application. You have raised that it was appropriate for your application to have been considered under the terms of the policy applicable at the time of the original grant (2009). Policy and guidance are updated periodically and supersede previous versions but may contain directions to apply earlier policy and/or guidance in specific circumstances. Your application has been considered with reference to Discretionary Leave Guidance, Version 11.0. Your application is for a different status (settlement) and not a continuation of what you have been granted previously, it is appropriate to consider it with reference to current guidance. The current and previous DL guidance makes no assurances that settlement will be granted to individuals; rather, it consistently states that individuals can become ‘eligible to apply’ for settlement after completing their requisite period of continuous leave. Therefore, we still retain the ability to refuse ILR as there was never an expectation of this and only exceptional and mitigating circumstances could warrant a departure from this. Alternatively, you have raised that your application should be dealt with under the transitional arrangements detailed in the DL guidance at the date of application. At time of the application on24 September 2022 the relevant policy was Discretionary Leave Version 9.0 (Published for Home Office staff on16 December 2021 ). Under the heading “Transitional Arrangements” that policy indicated that those who had been granted DL prior to9 July 2012 : “will normally continue 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” and “Where an individual has accrued 10 years’ lawful residence under the DL policy and applies for settlement, caseworkers must consider Part 9 of the Immigration Rules and, in particular, paragraph 322(1C)”
“will normally continue 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” and “Where an individual has accrued 10 years’ lawful residence under the DL policy and applies for settlement, caseworkers must consider Part 9 of the Immigration Rules.”
“It is accepted that you have lived in the UK since 1998 and have over 13 years continuous DL, but this is not the sole requirement to be granted ILR on the DL route. Your length of residence in the UK has been considered, however, length of residence alone is not a sufficiently exceptional or compelling reason to grant ILR outside the rules. Your circumstances have been considered, in accordance with the published guidance, they cannot be distinguished at a high degree from other cases which would make it necessary to deviate from the standard approach. It has therefore been decided that it is not appropriate to grant ILR under exceptional circumstances in this instance.”
“(1) Ground 1: “The Defendant failed to follow her own policy in respect of considering the Claimant’s application in accordance with the policy which applied at the time he was originally granted DL (or at8 July 2012 , the date at which Transitional Arrangements were operative)”; (2) Ground 3: “paragraph 9.4.1 of the Immigration Rules and its application via DL Version 11 are unlawful (Articles 8 and 14 ECHR) because it does not apply to applicants for settlement in the UK under the relevant provisions of the Rules’ Appendix FM”; (3) Ground 4: “The Defendant took irrelevant considerations into account and failed to take into account relevant considerations in refusing to grant ILR exceptionally outside the Rules.”
“On1 December 2020 , the Immigration Rules were amended to introduce a single threshold for a mandatory refusal on the basis of a custodial sentence of at least 12 months. The policy for this change is set out in the General grounds for refusal- Criminality (GGfR) guidance. The new criminality rules apply to applications made after 9 am on01 December 2020 and state the following: ‘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; or (b) is a persistent offender who shows a particular disregard for the law; or (c) has committed a criminal offence, or offences, which caused serious harm.’ This means that claimants who have applied for permission to stay on or after1 December 2020 and who have a custodial sentence of 12 months or more must be refused.”
“It follows from the above that I do not read the DL Policy as saying that, once it is decided that an individual continues to qualify 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 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 he or she takes account of the policy and has reason for considering the case to be abnormal.”
“39. First, those (such as Mr Ellis) granted leave under the DL Policy in force before9 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 before9 July 2012 .”
“Second, the DL Policy applicable before9 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.”
“S-ILR.1.4.The presence of the applicant in the UK is not conducive to the public good because they have been convicted of an offence for which they have been sentenced to imprisonment for less than 4 years but at least 12 months, unless a period of 15 years has passed since the end of the sentence.”
“4 It is not difficult, when considering any provision of the Convention, including article 8 and article I of the First Protocol (“article 1P1”), to identify the core values which the provision is intended to protect. But the further a situation is removed from one infringing those core values, the weaker the connection becomes, until a point is reached when there is no meaningful connection at all. At the inner #extremity a situation may properly be said to be within the ambit or scope of the right, nebulous though those expressions necessarily are. At the outer extremity, it may not. There is no sharp line of demarcation between the two. An exercise of judgment is called for. Like my noble and learned friend in para 60 of his opinion, I cannot accept that even a tenuous link is enough. That would be a recipe for artificiality and legalistic ingenuity of an unacceptable kind. 5 Like Kennedy LJ in the Court of Appeal, I do not think that the enhanced contribution required of Ms M impairs in any material way her family life with her children and former husband, or her family life with her children and her current partner, or her private life. No doubt Ms M has less money to spend than if she were required to contribute less (or would do so, but for the discretionary adjustment to which my noble and learned friend refers in para 46 of his opinion). But this does not impair the love, trust, confidence, mutual dependence and unconstrained social intercourse which are the essence of family life, nor does it invade the sphere of personal and sexual autonomy which are the essence of private life. I regard the application of a rule governing a non-resident parent’s liability to contribute to the costs incurred by the parent with care, even if it results in the non-resident parent paying more than she would under a different rule, as altogether remote from the sort of abuse at which article 1P1 is directed.”
“It is likely that, in most cases, a decision as to whether a person under the RL policy is entitled to indefinite leave to remain does not engage Article 8. Any interferences arising from the refusal of indefinite leave to remain would be likely to be minimal, and thus not engage Article 8. But that is not to say that there will not be case-specific scenarios where, due to the particular circumstances of the individual concerned, Article 8 is engaged by the decision to refuse to grant indefinite leave to remain, and to maintain the application of the RL policy.”
“120. The first is length of residence in the UK. In Kardi, as we have seen, Richards LJ, while endorsing the "road blocks" element in the policy, acknowledged that there might come a point when a migrant has been in the UK so long that the only course reasonably open to the Secretary of State would be to grant ILR (see para. 45 above). 5 It is true that at the time that he was considering the version of the policy then in force did not directly address the grant of ILR or, therefore, say that it should be exceptional; but I nevertheless regard what he said as applicable to the policy in the form with which we are concerned. In other words, in principle a particular case may become exceptional because of the length of time that the migrant has been here. I emphasise the word "may": length of residence is only one of the relevant factors and, as I say below, there will be cases where it would be legitimate to refuse ILR however long the migrant has been here because of the seriousness of the crimes in question. But in an appropriate case length of residence may suffice to bring a case into the exceptional category. It is not for the Court to suggest, still less prescribe, how long that period should be: even if that were constitutionally appropriate, which it is not, it must depend on the circumstances. But it is safe at least to point out that even a migrant with "ordinary" discretionary leave to remain will not normally be eligible for ILR until they have been here for ten years (see para. 12 (2) above), and the considerations underlying the Secretary of State's policy would normally require that a migrant in the excluded category should have to wait much longer than that. It is also material that, other things being equal, a person who is present in the UK without leave only becomes eligible for ILR, even if he or she satisfies the suitability requirements, after twenty years – see paragraph 276ADE (iii) of the Immigration Rules: I do not say that the two situations are analogous, but simply that that rule provides some context.”