Sheikh Hammad Farooq, R (on the application of) v Secretary of State for the Home Department (meaning of permission to stay) [2025] UKUT 411 (IAC)

[2025] UKUT 00411 (IAC)R (on the application of Farooq) v Secretary of State for the Home Department (meaning of permission to stay)
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Venue Field House,Hearing Hearing date: 30 July 2025
Breams Buildings
London, EC4A 1WR
Promulgated on: 1 October 2025
Before
THE HON. MR JUSTICE RITCHIE,SITTING AS A JUDGE OF THE UPPER TRIBUNALUPPER TRIBUNAL JUDGE NORTON-TAYLORTHE KINGon the application of
Between
SHEIKH HAMMAD FAROOQApplicantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Mr S Karim(instructed by AWS Solicitors) for ApplicantMr M Biggs(instructed by the Government Legal Department) for Respondent‘Permission to stay’ has the same meaning as ‘leave to remain’.
J U D G M E N T
Date 2025-10-01
[1]The first issue in this case concerns the correct construction of the term “permission to stay” (“PTS”) in the general grounds for refusal under Part 9 of the Immigration Rules (“the Rules”) and Appendix Long Residence to the Rules (“ALR”). We are asked to determine whether paragraph 9.4.1, the criminality bar in Part 9 of the Rules, applies to an application for settlement made under ALR.[2]The second issue concerns whether the Respondent lawfully exercised her residual discretion when considering the Applicant’s application for settlement under ALR. This involves scrutiny of policy guidance issued by the Respondent relating to criminality and the grant of settlement outside of the Rules.[3]We are grateful to Counsel for their high quality submissions, both written and oral.

Factual background

[4]The Applicant is a citizen of Pakistan who was born in 1981. He came to the United Kingdom illegally on 23 March 2003 (it is common ground that references to the entry being 4 June 2006 are incorrect). On 3 February 2006, the Applicant was convicted of obtaining services by deception and using a false instrument, for which he was sentenced to 12 months’ imprisonment. Having made an unsuccessful application in 2012 for limited leave to remain (“LLTR”) as the spouse of a person settled in the United Kingdom, the Applicant was subsequently granted five periods of LLTR, running from 1 October 2014 until 28 March 2026. The first grant was based on his status as a spouse, whilst the other four were on family life grounds.

The decision under challenge

[5]On 7 September 2024, the Applicant applied for indefinite leave to remain (“ILR”) under ALR on the basis that he had accrued 10 years’ continuous lawful residence in the United Kingdom. By a decision made on 10 September 2024, the ILR application was refused. The decision begins by recognising that the Applicant had extant LLTR on human rights grounds and that he was not required to leave the United Kingdom. Having set out the relevant immigration history, the decision cited several provisions of ALR, together with other provisions in the Rules relating to the meaning of “continuous residence” in the United Kingdom and, importantly, paragraph 9.4.1 of Part 9 of the Rules (although the specific paragraph number was not cited).[6]The Respondent’s refusal can be summarised as follows. It was accepted that the Applicant had accrued the requisite 10 years’ continuous lawful residence in this country, that he had sufficient knowledge of English language and had passed the “Life in the UK” test. However, as result of his sentence of 12 months’ imprisonment in 2006, the Respondent concluded that the criminality bar in paragraph 9.4.1(a) of Part 9 applied and so the application for ILR should be refused, with reference to paragraphs LR 10.1 and LR 15.7 of ALR.[7]Under the heading “Consideration of Exceptional Circumstances”, the Respondent concluded that the Applicant had failed to demonstrate any basis on which ILR should be granted on an exceptional basis. It was noted that the Applicant’s two children did not live with him and that he held extant leave under the parent route of Appendix FM to the Rules. The refusal of the ILR application did not negatively affect the children, with reference to section 55 of the Borders, Citizenship and Immigration Act 2009. The Respondent’s decision did not attract a right of appeal.

The application for judicial review

[8]The application for judicial review was sealed on 14 November 2024. The Applicant put forward 9 grounds of challenge. The Respondent filed and served her Acknowledgement of Service and sought to defend the entirety of the claim. Permission to apply for judicial review was refused on the papers by Upper Tribunal Judge O’Brien on 6 February 2025. The application was renewed at a hearing before Upper Tribunal Judge Hoffman. He granted the Applicant permission to rely on amended grounds of challenge and that hearing was adjourned with directions. Amended summary grounds of defence were subsequently provided by the Respondent.[9]The matter came back before Upper Tribunal Judge Rastogi on the papers. She noted that the Applicant no longer relied on grounds 1-5, but maintained grounds 6-9, as amended and permission was granted on those grounds.[10]Case management directions were issued. An agreed trial bundle, indexed and paginated 1-188 was filed and served, followed later by an authorities bundle, which was supplemented by two additional items.

The grounds

[11]The four grounds on which permission was granted can be summarised as follows. First, the Respondent’s interpretation of the relevant Rules was unlawful (ground 6). Second, the Respondent failed to apply the relevant guidance to the exercise of discretion (ground 7). Third, there had been a failure to exercise residual discretion and to have sought further representations from the Applicant (ground 8). Fourth, the Respondent’s application of the Rules had been inflexible and unreasonable (ground 9). Relevant legal provisions The Immigration Act 1971

Relevant legal provisions

[12]Section 1(4) of the 1971 Act provides:
“1 - General principles … (4) The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom.”
[13]There is no challenge to the lawfulness of the relevant Rules in this case. Section 3 provides the foundation for the control of non-British nationals wishing to enter and/or remain in the United Kingdom:
“3 - General provisions for regulation and control (1) Except as otherwise provided by or under this Act, where a person is not a British citizen (a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act; (b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period; (c) if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely— (i) a condition restricting his work or occupation in the United Kingdom; (ia) a condition restricting his studies in the United Kingdom; (ii) a condition requiring him to maintain and accommodate himself, and any dependants of his, without recourse to public funds; (iii) a condition requiring him to register with the police; (iv) a condition requiring him to report to an immigration officer or the Secretary of State; and (v) a condition about residence. (2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality). If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid). (3) In the case of a limited leave to enter or remain in the United Kingdom,— (a) a person's leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions, but if the limit on its duration is removed, any conditions attached to the leave shall cease to apply; and (b) the limitation on and any conditions attached to a person's leave (whether imposed originally or on a variation) shall, if not superseded, apply also to any subsequent leave he may obtain after an absence from the United Kingdom within the period limited for the duration of the earlier leave.” (1) Except as otherwise provided by or under this Act, where a person is not a British citizen (a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act; (b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period; (c) if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely— (i) a condition restricting his work or occupation in the United Kingdom; (ia) a condition restricting his studies in the United Kingdom; (ii) a condition requiring him to maintain and accommodate himself, and any dependants of his, without recourse to public funds; (iii) a condition requiring him to register with the police; (iv) a condition requiring him to report to an immigration officer or the Secretary of State; and (v) a condition about residence. (2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality). If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid). (3) In the case of a limited leave to enter or remain in the United Kingdom,— (a) a person's leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions, but if the limit on its duration is removed, any conditions attached to the leave shall cease to apply; and (b) the limitation on and any conditions attached to a person's leave (whether imposed originally or on a variation) shall, if not superseded, apply also to any subsequent leave he may obtain after an absence from the United Kingdom within the period limited for the duration of the earlier leave.”
[14]Section 33 of the 1971 Act includes the following definitions; “33 – Interpretation (1) … “limited leave” and “indefinite leave” means respectively leave under this Act to enter or remain in the United Kingdom which is, and one which is not, limited as to duration; “settled” shall be construed in accordance with subsection (2A) below … (2A) Subject to section 8(5) above, references to a person being settled in the United Kingdom are references to his being ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain.”

The Rules

[15]The term “permission to stay” (“PTS”) was first introduced to the Rules on 1 December 2020 pursuant to the Statement of Changes HC 813.[16]Part 6 of the Rules concerns the interpretation of the terms used. Those relevant to this case are as follows:
“Permission to enter” has the same meaning as leave to enter under the Immigration Act 1971. “Permission to stay” has the same meaning as leave to remain under the Immigration Act 1971 (and includes a variation of leave to enter or remain and an extension of leave to enter or remain). “Application for leave to remain” and “application for permission to stay” includes an application for variation of leave to enter or remain of a person in the UK. “Settled” has the same meaning as in section 33(1) of the Immigration Act 1971. “Settlement” means indefinite leave to enter or remain.”
[17]The relevant provisions under Part 9 of the Rules (as at the date of the Respondent’s decision) are as follows:
“Grounds for refusal. Suitability requirements apply to all routes and must be met in addition to validity and eligibility requirements. Where this Part applies a person will not meet the suitability requirements if they fall for refusal under this Part. A person may also have their entry clearance or permission cancelled on suitability grounds. More than one grounds for refusal or cancellation may apply, for example, the presence of a foreign criminal in the UK may not be conducive to the public good. The Immigration Act 1971, section 76 of the Nationality, Immigration and Asylum Act 2002 (revocation of indefinite leave), the Immigration (Leave to Enter and Remain) Order 2000 and Schedule 2 of the Immigration Act 1971 set out the powers to cancel entry clearance or permission. These rules set out how those powers are to be exercised. Criminality grounds 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.”
Criminality grounds (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.”

Criminality grounds

[18]It is to be noted that all other substantive provisions under Part 9 also apply to applications for “permission” to enter and/or stay.[19]The relevant provisions of ALR are as follows:
“Appendix Long Residence The Long Residence route is for a person who has lived in the UK lawfully and continuously for 10 years or more. The person can count time with permission on most routes towards the 10 year qualifying period. There is no provision for dependents of a person on the Long Residence route to apply on this route. A person may apply for immediate settlement if they meet all the requirements for settlement or may apply for temporary permission to stay if they meet the suitability and qualifying period and continuous residence requirements but do not meet the English language or Knowledge of life in the UK requirements. A person who has lived in the UK for a long period but has not been lawfully and continuously resident for 10 years may be eligible to apply under Appendix Private Life. Permission to stay on the Long Residence route Validity requirements for permission to stay on the Long Residence route LR 1.1. A person applying for permission to stay on the Long Residence route must apply online on the gov.uk website on the specified form “Application to extend your stay in the UK on the basis of long residence”. … Suitability requirements for permission to stay on the Long Residence route LR 2.1. The decision maker must be satisfied that the applicant should not be refused under Part 9: grounds for refusal. … Decision on an application for permission to stay on the Long Residence route LR 6.1. If the decision maker is satisfied the suitability and eligibility requirements for permission to stay on the Long Residence route are met, the application will be granted. LR 6.2. If the decision maker is not satisfied the requirements for permission to stay on the Long Residence route are met, the applicant will be considered under the leave to remain rules for a partner, parent or child under Appendix FM (family life) and the permission to stay requirements of Appendix Private Life, and where those requirements are met, the applicant will be granted leave to remain under the relevant rules in Appendix FM (family life) or granted permission to stay under Appendix Private Life. LR 6.3. Subject to LR 6.2, if the decision maker is not satisfied that the applicant meets the suitability and eligibility requirements for permission to stay on the Long Residence route, the application will be refused. … Period of grant for permission to stay on the Long Residence route LR 7.1. The applicant will be granted permission to stay for a period of 24 months. … Settlement on the Long Residence route Validity requirements for settlement on the Long Residence route LR 9.1. A person applying for settlement on the Long Residence route must apply online on the gov.uk website on the specified form “Apply to settle in the UK – long residence”. … Suitability requirements for settlement on the Long Residence route LR 10.1. The decision maker must be satisfied that the applicant should not be refused under Part 9: grounds for refusal. … Decision on an application for settlement on the Long Residence route LR 15.1. If the decision maker is satisfied that the suitability and eligibility requirements for settlement on the Long Residence route are met, the applicant will be granted settlement. LR 15.2. If the decision maker is not satisfied the suitability and eligibility requirements for settlement on the Long Residence route are met, but thinks the applicant may meet requirements for permission to stay on the Long Residence route or one of the following routes, the application will be varied by the Secretary of State to an application for permission to stay: (a) as a partner, parent or child under Appendix FM (family life); or (b) under Appendix Private Life. LR 15.3. If the application is varied as set out in LR 15.2, the Secretary of State will contact the applicant informing them of this variation and: (a) no additional application fee for the application for permission to stay will be required and the settlement application fee will not be refunded; and (b) the applicant must pay any required Immigration Health Charge. … LR 15.5. If the application is varied to an application for permission to stay and the decision maker is satisfied the suitability and eligibility requirements for permission to stay on the Long Residence route are met, the applicant will be granted permission to stay on the Long Residence route. LR 15.6. If the decision maker is not satisfied the requirements for permission to stay on the Long Residence route are met, the applicant will be considered under the leave to remain rules for a partner, parent or child under Appendix FM (family life) and the permission to stay requirements of Appendix Private Life, and where the relevant requirements are met, the applicant will be granted under those rules. LR 15.7. If the decision maker is not satisfied the requirements for settlement or permission to stay on the Long Residence route are met, and the applicant is not granted permission to stay under Appendix FM (family life) or Appendix Private Life, the applicant will be refused settlement on the Long Residence route.”
Permission to stay on the Long Residence route Validity requirements for permission to stay on the Long Residence route … … Residence route Period of grant for permission to stay on the Long Residence route Settlement on the Long Residence route Validity requirements for settlement on the Long Residence route … … Residence route (a) as a partner, parent or child under Appendix FM (family life); or (a) no additional application fee for the application for permission to stay will be required and the settlement application fee will not be refunded; and (b) the applicant must pay any required Immigration Health Charge.

Construing the Rules: case law

[20]The leading authority on the correct approach to construing the Rules is Mahad v Entry Clearance Officer [2009] UKSC 16; [2010] 1 WLR 48, in which Lord Brown, JSC, ruled at [10] that:
“Essentially it comes down to this. The Rules are not to be construed with all the strictness applicable to the construction of the statute or a statutory instrument but, instead, sensibly according to natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State’s administrative policy. The ECO’s counsel readily accepted that what she meant in a written case by the proposition “the question of interpretation is… what the Secretary of State intended his policy to be” was that the courts task is to discover from the words used in the Roles what the Secretary of State must be taken to have intended… But that intention is to be discerned objectively from the language used, not defined by reference to supposed policy considerations.”
[21]In R (Wang) v SSHD [2023] UKSC 76; [2023] 1 WLR 2125, Lord Briggs, JSC, referred to Mahad and, at [31] concluded that, apart from a possible relaxation of strictness, the interpretation of the Rules did not involve any significant departure from the general principles of statutory construction. He went on to state that the sensible approach to discerning the natural and ordinary meaning of the words used was “simply the consequence of keeping in mind the context and purpose of the Immigration Rules.”[22]In R (Project for the Registration of Children as British Citizens) v SSHD [2022] UKSC 3; [2022] 2 WLR 343, a case concerned with the interpretation of statutory provisions rather than the Rules, the Supreme Court emphasised the importance of viewing the words used in the round. At [29], Lord Hodge, DPSC, confirmed that:
“Words and passages in the statute derive their meaning from the context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections.”
[23]We take into account that statutory provisions should not be interpreted so as to produce absurd results, whilst at the same time ensuring that a court is not substituting their view of what is reasonable for the policy objective chosen by the legislature: R (PACCAR Inc. and others) [2023] UKSC 28, per Lord Sales at [43]:
“43. The courts will not interpret a statute so as to produce an absurd result, unless clearly constrained to do so by the words Parliament has used: see R v McCool [2018] UKSC 23, [2018] 1 WLR 2431, paras 23-25 (Lord Kerr of Tonaghmore), citing a passage in Bennion on Statutory Interpretation, 6th ed (2013), p 1753. See now Bennion, Bailey and Norbury on Statutory Interpretation, 8th ed (2020), section 13.1(1): “The court seeks to avoid a construction that produces an absurd result, since this is unlikely to have been intended by the legislature”
. As the authors of Bennion, Bailey and Norbury say, the courts give a wide meaning to absurdity in this context, “using it to include virtually any result which is impossible, unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial, or productive of a disproportionate counter-mischief”. The width of the concept is acceptable, since the presumption against absurdity does not apply mechanistically but rather, as they point out in section 13.1(2), “[t]he strength of the presumption … depends on the degree to which a particular construction produces an unreasonable result”. I would add that the courts have to be careful to ensure that they do not rely on the presumption against absurdity in order to substitute their view of what is reasonable for the policy chosen by the legislature, which may be reasonable in its own estimation. The constitutional position that legislative choice is for Parliament cannot be undermined under the guise of the presumption against absurdity. There is an issue between the parties whether the presumption against absurdity provides relevant guidance in the circumstances of this case.” In our judgment the same proposition applies to the interpretation or construction of the Rules.[24]The Courts have made it clear that it is the Respondent who drafts the Rules - she “holds all the cards” - and extraneous materials such as policy guidance cannot be relied on to advocate for a more restrictive interpretation of the Rules: see Pokhriyal v SSHD [2013] EWCA Civ 1568, per Jackson LJ at [43]:
“I respectfully agree with paragraph 70 of Rix LJ’s judgment in Adedoyin. I would, however, add this comment. I do not think it is possible for the Secretary of State to rely upon extraneous material in order to persuade a court or tribunal to construe the rules more harshly or to resolve an ambiguity in the Government’s favour. The Secretary of State holds all the cards. The Secretary of State drafts the Immigration Rules; the Secretary of State issues IDIs and guidance statements; the Secretary of State authorises the public statements made by his/her officials. The Secretary of State cannot toughen up the rules otherwise than by making formal amendments and laying them before Parliament. That follows from the Supreme Court’s reasoning in R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33; [2012] 1 WLR 2208” v Secretary of State for the Home Department [2012] UKSC 33; [2012] 1 WLR 2208”

Statement of changes HC 590: Explanatory Memorandum

[25]ALR was brought into the Rules by the Statement of Changes HC 590, with effect from 11 April 2024. Paragraphs 5.35 and 5.36 of the Explanatory Memorandum read as follows:
“5.35. Appendix Long Residence includes a policy change whereby Applicants must have had their current permission for one year (or have been exempt from immigration control within the 12 months immediately before their application) to qualify for settlement on this route. This aligns the requirements of this route with wider requirements for settlement. 5.36. Appendix Long Residence also includes changes to standardise the conditions for grants of temporary permission to stay on the Long Residence route.”

Policy guidance

[26]The two relevant guidance documents put before us were “Grounds for refusal - Criminality”, version 3.0, published on 16 January 2024 (“the Criminality Guidance”) and “Leave outside the Immigration Rules”, version 3.0, published on 29 August 2023 (the LOTR Guidance”).

Previous case law

[27]The decision in R (HE) v SSHD (Paragraph 276B(i) - Lawful residence) [2024] UKUT 417 (IAC) was raised by both parties. The decision in HE involved a challenge to the Respondent’s refusal of ILR under paragraph 276B of the Rules, that being the precursor to the provisions in ALR. The Respondent asserted that HE had used deception to obtain previous leave to remain and she relied on paragraph 9.8.3A of Part 9 of the Rules, which provided that an application for PTS may be refused where a person has used deception in a previous application, whether successfully or not. One of the arguments put forward by HE was that his application for ILR, made in April 2022 (when paragraph 276B was still in force) had not been an application “for entry clearance, permission to enter, or permission to stay” for the purposes of paragraph 9.8.3A: [5(ii)]. Having referred to, amongst other provisions, section 3 and section 33 of the Immigration Act 1971 and paragraph 6.2 of the Rules, at [35]-[36] Upper Tribunal Judge Mandalia set out the parties’ submissions and at [37]-[38] stated his conclusion on the interpretation issue:
“37. As I have already set out, by operation of s3(1)(b) of the 1971 Act, a person who is already in the UK may be given leave to remain for a limited or for an indefinite period. For present purposes, indefinite leave as defined in section 33 of the 1971 Act is simply leave which is not limited as to duration. “Permission to stay” is defined in paragraph 6.2 of the rules and has the same meaning as leave to remain under the 1971 Act. There is no qualitative distinction, or difference in kind, between limited leave and indefinite leave under the 1971 Act. They are both forms of leave to remain. There is no reason why an application for ILR under paragraph 276B should be treated any different to any other application for ILR. It is for all intents and purposes an application for leave to remain under the 1971 Act or for permission to stay under the rules. An application for ILR under paragraph 276B of the rules is therefore also an application for “permission to stay” for the purposes of paragraph 9.8.3A of the Immigration Rules. 38. Paragraph 9.8.3A expressly provides that an application for permission to stay may be refused where a person used deception in relation to a previous application, whether or not successfully. It would as Mr Biggs submits be absurd if paragraph 9.8.3A did not apply to those seeking ILR given that the reasons underlying the rule apply with greater force to those seeking indefinite leave to remain than to those seeking merely limited leave to remain. It makes no sense whatsoever that those seeking ILR pursuant to paragraph 276B of the Immigration Rules should be able to rely upon deception used in a previous application for leave, when those seeking a less permanent status cannot.”
Submissions The Applicant’s case on construction

Submissions

[28]The Applicant relied on his skeleton argument and expanded on this through Mr Karim’s submissions. He submitted that, on the natural and ordinary meaning of the words used, ALR was effectively sub-divided into two parts. The first, in paragraphs LR 1.1-LR 8.1, related to applications for “permission to stay”. The second, in paragraphs LR 9.1-LR 15.7, related to, and only to, applications for “settlement”. Mr Karim submitted that it must follow that “permission to stay” and “settlement” have different meanings: the former relates only to temporary PTS, whilst the latter relates only to ILR/settlement. The phrase “permission to stay” was not used in the second part of ALR. There is a “segregation” within ALR between, on the one hand temporary PTS and, on the other, settlement. On a correct interpretation of the words used, paragraph 9.4.1 of Part 9 of the Rules only applies to applications for “entry clearance, permission to enter or permission to stay” and not to applications for “settlement”. If the Respondent had intended this ground of refusal (and almost all others under Part 9) to apply she could have made it clear, but she had not done so. It follows that paragraph 9.4.1 cannot be relied on by the Respondent when considering paragraph LR 10.1.[29]The Applicant’s interpretation was said to be supported by the definitions contained in paragraph 6.2 of the Rules and the Respondent’s policy guidance on Long Residence, version 21.0, published on 8 July 2024. Mr Karim submitted that HE was readily distinguishable on the basis that it had considered “markedly and meaningfully different” provisions of the Rules, namely paragraph 276B. Finally, Mr Karim submitted that the word “should” in paragraph LR 10.1 did not mean “must”, but instead represented a discretionary power.

The Applicant’s case on discretion

[30]Grounds 7-9 cover three aspects of discretion, with the first two occupying the same territory. Ground 9, which relies on Article 8 of the European Convention on Human Rights (ECHR), was not withdrawn, but did not feature in Mr Karim’s oral submissions. In the alternative, it was submitted that the Respondent had failed to exercise her residual discretion at all, or at least had not done so on a lawful basis. The Criminality Guidance had not been considered. That Guidance contained, amongst other matters, a number of relevant considerations which should have been taken into account, including the passage of time since the end of Applicant’s sentence, the nature of the offence itself, and the fact that it had been a “one-off”. The Respondent had been aware of relevant factors relating to the Applicant’s overall circumstances, even if they had not been specifically referred to in his application and the covering letter. There had been a failure to grapple with the Applicant’s private life and the decision ignored the fact that he had previously been granted many periods of LLTR despite his conviction. The LOTR Guidance did not apply to the Applicant’s case because he was already on the route to settlement. The reference to “exceptional circumstances” in the Respondent’s decision set the bar too high.

The Respondent’s case on construction

[31]The Respondent’s core submission was that there is a “unitary concept” of “leave” encompassing LLTR, ILR/settlement, and PTS. It was submitted that this is clear from what is said in the 1971 Act and the context and purpose of the Rules. There was every reason for the criminality bar in paragraph 9.4.1(a) of Part 9 (and indeed all other provisions under that Part) to apply to applications for settlement under ALR and the contrary would lead to absurd results.[32]Mr Biggs submitted that PTS in the Rules had broad meaning, which could effectively become narrowed (for instance within ALR) by virtue of the context in which it was employed. Whilst the terms “temporary permission to stay” and “permanent permission to stay” could have been used within ALR, their absence did not preclude what was submitted to be the sensible and contextual interpretation urged on us by the Respondent. He submitted that PTS is an umbrella term covering both temporary and permanent PTS. It was submitted that all of Part 9 applied to ALR, whether an individual was applying for temporary PTS on the 24-month route, or for settlement. In support, the Respondent submitted that notwithstanding the different long residence provisions were considered in HE, the decision was on point and should be followed.[33]Mr Biggs also submitted that the term “should” in ALR 10.1 could only sensibly mean “must”. In a case such as the Applicant’s, the Respondent would first consider whether the criminality bar provisions of Part 9 of the Rules applied and, if they did, would then bring them over into the consideration of the settlement application under paragraph LR 10.1.

The Respondent’s case on discretion

[34]Mr Biggs submitted that the Respondent had clearly exercised her residual discretion and the “exceptional circumstances” threshold had been appropriately applied. The LOTR Guidance was applicable because the Applicant was, if he failed under ALR, seeking ILR/settlement outside of the Rules. Certain aspects of the Criminality Guidance relied on by the Applicant did not apply to his circumstances. It was acknowledged that there was an error (described as a “slip”) in the Criminality Guidance: the reference to “sentences of 12 months or less” should instead read “more than 12 months”. He submitted that a Tribunal was able to correct that error in order to prevent any direct conflict with the Rules.[35]Mr Biggs emphasised the absence of specific factors supported by any evidence provided by the Applicant to the Respondent at the time of the settlement application. On what was before her, the Respondent’s exercise of discretion was not irrational. Mr Biggs raised the fact that the Applicant had failed to disclose his conviction in the application form and his representatives had not referred to it in their covering letter. Even if the Respondent had failed to consider certain factors, it was highly likely that the outcome would not have been substantially different, with reference to section 31(2A) of the Senior Courts Act 1981 and section 15(5A) of the Tribunals, Courts and Enforcement Act 2007.[36]Finally, it was submitted that reliance on Article 8 of the ECHR took the Applicant’s case no further. He already had permission to stay based on his family life with his children and there was no evidence to indicate that the refusal of ILR had been materially detrimental. Analysis Construction of paragraph 9.4.1 and ALR

Analysis

[37]Under section 3(1) of the Immigration Act 1971, a person who is not a British citizen requires leave to enter and, once here, to remain in this country. Such leave may have temporal constraints. It may be of limited or indefinite duration: section 3(1)(b). The former is called “limited leave” and the latter is “indefinite leave” but both constitute “leave” under the Act: section 33(1). Thus, we consider that “leave” is a word signifying a right, a unitary concept, encompassing both grants of limited (temporary) duration and indefinite (permanent) duration.[38]Turning to the Rules and the correct construction of them, in paragraph 6.2 the term used is “permission to stay”. It is defined as having the “same meaning as leave to remain under the Immigration Act 1971”. The term “settlement” means “indefinite leave to enter or remain”. Further, an “application for leave to remain” and an “application for permission to stay” includes an application for the variation of leave to enter or remain. So, we consider that “leave” and “permission to stay” are the same unitary concept or right. Both may or may not have temporal constraints. The word “leave” encompasses LLTR and ILR. The words “permission to stay” encompass limited (or temporary) PTS and indefinite (or permanent) PTS. Settlement is the same as ILR and so must also constitute part of PTS. Logically, it follows from this that on a general level, without any ancillary, explanatory, focussing or limiting words, an application for “leave to remain” and one made for “permission to stay” both encompass seeking LLTR/temporary PTS and ILR/permanent PTS. This approach is supported by section 3(3)(a) of the 1971 Act, which allows for a person’s limited leave to be varied by restricting, enlarging, or removing the limit on its duration.[39]Our construction is consistent with the conclusions reached in HE, there being no qualitative distinction between the leave involved in LLTR and ILR, or between leave to remain (in its limited or indefinite form) and the permission involved in PTS.[40]Do the criminality provisions in Part 9 of the Rules indicate that PTS has a more restrictive meaning? In the introductory paragraphs under Part 9 it is stated that the suitability requirements apply to “all routes” and that where Part 9 applies and the application falls for refusal, a person “will not” meet the suitability requirements under the particular route in question. In our judgment, that is a clear statement of intent. As one reads through Section 2 of Part 9, which contains all of the substantive grounds for refusal including the criminality bar in paragraph 9.4.1, it is apparent that each applies to applications for entry clearance, permission to enter or permission to stay. There is no separate reference to applications for ILR or settlement. Mr Karim took this as ammunition for his case. He submitted that if the Respondent intended the grounds for refusal under Part 9 to apply to applications for ILR/settlement, express words to that effect would have been used. This omission, coupled with the fact that “settlement” had its own definition under paragraph 6.2, meant that none of the grounds for refusal apply to an application for ILR/settlement.[41]We reject the Applicant’s submission for the following reasons. First, the introductory words under Part 9 clearly intend its provisions to apply generally to all routes. ILR/settlement under ALR is one of the routes under the Rules. Second, there is nothing within Part 9 which states that its provisions do not apply to applications for ILR/settlement. Third, our previous analysis shows that “PTS” is a unitary concept, the same as “leave”, and encompasses both temporary PTS (LLTR) and permanent PTS (ILR). Fourth, the Applicant’s interpretation would lead to absurd consequences. An applicant seeking temporary PTS would be subject to the criminality bar but an applicant for the more important permanent PTS/ILR/settlement would not be refused on criminality grounds under Part 9, no matter how poor their record was. Criminality gives rise to deportation orders, and exclusion from asylum and humanitarian protection. We conclude that criminality was intended to be relevant to both types of application. The Applicant’s interpretation could not have been the Respondent’s intention when introducing the term PTS to the Rules. Fifth, a broad construction is consistent with the conclusions in HE. Although the long residence provision being considered (paragraph 276B) did not include the term PTS, it nonetheless related to an application for ILR, which amounted to the same thing. Importantly, the Tribunal was concerned with the provision of Part 9 (paragraph 9.8.3A) which did refer to an application for PTS. We agree with UTJ Mandalia when he said at [38]:
“It would as Mr Biggs submits be absurd if paragraph 9.8.3A did not apply to those seeking ILR given that the reasons underlying the rule apply with greater force to those seeking indefinite leave to remain than to those seeking merely limited leave to remain. It makes no sense whatsoever that those seeking ILR pursuant to paragraph 276B of the Immigration Rules should be able to rely upon deception used in a previous application for leave, when those seeking a less permanent status cannot.”
[42]Sixth, the broad meaning of PTS urged on us by the Respondent is consistent with a clear policy objective which is to be found not only in Part 9, but throughout the various routes under the Rules: namely the ability to assess a person’s circumstances against suitability criteria in order to determine whether they should be granted any form of PTS (or permission to enter in the first place). Seventh, Mr Karim’s reliance on paragraph 9.18.1 of Part 9 (the Returning Residents grounds) takes his case no further. He contended that because this provision did specifically refer to “settlement” it indicated that paragraph 9.4.1 would retain utility if his interpretation of PTS was correct. In other words, because “PTS” and “settlement” had been used separately and differently within paragraph 9.18.1, different meanings should be attached to those terms in paragraph 9.4.1. We do not agree. Context is relevant here. Paragraph 9.18.1 falls under Section 3 of Part 9, which itself relates to “Additional grounds for refusal of entry on arrival in the UK”. The provisions under Section 3 have nothing to do with an application for PTS. Beyond that, paragraph 9.18.1 relates to the situation of returning residents who have already been granted settlement and, having been absent from the United Kingdom, wish to re-enter this country. The provision simply reflects what is said in the Immigration (Leave to Enter and Remain) Order 2000, which is referred to in the introductory paragraphs under Part 9.[43]Finally, in the first sentence of the introduction in ALR it is made clear that the routes are for those who have accrued at least 10 years’ continuous lawful residence in the United Kingdom. That is the ‘front door’ to the Appendix, as it were. The third paragraph then makes it clear that ALR provides two routes for applicants:(1) the first can seek “immediate settlement” if they meet “all the requirements” for that status;(2) the second can instead apply for temporary PTS if they meet the suitability and qualifying period and continuous residence requirements, but do not meet the English language or “Knowledge of Life in the UK” requirements. Mr Karim described this difference as amounting to “segregation” within ALR and submitted that the words “PTS” only related to those applying for temporary PTS within what he described as “Part 1” of the Appendix and not to those applying for immediate settlement under “Part 2”, who were treated differently. He submitted that those applicants were not making an application for PTS, thus paragraph 9.4.1 (and by extension all other provisions under Part 9 bar one) did not apply. We acknowledge that the terminology employed in ALR could have been clearer. It might have been better if the temporary route was headed “Temporary permission to stay on the Long Residence route”, with the settlement route being described as “Permanent permission to stay on the Long Residence route”. However, we have concluded that PTS and leave to remain are one and the same: both incorporate limited leave/temporary permission and indefinite leave/permanent permission. Settlement equates to ILR and therefore settlement must also equate to permanent PTS. In our judgment any application for settlement made under ALR should be construed accordingly. Further, we take into account that no clear words state that an application for settlement under ALR is intended to be excluded from the reach of the criminality bar in Part 9. Indeed, everything points in the opposite direction. Paragraph LR 10.1 states in terms that the decision-maker must be satisfied that an Applicant should not be “refused under Part 9”, thereby bringing in the applicability of the general grounds for refusal into a substantive requirement: to similar effect, see paragraph LR 15.1. We also note that under paragraph LR 2.1 (the temporary PTS route) the same requirement to consider Part 9 also applies. This indicates consistency across both routes within ALR.[44]Considering the provisions of ALR in their proper context, both internal and in relation to the Rules as a whole, and having regard to the policy intention of maintaining an ability to refuse applications due to a person’s criminality or other matters, we agree with Mr Biggs’ submission that the separate routes within the Appendix,(1) applicants seeking temporary PTS and(2) those seeking settlement, are simply convenient procedures. Properly understood, they allow for a sensible division between the two categories of applicant without creating inconsistency with the natural and ordinary meaning of the words used when those words are seen in the context of the wider unitary concept of leave. There is no incoherence or absurdity caused by the existence of two routes of application within ALR. In our judgment, there is good sense in adopting that approach. All applicants must first have accrued the requisite 10 years’ continuous lawful residence and that attainment places them in the cohort who are able to pass through the ‘front door’ before deciding whether to apply for immediate settlement or temporary PTS with a view to settlement. The ALR contains specific provision for the granting of different periods of PTS: either 24 months (paragraph LR 7.1); or settlement (paragraph LR 15.1).[45]Mr Karim’s reliance on the Explanatory Memorandum to HC 590 and the Respondent’s Long Residence Guidance does not assist us with the interpretation contended for. The former confirms the introduction of a need for a certain status prior to making an application for settlement and the desire to standardise conditions for those granted temporary PTS. The latter is not of any significance for the purpose of interpreting the Rules. In any event, we were shown nothing in the Guidance which demonstrated a clear intention on the Respondent’s part to exclude applications for settlement under ALR from the remit of Part 9. In fact, page 6 of 17 expressly confirms that suitability requirements under ALR involve a consideration of whether any of the general grounds under Part 9 apply.[46]The final matter to address in respect of the construction issue is the use of the term “should” in paragraph LR 10.1. We reject Mr Karim’s contention that it introduces a discretion to disregard the criminality bar. The natural and ordinary meaning of the term, seen in its context within paragraph LR 10.1, is that it has a mandatory effect. The decision maker “must” be satisfied that the applicant “should” not be refused under Part 9. It may be that use of the word “must” in the first part of the provision inclined the drafter to use “should” instead of “must” again in the latter part, but that does not dissuade us from adopting the mandatory meaning. Once an application for settlement has been made, the decision-maker must first consider whether the validity requirements under paragraphs LR 9.1-9.3 are met. If they are not, the application will be rejected as invalid and not substantively considered. If the application has been validly made, paragraph LR 10.1 requires the decision-maker to address whether any of the general grounds for refusal under Part 9 apply. That is a separate ‘sub-decision’ within the process as a whole. If, as a result of that ‘sub-decision’, no such grounds apply, paragraph LR 10.1 presents no obstacle to the applicant. If a mandatory ground of refusal is found to apply (i.e. the corollary of determining whether the applicant “should not be refused under Part 9”), the application will be – must be - refused on suitability grounds pursuant to paragraph LR 15.7. In other words, the question of whether the applicant is to be refused has already been answered by the ‘sub-decision’ made in respect of the application of Part 9. Mr Karim’s submission would result in consequences which we conclude could never have been intended. To read “should” as denoting a discretion to disregard the criminality bar, would in effect mean that an applicable mandatory ground for refusal under Part 9 had to be treated as if it were discretionary when considering paragraph LR 10.1. That would lack coherence within the structure of the Rules and we do not consider that it was the objective intention of the provisions. In so far as discretion plays any part in the decision-making process, it falls to be addressed only where the ground of refusal under Part 9 is itself discretionary in nature.[47]It follows from our conclusions above that the Applicant, to whom the criminality bar for refusal under paragraph 9.4.1(a) of Part 9 of the Rules applied, properly had his application for settlement refused under paragraph LR 15.7 of ALR.

Summary of conclusions on the construction of paragraph 9.4.1 and ALR

[48]In our judgment:(a) Leave to remain incorporates limited leave to remain and indefinite leave to remain;(b) Indefinite leave to remain equates to settlement;(c) Permission to stay has the same meaning as leave to remain and incorporates limited leave to remain, indefinite leave to remain and settlement;(d) Permission to stay therefore incorporates temporary (limited) permission to stay and permanent (indefinite) permission to stay;(e) There is a unitary concept of leave which encompasses limited leave to remain, indefinite leave to remain/settlement, temporary permission to stay, and permanent permission to stay;(f) An application for settlement under Appendix Long Residence is an application for permanent permission to stay;(g) Paragraph 9.4.1 of Part 9 of the Immigration Rules and Part 9 generally applies to an application for settlement under Appendix Long Residence;(h) If a decision-maker has concluded that one or more of the grounds for refusal under Part 9 of the Immigration Rules (whether mandatory or discretionary) applies, an application for settlement under Appendix Long Residence will not satisfy the suitability requirements and will be refused under paragraph 15.7.

Discretionary PTS/ILR/settlement

[49]The central focus of the Applicant’s submissions on the discretion issue rested on the claimed applicability of the Criminality Guidance and the absence of any consideration by the Respondent. The Respondent submitted that the appropriate document was the LOTR Guidance and that it had, at least as a matter of substance, been rationally applied to the Applicant’s circumstances.[50]The discretion issue is relevant in respect of the Respondent’s consideration of the application for settlement outside of the Rules. As we have seen, paragraph 9.4.1 of Part 9 of the Rules constitutes a mandatory ground for refusal. That, combined with our conclusion on how paragraph LR 10.1 of ALR interacts with Part 9, means that where, as in this case, the ground applies there is no room for discretion within the Rules. This is a good indication that the LOTR guidance was the appropriate document.[51]The stated scope of the LOTR Guidance, as set out at page 3 of 13:
“This guidance tells you about the when it may be appropriate to exercise discretion to grant leave outside the Immigration Rules (LOTR) on the basis of compelling compassionate grounds (other than family and private life, medical, asylum or protection grounds). This guidance applies to decision makers considering entry clearance, leave to remain and indefinite leave to remain applications.” [Emphasis added]
[52]Thus, we consider that the Applicant’s application fell within the general scope of the LOTR Guidance.[53]The fact that the Applicant already had LLTR on Article 8 grounds does not preclude the applicability of the LOTR Guidance in relation to his settlement application. A passage relied on by Mr Karim at page 5 of 13 reads as follows:
“LOTR on compelling compassionate grounds may be granted where the decision maker decides that the specific circumstances of the case includes exceptional circumstances. These circumstances will mean that a refusal would result in unjustifiably harsh consequences for the applicant or their family, but which do not render refusal a breach of ECHR Article 8, Article 3, refugee convention or other obligations.” [Emphasis added]
[54]The Respondent’s grant of LLTR on Article 8 grounds pre-dated the refusal of the settlement application. That refusal was clearly not one which resulted in a breach of Article 8 rights because these were protected by the extant LLTR. Therefore, in our judgment the “exceptional circumstances” test was in principle applicable to the Applicant’s case.[55]We reject Mr Karim’s submission that the LOTR Guidance only applies to individuals who are not already on a route to settlement; i.e. those who have not already accrued 10 years’ continuous lawful residence. The wording of the guidance does not support that contention and, it expressly covers applications for ILR. There may be a variety of situations in which an individual who has accrued the necessary 10 years, falls foul of Part 9 of the Rules and nonetheless seeks an exercise of discretion. It would make little sense to restrict the application of the guidance in the manner suggested by Mr Karim and we are not persuaded that this was ever the Respondent’s intention.[56]We conclude that two aspects of the Criminality Guidance on which Mr Karim placed significant reliance did not in fact apply to the Applicant. It was submitted that the following passage at page 11 of 34 of the guidance was a relevant consideration which the Respondent overlooked:
“Where a person has been convicted of an offence and sentenced to a period of imprisonment of at least 12 months but less than 4 years you must refuse their application unless 10 years have passed since the end of their sentence. If they are applying for settlement you must refuse a person with a sentence in this category unless 15 years have passed since the end of the sentence…”
[57]However, as is clear from the section heading at page 9 of 34, that part of the guidance only applied to applications made before 9am on 1 December 2020. The Applicant’s settlement application had been made on 7 September 2024. Thus, reliance on the passage of time since the end of the custodial sentence was misplaced.[58]The other inapplicable aspect of the Criminality Guidance related to the length of the Applicant’s custodial sentence. At page 16 of 34, under the heading “Custodial sentences”, one finds the following:
“Where a person has a custodial sentence and is in the UK, they may meet the threshold for deportation. You must refer the case to FNO Returns Command for them to consider whether to pursue deportation. Sentences of 12 months or more Where a person has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of at least 12 months or more you must refuse their application. Sentences of less than 12 months Where a person has been convicted of an offence in the UK or overseas for which they have received a custodial sentence of 12 months or less you may exercise discretion in deciding whether to refuse their application (apart from visitors and those seeking entry for less than 6 months). You must consider the individual circumstances of the case; what may be appropriate for one case will not be appropriate for another. The following, non-exhaustive, list of factors should be considered when assessing whether it is appropriate to exercise discretion: • whether the person already has permission • whether the person is making a first-time application • if the person already has permission, did they start offending soon after they arrived in the UK? • there is more than one instance of criminality and / or offending so that refusal is appropriate on the grounds of persistent offending, or the person should be referred for deportation • whether the sentence is very short, such as detention at court under Section 135 of the Magistrates’ Courts Act 1980 for a single day • the length of time passed since the offence was committed, including whether any other entry clearance or permission has been granted since the offence • the relevance of the offence to the application • any ties the person has to the UK” [Emphasis added]
Sentences of 12 months or more

Sentences of less than 12 months

[59]Mr Karim submitted that a number of the factors listed applied to the Applicant and should have been taken into account by the Respondent. We note that the first passage of the guidance quoted above refers to the “threshold for deportation” which might imply that those which follow relate only to a consideration of that particular course of action: the present case does not of course concern deportation. However, the Respondent has not taken the point and we leave it to one side. It is the wording of the passages under the sub-headings “Sentences of 12 months or more” and “Sentences of less than 12 months” which are of importance here. It is clear from the first of these passages that the application of a person who has received a custodial sentence of “at least 12 months” must be refused. That is consistent with paragraph 9.4.1(a) of Part 9 of the Rules and its mandatory nature. The second sub-heading is also clear enough: the subsequent guidance, including the non-exhaustive list of relevant factors, applies to those who have received a custodial sentence of “less than 12 months”. A difficulty arises in the first sentence of the passage which immediately follows. Inconsistently with the sub-heading, it is said that discretion may be exercised in respect of a person who has received a custodial sentence of “12 months or less”. The inconsistency is not only internal, but it also conflicts with paragraph 9.4.1(a), which mandates that a custodial sentence of 12 months will result in the refusal of an application.[60]The correct meaning of guidance published by the Respondent is a matter for us to determine by reference to the language used and, importantly, its proper context: see, for example, Tesco Stores Limited v Dundee City Council [2012] UKSC 13; [2012] 2 P&CR 9, at [18], endorsing R (Raissi) v SSHD [2008] EWCA Civ 72; [2008] QB 836. We acknowledge that published guidance can be more generous than the Rules: HM and Others (PBS - legitimate expectation - paragraph 245ZX(1)) Malawi [2010] UKUT 446 (IAC). However, the adoption of such a position would require clarity of expression or at least the absence of such obvious inconsistencies within the guidance itself and as between the guidance and the Rules. Further, we regard the conclusions of HHJ Walden-Smith in R (Andrews) v SSHD [2025] EWHC 64 (Admin) as correct. Having reviewed a number of authorities, at [24] and [25] she concluded that where there was a conflict between the interpretation of the Rules and guidance, the former takes precedence. In the present case, an aspect of the guidance is inconsistent with the relevant Rule. Seen in its proper context within the Criminality Guidance and with reference to subservience to the Rules, we are satisfied that the inconsistency is the result of nothing more than an error in drafting. It is appropriate for us to correct that error by interpreting the relevant passage of the Criminality Guidance as reading “a custodial sentence of less than 12 months” instead of “a custodial sentence of 12 months or less”. That provides for a coherent approach and one which does not contravene the hierarchical structure of ‘Rules first, guidance second’.[61]On this interpretation, the non-exhaustive list of factors contained under the sub-heading “Sentences of less than 12 months” did not apply to the Applicant’s circumstances and the Respondent did not commit a public law error by failing to apply the Criminality Guidance.[62]Overall, we are satisfied that it was the LOTR Guidance which applied to the Applicant’s circumstances. That guidance sets a high threshold for the exercise of discretion where an individual cannot satisfy the relevant Rules, in particular where they have applied for ILR/permanent PTS. The “exceptional circumstances” terminology employed in the passage quoted at [89], above, is expanded on at page 6 of 13:
“Indefinite leave to enter or remain can be granted outside the rules where the grounds are so exceptional that they warrant it. Such cases are likely to be extremely rare.”
[63]Turning to the refusal decision under challenge, it is apparent to us that the Respondent in fact applied the “exceptional circumstances” test.[64]We now turn to the remaining elements of the discretion issue. We are in no doubt that the Respondent was cognisant of the circumstances surrounding the Applicant’s criminality when considering the exercise of discretion. That history formed the basis of the refusal under ALR and we are not prepared to find that it had simply been left out of account for the purposes of assessing whether exceptional circumstances existed. There was clearly no requirement on the Respondent’s part to seek further representations before exercising her discretion. The onus was on the Applicant to provide details of any factors relied on, as is made abundantly clear at page 11 of 13 of the LOTR Guidance. Beyond that, the line of authorities flowing from the ‘Tameside’ principle on which Mr Biggs relied quite clearly demonstrates that the Respondent committed no public law error by failing to make further enquiries of the Applicant’s circumstances prior to making a decision.[65]The Applicant relies on the fact that he has been granted LLTR on several occasions in the past despite his 2006 conviction and that this should have been specifically taken into account when exercising discretion. Put another way, the Applicant was not refused LLTR on suitability grounds in the past and any reliance thereon in the decision under challenge was unfair. We note that the previous grants of LLTR appear to have been made under Appendix FM to the Rules (nothing before us demonstrated that this was not the case). Section 1 of Part 9 of the Rules confirms that its provisions do not generally apply to Appendix FM, save for certain grounds which are not relevant in this case. Therefore, paragraph 9.4.1(a) would not have featured in the consideration of the previous applications and that answers the Applicant’s point on unfairness.[66]When making his settlement application the Applicant failed to disclose the fact of his 2006 conviction and sentence. In answer to the question whether he had ever had a criminal conviction in the United Kingdom or elsewhere, the Applicant answered, “No, I have never had any of these”. The covering letter made no mention of the 2006 conviction either. Having considered the matter, both Counsel confirmed that section 56A of the UK Borders Act 2007 disapplied relevant provisions of the Rehabilitation of Offenders Act 1974, which would otherwise have rendered the Applicant’s conviction spent. Thus, the conviction should have been disclosed in the settlement application. The Respondent could have, but has not, relied on the non-disclosure as a ground of refusal under paragraph 9.7.1(b) of Part 9 of the Rules. In light of that, we do not hold the omission against the Applicant, although it clearly does his case no favours.[67]We consider it to be significant that there was a distinct lack of evidence put forward by the Applicant in support of a favourable exercise of discretion. The covering letter included virtually nothing of substance: a brief immigration history is set out (with an erroneous date of entry to the United Kingdom), followed by an assertion that ALR was satisfied, that the Applicant had family life with his two British children, and that he had established a private life in this country over the course of over 18 years. There was no witness statement from the Applicant, no evidence that the refusal of settlement would cause significant detriment to him or his children, no reference to any guidance, and certainly no list of factors which had been highlighted by Mr Karim during the course of his submissions. All-told, Mr Biggs’ description of the materials as being “sparse” was perhaps somewhat generous.[68]Having regard to the above, in our judgment, the Respondent’s conclusion that the Applicant’s circumstances were not exceptional fell well within the range of reasonable responses open to her.[69]In light of that conclusion, we need not address the “in any event” argument based on section 15(5A) of the Tribunals, Courts and Enforcement Act 2007 in conjunction with section 31(2A) of the Senior Courts Act 1981, as amended.

Ground 9

[70]We are satisfied that the Respondent’s application of the Rules to the Applicant’s case was neither inflexible nor unreasonable. On the correct construction of PTS and its role in the interaction between ALR and Part 9 of the Rules, the Rules-based outcome was clearly open to the Respondent. It was a hard-edged decision based on hard-edged Rules.[71]Contrary to the contention that the Applicant will perpetually be refused settlement, it is open to him to make another application in the future, supported by whatever evidence thought to be appropriate.[72]We conclude that Article 8 was not engaged by the refusal of the settlement application. On a general level, we note the observations of Underhill LJ in MS (India) v SSHD [2017] EWCA Civ 1190, at [124]:
“… I do not believe that the refusal of ILR as such engages article 8 at all.”
Turning from the general to the specific, the Applicant already had leave on Article 8 grounds and was not required to leave the United Kingdom; the decision did not interfere with his right to work and carry on a business; nor did it have any bearing on his ability to maintain contact with his children; and there are no health-related issues in play here. On the facts, Respondent’s decision did not sufficiently interfere with the Applicant’s family and/or private life.[73]Even if there had been an interference which engaged Article 8, the Respondent’s decision was plainly not disproportionate. In addition to the points made in the preceding paragraph, the Applicant could not meet the Rules, a factor which would attract considerable weight against him: R (Agyarko and Ikuga) v SSHD [2017] UKSC 11; [2017] 1 WLR 823, at [46]-[47]. The Applicant’s status has always been precarious, albeit that this factor may have somewhat reduced in significance over the course of time. Beyond maintaining effective immigration control, there is an obvious public interest element relating to those who have committed relatively serious criminal offences. Summary[74]We conclude that this application for judicial review fails on all grounds.

Disposal

[75]We invite the parties to provide a draft order reflecting the terms of this judgment and to include any ancillary matters. END