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Home Office can refuse settlement to those on long-term Discretionary Leave
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Home Office can refuse settlement to those on long-term Discretionary Leave

Where policy guidance says that indefinite leave to remain (ILR) should “normally” be granted after six years of Discretionary Leave, can the Home Office ever depart from this policy? The Upper Tribunal judgment in R (Ellis) v Secretary of State for the Home Department (discretionary leave policy; supplementary reasons) [2020] UKUT 82 says yes — so long as adequate reasons are given.

Two stints of Discretionary Leave

Mr Ellis is a citizen of Jamaica with two British children. He first entered the UK as a visitor in 2000, married a settled person and applied for leave to remain on that basis in 2003. This application was refused seven years later, which is somehow not the longest anyone has ever waited for a Home Office decision but nevertheless an absurdly long wait.

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Mr Ellis was sentenced to 12 months’ imprisonment for obtaining property by deception in March 2010. He then applied for leave to remain and was granted three years of Discretionary Leave in September 2011, later extended by another three years. During his second stint of Discretionary Leave, he was sentenced to four months’ imprisonment for perverting the course of justice.

Having completed six years of Discretionary Leave, Mr Ellis applied for ILR in March 2019. The Home Office refused, but but granted another three years of Discretionary Leave. Mr Ellis challenged that decision by way of judicial review.

The supplementary refusal letter

Following a grant of permission to proceed, the Home Office sent Mr Ellis a further letter which was said to “supplement” the earlier refusal letter. This letter repeated many of the same points as the first, but drew a clearer link between the decision to grant only limited leave and Mr Ellis’s criminality.

It said: “we are prepared to exercise discretion to grant more limited leave because your circumstances have not changed since the first grant of Discretionary Leave, but we are not prepared to exercise discretion to grant settlement considering the criminality that is detailed above”.

Home Office policy on Discretionary Leave

The relevant section of the Discretionary Leave guidance states:

Those granted leave under the DL policy in force before 9 July 2012 will… normally… be eligible to apply for settlement after accruing 6 years’ continuous DL.

Mr Ellis accordingly argued that the Home Office had given insufficient reasons for departing from this policy. He added that the supplementary letter should not be allowed into evidence as it introduced a new argument, but even if admissible it was also inadequately reasoned.

After an interesting overview of the case law on the interpretation of policy guidance, Mr Justice Chamberlain provides this eminently quotable finding (paragraph 35):

Once a policy such as the DL Policy is published, it is difficult to see why the principles applicable to its interpretation should differ according to whether it is directed internally to decision-makers or intended to be relied upon by the public. 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.

So the Secretary of State cannot interpret her policy guidance any way she wishes in any given case, subject only to a review on Wednesbury grounds of unreasonableness. The interpretation of published policy guidance is to be decided by the courts by reference to how a “reasonable and literate” person would understand the policy.

Perhaps unsurprisingly, the Upper Tribunal found that a reasonable, literate person would understand the relevant bit of the Discretionary Leave policy to mean that although ILR is normally granted after six years of Discretionary Leave in the pre-2012 route, caseworkers can depart from this policy where the circumstances merit it, such as in the case of criminality. 

Upper Tribunal findings

The tribunal agreed that the original decision letter had not given adequate reasons for departing from what was “normal”. It did not address:

… the separate and quite different question arising under §10.1 of the DL Policy: whether there are reasons for departing from the ‘normal’ position that a person granted DL prior to 9 July 2012 would be eligible for ILR after 6 years’ continuous DL. Indeed, it is not clear that the decision-maker directed his or her mind to the duration of leave at all.

Having established that the initial letter was deficient, Chamberlain J turned to the supplementary letter. This he found to be a “fresh decision”. Although it did not cure the defects in the original, it was legally adequate as a refusal in its own right:

In all the circumstances, I consider that the letter of 25 November 2019, read together with the new Annex A, gave a legally adequate reason for concluding that Mr Ellis’s case should not be treated as a ‘normal’ one: namely, his criminality.

So Mr Ellis won a pyrrhic victory: although the initial decision was found to be unlawful as a result of a failure to give adequate reasons, “it has been superseded by a fresh decision with the same outcome”. That second decision was lawful and the claim for judicial review dismissed.

Conclusion

This decision is fairly uncontroversial and does not represents any kind of radical shift in the approach to the DL policy. It does, however, highlight the need to consider the general grounds for refusal under the Immigration Rules, even where an application is made outside the Rules, and make representations where necessary.

The official headnote

(1) Extra-statutory immigration policies should be interpreted in accordance with the objective meaning that a reasonable and literate person would ascribe to them.

(2) The Home Office discretionary leave policy should not be read 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 indefinite leave to remain after 6 years’ continuous discretionary leave 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. 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.

(3) There are four categories of cases in which supplementary reasons, supplied in response to an actual or threatened legal challenge, may be relied upon: first, to ‘elucidate’ reasons previously given; secondly, to constitute a ‘fresh decision’; thirdly, to consider material not before the decision-maker at the time when the earlier decision was taken; and fourthly, to acknowledge that the original decision was flawed but simultaneously make a new one to the same effect.

(4) Even if the original decision is held to be unlawful, relief must be withheld pursuant to s.31(2A) of the Senior Courts Act 1981 if a further decision shows that it is highly likely that the outcome would not have been substantially different, unless the proviso in s.31(2B) applies.

Alex Piletska

Alex Piletska is a trainee solicitor at Turpin & Miller, an Oxford-based specialist immigration firm where she has worked since 2017. Alex undertakes a wide range of immigration work, including family migration, Points Based System applications, appeals and Judicial Review. You can follow her on Twitter at @alexinlaw.

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