JR/02952/2018
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The decision
IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
JR/2952/2018
Field House,
Breams Buildings
London
EC4A 1WR
29 January 2019
Before
UPPER TRIBUNAL JUDGE GLEESON
Between
brooks
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- - - - - - - -
Mr Darryl Balroop, Counsel, instructed by Callistes Solicitors, appeared on behalf of the Applicant.
Mr Zane Malik instructed by the Government Legal Department appeared on behalf of the Respondent.
- - - - - - - - - - - - -
APPROVED JUDGMENT
- - - - - - - - - - - - -
JUDGE GLEESON : The applicant has been granted permission for judicial review of the respondent's decision of 23 January 2018 refusing her indefinite leave to remain and granting 30 months discretionary leave. The applicant is a Jamaican citizen.
2. The applicant came to the United Kingdom as a visitor in December 1989 and overstayed, using false identity documents in the name of Sarah Jane Lee. Two children were born to her in December 1999 and December 2004. On 14 May 2003, her deception having come to light, she was convicted of false accounting, perjury and facilitating an overstayer, and was sentenced to 13 months imprisonment with a recommendation for deportation. Her sentence ended on 14 June 2004.
3. On 14 May 2003, the respondent made a decision to deport the applicant to Jamaica in the light of her criminal record. The applicant appealed unsuccessfully and was appeal rights exhausted on 24 February 2005.
4. On 31 March 2005, the applicant made an application for leave to remain outside the Immigration Rules, for herself and her two children. The outcome of that application is not clear to me, but the applicant did not embark and remained in the United Kingdom.
5. The applicant made an Article 8 ECHR application on 28 November 2011 and was granted discretionary leave until 28 November 2014. On 1 June 2013, the applicant had another child. On 14 October 2014, she applied for leave to remain but was granted further discretionary leave to 29 January 2018.
6. On 23 January 2018, although it was not 15 years since the end of her sentence, as paragraph 322(1C)(ii) requires, the applicant applied for indefinite leave to remain. The respondent granted her further discretionary leave for 30 months with reference to paragraph 276ADE(1) and exceptional circumstances. It was accepted that but for her criminal history, the applicant met the requirements of paragraph D-LTRPT1.2 with reference to GEN3.2.
7. That is the decision under challenge.
8. A judicial review application was issued not promptly but within the 3-month long-stop period, on 24 April 2018. The core of the applicant's argument arises out of the respondent's 2015 Asylum Policy Instruction on Discretionary Leave at 10.1 which makes transitional provisions for applicants granted discretionary leave before 9 July 2012.
9. The applicant argued that paragraph 322 of the Immigration Rules HC 395 (as amended) could not be used to deny her indefinite leave to remain; that she had a legitimate expectation that indefinite leave to remain would be granted under the transitional provisions in the respondent's Asylum Policy Instruction on Discretionary Leave published on 18 August 2015; and/or that she should have been granted discretionary leave for 36 months, not 30 months. The applicant seeks an order requiring the respondent to grant her indefinite leave to remain, or discretionary leave for 36 months.
Permission to seek judicial review
10. On 22 October 2018 permission was granted on oral renewal by Upper Tribunal Judge Frances. It was the appellant's pleaded case that paragraph 322(1C) was inapplicable as all discretionary leave grants to this applicant had been made outside the Rules and under the respondent's transitional policy.
11. When granting permission, Upper Tribunal Judge Frances did so on rationality grounds. She considered that the decision was arguably irrational and/or unlawful, noting that on 28 November 2011, when granting discretionary leave, the respondent had not relied on the applicant's imprisonment for 13 months in April 2003.
12. It was arguable that the policy in force prior to 9 July 2012 remained applicable under the transitional arrangements and that the applicant continued to qualify for further leave to remain on the same basis as her original grant of discretionary leave. Further discretionary leave was granted on 29 January 2015, for 36 months, and Judge Frances considered it arguable that paragraph 322(1C) was not applicable, notwithstanding the decision of the Court of Appeal in Edgehill and another v Secretary of State for the Home Department [2014] EWCA Civ 402.
Applicant's case
13. At the hearing, I heard oral submissions from Mr Balroop for the applicant against his very helpful skeleton argument. Mr Balroop's case is that the treatment of this applicant in terms of the pre-July 2012 discretionary leave policy is outside the 'normal' range and that she should therefore have been dealt with under the 'old' policy until settlement, not under the current version of the policy. The wording of the earlier policy is more rigid and more helpful to the applicant, using 'they should grant' instead of 'will normally'.
14. The applicant's circumstances had not changed since her last successful application and the respondent's departure from her earlier policy was irrational and unlawful. Under the earlier policy, the applicant was entitled to a grant of 3 years (36 months) not 30 months as the policies now provided.
15. In his oral argument, Mr Balroop made the same points and said that it would suffice for the Upper Tribunal to quash the decision. He accepted that if paragraph 322(1C) applied, the applicant could not succeed.
Respondent's case
16. The respondent in her detailed grounds of defence relied on R (Alladin and Wadhwa) v Secretary of State for the Home Department [2014] EWCA Civ 1334 to the effect that it is a matter for the respondent what leave is to be granted and for how long; on TN (Afghanistan) v Secretary of State for the Home Department [2015] UKSC 40 as authority for the Upper Tribunal not having power to direct the Secretary of State to grant indefinite leave to remain, arguing that by analogy, the Tribunal also does not have power to direct the respondent to grant a longer period of discretionary leave.
17. The respondent argued that applying paragraph 322(1C) of the Immigration Rules, the indefinite leave to remain application was premature as it was not yet 15 years since the end of the applicant's sentence. That date would not be reached until 14 June 2019. Paragraph 322(1C) is mandatory.
18. The respondent argued that 'will normally' allowed for differential treatment in appropriate cases, such as those where there had been criminality. The respondent had made no unambiguous representation, promise or assurance devoid of any other relevant qualification that the appellant would be granted indefinite leave to remain on accrual of 6 years' discretionary leave, despite her criminal sentence of 13 months in 2003/4.
19. The Secretary of State was entitled to change her policy when she considered it to be in the public interest to do so, and paragraph 322(1C) was such a change of policy. As regards the length of leave given, the respondent relied on paragraph 276BE of the Rules which referred to the grant of limited leave to remain 'for a period not exceeding 30 months' and paragraph D-LTRPT.1.2 had the same provision. The grant of 30 months was lawful.
20. The respondent submitted that there was no material public law error in her decision and that the Upper Tribunal should not interfere with her decision.
21. Mr Malik in oral argument for the respondent noted that there were three issues: whether paragraph 322(1C) applied; irrespective of that, whether the discretionary leave policy required the respondent to grant indefinite leave to remain; and in the alternative, whether the applicant should have been given 36 months' discretionary leave rather than 30 months.
22. Mr Malik relied for the proper approach to interpretation of the Rules on Mahad (previously referred to as AM) (Ethiopia) v Entry Clearance Officer [2009] UKSC 16 at [10] in the opinion of Lord Brown JSC, with whom Lord Hope JSC, Lord Rodger JSC, Lord Collins JSC and Lord Kerr JSC agreed:
"10. There is really no dispute about the proper approach to the construction of the Rules. As Lord Hoffmann said in Odelola v Secretary of State for the Home Department [2009] 1 WLR 1230, 1233 (paragraph 4):
"Like any other question of construction, this [whether a rule change applies to all undetermined applications or only to subsequent applications] depends upon the language of the rule, construed against the relevant background. That involves a consideration of the immigration rules as a whole and the function which they serve in the administration of immigration policy."
That is entirely consistent with what Buxton LJ (collecting together a number of dicta from past cases concerning the status of the rules) had said in Odelola in the Court of Appeal ([2009] 1 WLR 126) and, indeed, with what Laws LJ said (before the House of Lords decision in Odelola) in the present case. Essentially it comes to this. The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy. The respondent's counsel readily accepted that what she meant in her written case by the proposition "the question of interpretation is . . . what the Secretary of State intended his policy to be" was that the court's task is to discover from the words used in the Rules what the Secretary of State must be taken to have intended. After all, under section 3(2) of the Immigration Act 1971, the Secretary of State has to lay the Rules before Parliament which then has the opportunity to disapprove them. True, as I observed in Odelola (para 33): "the question is what the Secretary of State intended. The rules are her rules." But that intention is to be discerned objectively from the language used, not divined by reference to supposed policy considerations. ?"
23. Mr Malik argued that paragraph 322 was not limited to leave to remain under the Rules. If Parliament had intended to do that, as they had elsewhere in the Rules, they could have said so expressly, but they did not do so. Paragraph 322 applied to applications within and outwith the Rules, including discretionary leave and the application could not succeed because the applicant could not meet paragraph 322(1C)'s 15-year requirement. The respondent was required to deny indefinite leave to remain and Mr Malik asked me to dismiss the application.
24. In reply, Mr Balroop observed that there was no mention of Part 9 in the pre-2012 version of the policy and that the 2015 policy was not applicable to the applicant. The applicant's criminality had already been taken into account in the previous decisions. The transitional provisions in the 2015 guidance were quite clear. The Secretary of State had referred to Part 9 of the Immigration Rules both in the separate provisions for the family members of former Gurkha soldiers, and in the discretionary leave policy. The 2015 transitional provisions do not indicate that the previous policy was superseded, and the correct view was that the earlier policy still applied.
25. If there were any ambiguity then he relied on Pokhriyal v The Secretary of State for the Home Department [2013] EWCA Civ 1568 at [42] in the judgment of Lord Justice Jackson, with whom Lord Justice Longmore and Lord Justice Vos agreed,:
"42. If there is ambiguity in Immigration Rules and the Secretary of State publicly declares that he/she will adopt the more lenient interpretation, then tribunals and courts may hold the Secretary of State to that assurance. This is exemplified by the Court of Appeal's decision in Adedoyin v Secretary of State for the Home Department [2010] EWCA Civ 773; [2011] 1 WLR 564. The relevant rule in that case provided that leave to enter would be refused where the applicant had made "false" representations. The relevant minister said in Parliament that "false" in this context meant not merely incorrect, but deliberately false. There were other public statements by Government officials to similar effect. The Court of Appeal construed the rule in accordance with those assurances. Rix LJ gave the leading judgment, with which Longmore and Jacob LJJ agreed. At paragraph 70 Rix LJ said that in a situation of genuine ambiguity, it was legitimate to derive assistance from the executive's formally published guidance, including IDI's."
26. Mr Balroop submitted that the effect of that decision was that where there was ambiguity, the respondent should be held to the more lenient interpretation. The revised policy was there because of the introduction of Appendix FM: the earlier policy should be applied unless there was a good reason not to do so.
Analysis
27. It is common ground that this application can succeed only if paragraph 322(1C) does not apply to the applicant's circumstances. Paragraph 322(1C) of the Immigration Rules is in mandatory terms, as follows:
"322. In addition to the grounds for refusal of extension of stay set out in Parts 2-8 of these Rules, the following provisions apply in relation to the refusal of an application for leave to remain, variation of leave to enter or remain or, where appropriate, the curtailment of leave, ?
Grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom are to be refused ?
(1C) where the person is seeking indefinite leave to enter or remain:?
(ii) they have been convicted of an offence for which they have been sentenced to imprisonment for at least 12 months but less than 4 years, unless a period of 15 years has passed since the end of the sentence; "
28. The first point is that this is not a Pokhriyal situation: there is no ambiguity in the Rules themselves. Mr Balroop has sought to persuade the Upper Tribunal that there is ambiguity in the 2015 guidance and its link to the pre-2012 guidance, but that does not engage Pokhriyal, which is to the opposite effect, that where there is doubt about the Rules, the respondent's published policy may be used to assist a Court or Tribunal in interpreting the Rules.
29. Nor is Mr Balroop's reliance by way of analogy on the Gurkha family policy relevant to this applicant. The purpose of the Gurkha provisions in the Rules is entirely different from the purpose of the criminality thresholds: the first aims to right a historic wrong, whereas the criminality thresholds, in terms, seek to reinforce Home Office policy to remove criminals from the United Kingdom. The application of differential thresholds is therefore unsurprising, and no useful analogy can be drawn.
30. Mr Balroop in effect seeks to treat the pre-2012 version of the discretionary leave policy as binding on the 'active review' which is undertaken by the respondent's caseworkers on any renewal. He does so in reliance on the Section 10 Transitional Arrangements in the 2015 policy. However, the transitional provisions cross-refer to the exclusion and criminality provisions at 3.6 of the 2015 policy:
"3.6. Exclusion and criminality
In all asylum and non-asylum cases, caseworkers must consider the impact of an individual's criminal history before granting any leave. ?Where an individual does not fall within the restricted leave policy (for example, where they are not excluded under Article 1F or the criminal sentence was less than 2 years' imprisonment) caseworkers must consider the impact of any criminal history before granting discretionary leave, having regard as appropriate to Part 9 (General Grounds for Refusal) and, where an individual is not liability to deportation, paragraph 353B(i) of the Immigration Rules. Criminals or extremists should not normally benefit from leave on a discretionary basis under this policy because it is a Home Office priority to remove them from the United Kingdom.
In cases where there are exceptional reasons for granting discretionary leave to someone with a criminal history who does not fall within the restricted leave policy, the duration of leave to be granted, up to 30 months, will depend on the individual circumstances of the case. ?"
31. The transitional provisions are quite clearly intended to be governed by the criminality provisions:
"Section 10: Transitional Arrangements
All decisions made on Discretionary Leave on or after 9 July 2012 will be subject to the criteria set out in this guidance. ?Those granted DL before 9 July 2012 may apply to extend that leave when their period of DL expires. All such applications, including settlement applications under the transitional arrangements, must be made on the appropriate application form no more than 28 days before their existing leave expires. Caseworkers must apply the following guidance:
10.1 Applicants granted DL before 9 July 2012
Those granted leave under the DL policy in force before 9 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 (or where appropriate a combination of DL and LOTR, see section 8 above)), unless at the date of decision they fall within the restricted leave policy.
Caseworkers 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' discretionary leave should normally be granted. Caseworkers must consider whether there are any circumstances that may warrant departure from the standard period of leave. ...
Where an individual has accrued 10 years' lawful residence under the discretionary leave policy, and applies for settlement, caseworkers must consider Part 9 of the Immigration Rules and in particular, paragraph 322(1C)." [Emphasis added]
32. Mr Malik's question relating to the applicability of paragraph 322(1C) must therefore be answered in the affirmative and that is dispositive of this application. The answer to the second question is not relevant, but for the avoidance of doubt, both versions of the policy have discretion at their heart and neither requires the respondent to grant indefinite leave to remain, particularly where there is criminality. In answer to the third question, the 2015 policy in the Criminality section plainly states that the maximum period which can be given is 30 months. The respondent has moved away from the 3 years which was available under the pre-2012 version of the policy and there is no sufficiently strong link between the 2015 policy and the earlier policy such that it would override the provisions in the 2015 policy as to the length of discretionary leave to be given.
33. The natural meaning of the language, both in the Rules and in the policy, does not amount to an undertaking or promise that the applicant's criminal history will not be taken into account in considering the grant of indefinite leave to remain under the 2015 policy and its transitional provisions. In fact, the contrary is plainly the case.
34. The respondent's decision on 23 January 2018 to grant discretionary leave for 30 months and refuse to grant indefinite leave to remain was unarguably open to her, on the factual matrix as it then stood. Circumstances have changed since then: on 23 January 2018, the applicant had not reached the 15-year post-sentence date.
35. There has been a regrettable delay in the handing down of this judgment, but in consequence, the applicant is now in a position to apply for settlement even having regard to paragraph 322(1C) because it is now more than 15 years since the end of her sentence on 15 June 2004. That 15-year date was reached on 15 June 2019 and this application has therefore become academic.
36. This judicial review application is dismissed.
37. The appellant will pay the respondent's reasonable costs of these proceedings, to be assessed if not agreed.
38. There is no application for permission to appeal to the Court of Appeal. I have considered for myself whether I should grant permission to appeal. I refuse permission, because I am not satisfied that there is any arguable error of law in the judgment I have given today. ~~~0~~~~
IMMIGRATION AND ASYLUM CHAMBER
JR/2952/2018
Field House,
Breams Buildings
London
EC4A 1WR
29 January 2019
Before
UPPER TRIBUNAL JUDGE GLEESON
Between
brooks
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- - - - - - - -
Mr Darryl Balroop, Counsel, instructed by Callistes Solicitors, appeared on behalf of the Applicant.
Mr Zane Malik instructed by the Government Legal Department appeared on behalf of the Respondent.
- - - - - - - - - - - - -
APPROVED JUDGMENT
- - - - - - - - - - - - -
JUDGE GLEESON : The applicant has been granted permission for judicial review of the respondent's decision of 23 January 2018 refusing her indefinite leave to remain and granting 30 months discretionary leave. The applicant is a Jamaican citizen.
2. The applicant came to the United Kingdom as a visitor in December 1989 and overstayed, using false identity documents in the name of Sarah Jane Lee. Two children were born to her in December 1999 and December 2004. On 14 May 2003, her deception having come to light, she was convicted of false accounting, perjury and facilitating an overstayer, and was sentenced to 13 months imprisonment with a recommendation for deportation. Her sentence ended on 14 June 2004.
3. On 14 May 2003, the respondent made a decision to deport the applicant to Jamaica in the light of her criminal record. The applicant appealed unsuccessfully and was appeal rights exhausted on 24 February 2005.
4. On 31 March 2005, the applicant made an application for leave to remain outside the Immigration Rules, for herself and her two children. The outcome of that application is not clear to me, but the applicant did not embark and remained in the United Kingdom.
5. The applicant made an Article 8 ECHR application on 28 November 2011 and was granted discretionary leave until 28 November 2014. On 1 June 2013, the applicant had another child. On 14 October 2014, she applied for leave to remain but was granted further discretionary leave to 29 January 2018.
6. On 23 January 2018, although it was not 15 years since the end of her sentence, as paragraph 322(1C)(ii) requires, the applicant applied for indefinite leave to remain. The respondent granted her further discretionary leave for 30 months with reference to paragraph 276ADE(1) and exceptional circumstances. It was accepted that but for her criminal history, the applicant met the requirements of paragraph D-LTRPT1.2 with reference to GEN3.2.
7. That is the decision under challenge.
8. A judicial review application was issued not promptly but within the 3-month long-stop period, on 24 April 2018. The core of the applicant's argument arises out of the respondent's 2015 Asylum Policy Instruction on Discretionary Leave at 10.1 which makes transitional provisions for applicants granted discretionary leave before 9 July 2012.
9. The applicant argued that paragraph 322 of the Immigration Rules HC 395 (as amended) could not be used to deny her indefinite leave to remain; that she had a legitimate expectation that indefinite leave to remain would be granted under the transitional provisions in the respondent's Asylum Policy Instruction on Discretionary Leave published on 18 August 2015; and/or that she should have been granted discretionary leave for 36 months, not 30 months. The applicant seeks an order requiring the respondent to grant her indefinite leave to remain, or discretionary leave for 36 months.
Permission to seek judicial review
10. On 22 October 2018 permission was granted on oral renewal by Upper Tribunal Judge Frances. It was the appellant's pleaded case that paragraph 322(1C) was inapplicable as all discretionary leave grants to this applicant had been made outside the Rules and under the respondent's transitional policy.
11. When granting permission, Upper Tribunal Judge Frances did so on rationality grounds. She considered that the decision was arguably irrational and/or unlawful, noting that on 28 November 2011, when granting discretionary leave, the respondent had not relied on the applicant's imprisonment for 13 months in April 2003.
12. It was arguable that the policy in force prior to 9 July 2012 remained applicable under the transitional arrangements and that the applicant continued to qualify for further leave to remain on the same basis as her original grant of discretionary leave. Further discretionary leave was granted on 29 January 2015, for 36 months, and Judge Frances considered it arguable that paragraph 322(1C) was not applicable, notwithstanding the decision of the Court of Appeal in Edgehill and another v Secretary of State for the Home Department [2014] EWCA Civ 402.
Applicant's case
13. At the hearing, I heard oral submissions from Mr Balroop for the applicant against his very helpful skeleton argument. Mr Balroop's case is that the treatment of this applicant in terms of the pre-July 2012 discretionary leave policy is outside the 'normal' range and that she should therefore have been dealt with under the 'old' policy until settlement, not under the current version of the policy. The wording of the earlier policy is more rigid and more helpful to the applicant, using 'they should grant' instead of 'will normally'.
14. The applicant's circumstances had not changed since her last successful application and the respondent's departure from her earlier policy was irrational and unlawful. Under the earlier policy, the applicant was entitled to a grant of 3 years (36 months) not 30 months as the policies now provided.
15. In his oral argument, Mr Balroop made the same points and said that it would suffice for the Upper Tribunal to quash the decision. He accepted that if paragraph 322(1C) applied, the applicant could not succeed.
Respondent's case
16. The respondent in her detailed grounds of defence relied on R (Alladin and Wadhwa) v Secretary of State for the Home Department [2014] EWCA Civ 1334 to the effect that it is a matter for the respondent what leave is to be granted and for how long; on TN (Afghanistan) v Secretary of State for the Home Department [2015] UKSC 40 as authority for the Upper Tribunal not having power to direct the Secretary of State to grant indefinite leave to remain, arguing that by analogy, the Tribunal also does not have power to direct the respondent to grant a longer period of discretionary leave.
17. The respondent argued that applying paragraph 322(1C) of the Immigration Rules, the indefinite leave to remain application was premature as it was not yet 15 years since the end of the applicant's sentence. That date would not be reached until 14 June 2019. Paragraph 322(1C) is mandatory.
18. The respondent argued that 'will normally' allowed for differential treatment in appropriate cases, such as those where there had been criminality. The respondent had made no unambiguous representation, promise or assurance devoid of any other relevant qualification that the appellant would be granted indefinite leave to remain on accrual of 6 years' discretionary leave, despite her criminal sentence of 13 months in 2003/4.
19. The Secretary of State was entitled to change her policy when she considered it to be in the public interest to do so, and paragraph 322(1C) was such a change of policy. As regards the length of leave given, the respondent relied on paragraph 276BE of the Rules which referred to the grant of limited leave to remain 'for a period not exceeding 30 months' and paragraph D-LTRPT.1.2 had the same provision. The grant of 30 months was lawful.
20. The respondent submitted that there was no material public law error in her decision and that the Upper Tribunal should not interfere with her decision.
21. Mr Malik in oral argument for the respondent noted that there were three issues: whether paragraph 322(1C) applied; irrespective of that, whether the discretionary leave policy required the respondent to grant indefinite leave to remain; and in the alternative, whether the applicant should have been given 36 months' discretionary leave rather than 30 months.
22. Mr Malik relied for the proper approach to interpretation of the Rules on Mahad (previously referred to as AM) (Ethiopia) v Entry Clearance Officer [2009] UKSC 16 at [10] in the opinion of Lord Brown JSC, with whom Lord Hope JSC, Lord Rodger JSC, Lord Collins JSC and Lord Kerr JSC agreed:
"10. There is really no dispute about the proper approach to the construction of the Rules. As Lord Hoffmann said in Odelola v Secretary of State for the Home Department [2009] 1 WLR 1230, 1233 (paragraph 4):
"Like any other question of construction, this [whether a rule change applies to all undetermined applications or only to subsequent applications] depends upon the language of the rule, construed against the relevant background. That involves a consideration of the immigration rules as a whole and the function which they serve in the administration of immigration policy."
That is entirely consistent with what Buxton LJ (collecting together a number of dicta from past cases concerning the status of the rules) had said in Odelola in the Court of Appeal ([2009] 1 WLR 126) and, indeed, with what Laws LJ said (before the House of Lords decision in Odelola) in the present case. Essentially it comes to this. The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy. The respondent's counsel readily accepted that what she meant in her written case by the proposition "the question of interpretation is . . . what the Secretary of State intended his policy to be" was that the court's task is to discover from the words used in the Rules what the Secretary of State must be taken to have intended. After all, under section 3(2) of the Immigration Act 1971, the Secretary of State has to lay the Rules before Parliament which then has the opportunity to disapprove them. True, as I observed in Odelola (para 33): "the question is what the Secretary of State intended. The rules are her rules." But that intention is to be discerned objectively from the language used, not divined by reference to supposed policy considerations. ?"
23. Mr Malik argued that paragraph 322 was not limited to leave to remain under the Rules. If Parliament had intended to do that, as they had elsewhere in the Rules, they could have said so expressly, but they did not do so. Paragraph 322 applied to applications within and outwith the Rules, including discretionary leave and the application could not succeed because the applicant could not meet paragraph 322(1C)'s 15-year requirement. The respondent was required to deny indefinite leave to remain and Mr Malik asked me to dismiss the application.
24. In reply, Mr Balroop observed that there was no mention of Part 9 in the pre-2012 version of the policy and that the 2015 policy was not applicable to the applicant. The applicant's criminality had already been taken into account in the previous decisions. The transitional provisions in the 2015 guidance were quite clear. The Secretary of State had referred to Part 9 of the Immigration Rules both in the separate provisions for the family members of former Gurkha soldiers, and in the discretionary leave policy. The 2015 transitional provisions do not indicate that the previous policy was superseded, and the correct view was that the earlier policy still applied.
25. If there were any ambiguity then he relied on Pokhriyal v The Secretary of State for the Home Department [2013] EWCA Civ 1568 at [42] in the judgment of Lord Justice Jackson, with whom Lord Justice Longmore and Lord Justice Vos agreed,:
"42. If there is ambiguity in Immigration Rules and the Secretary of State publicly declares that he/she will adopt the more lenient interpretation, then tribunals and courts may hold the Secretary of State to that assurance. This is exemplified by the Court of Appeal's decision in Adedoyin v Secretary of State for the Home Department [2010] EWCA Civ 773; [2011] 1 WLR 564. The relevant rule in that case provided that leave to enter would be refused where the applicant had made "false" representations. The relevant minister said in Parliament that "false" in this context meant not merely incorrect, but deliberately false. There were other public statements by Government officials to similar effect. The Court of Appeal construed the rule in accordance with those assurances. Rix LJ gave the leading judgment, with which Longmore and Jacob LJJ agreed. At paragraph 70 Rix LJ said that in a situation of genuine ambiguity, it was legitimate to derive assistance from the executive's formally published guidance, including IDI's."
26. Mr Balroop submitted that the effect of that decision was that where there was ambiguity, the respondent should be held to the more lenient interpretation. The revised policy was there because of the introduction of Appendix FM: the earlier policy should be applied unless there was a good reason not to do so.
Analysis
27. It is common ground that this application can succeed only if paragraph 322(1C) does not apply to the applicant's circumstances. Paragraph 322(1C) of the Immigration Rules is in mandatory terms, as follows:
"322. In addition to the grounds for refusal of extension of stay set out in Parts 2-8 of these Rules, the following provisions apply in relation to the refusal of an application for leave to remain, variation of leave to enter or remain or, where appropriate, the curtailment of leave, ?
Grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom are to be refused ?
(1C) where the person is seeking indefinite leave to enter or remain:?
(ii) they have been convicted of an offence for which they have been sentenced to imprisonment for at least 12 months but less than 4 years, unless a period of 15 years has passed since the end of the sentence; "
28. The first point is that this is not a Pokhriyal situation: there is no ambiguity in the Rules themselves. Mr Balroop has sought to persuade the Upper Tribunal that there is ambiguity in the 2015 guidance and its link to the pre-2012 guidance, but that does not engage Pokhriyal, which is to the opposite effect, that where there is doubt about the Rules, the respondent's published policy may be used to assist a Court or Tribunal in interpreting the Rules.
29. Nor is Mr Balroop's reliance by way of analogy on the Gurkha family policy relevant to this applicant. The purpose of the Gurkha provisions in the Rules is entirely different from the purpose of the criminality thresholds: the first aims to right a historic wrong, whereas the criminality thresholds, in terms, seek to reinforce Home Office policy to remove criminals from the United Kingdom. The application of differential thresholds is therefore unsurprising, and no useful analogy can be drawn.
30. Mr Balroop in effect seeks to treat the pre-2012 version of the discretionary leave policy as binding on the 'active review' which is undertaken by the respondent's caseworkers on any renewal. He does so in reliance on the Section 10 Transitional Arrangements in the 2015 policy. However, the transitional provisions cross-refer to the exclusion and criminality provisions at 3.6 of the 2015 policy:
"3.6. Exclusion and criminality
In all asylum and non-asylum cases, caseworkers must consider the impact of an individual's criminal history before granting any leave. ?Where an individual does not fall within the restricted leave policy (for example, where they are not excluded under Article 1F or the criminal sentence was less than 2 years' imprisonment) caseworkers must consider the impact of any criminal history before granting discretionary leave, having regard as appropriate to Part 9 (General Grounds for Refusal) and, where an individual is not liability to deportation, paragraph 353B(i) of the Immigration Rules. Criminals or extremists should not normally benefit from leave on a discretionary basis under this policy because it is a Home Office priority to remove them from the United Kingdom.
In cases where there are exceptional reasons for granting discretionary leave to someone with a criminal history who does not fall within the restricted leave policy, the duration of leave to be granted, up to 30 months, will depend on the individual circumstances of the case. ?"
31. The transitional provisions are quite clearly intended to be governed by the criminality provisions:
"Section 10: Transitional Arrangements
All decisions made on Discretionary Leave on or after 9 July 2012 will be subject to the criteria set out in this guidance. ?Those granted DL before 9 July 2012 may apply to extend that leave when their period of DL expires. All such applications, including settlement applications under the transitional arrangements, must be made on the appropriate application form no more than 28 days before their existing leave expires. Caseworkers must apply the following guidance:
10.1 Applicants granted DL before 9 July 2012
Those granted leave under the DL policy in force before 9 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 (or where appropriate a combination of DL and LOTR, see section 8 above)), unless at the date of decision they fall within the restricted leave policy.
Caseworkers 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' discretionary leave should normally be granted. Caseworkers must consider whether there are any circumstances that may warrant departure from the standard period of leave. ...
Where an individual has accrued 10 years' lawful residence under the discretionary leave policy, and applies for settlement, caseworkers must consider Part 9 of the Immigration Rules and in particular, paragraph 322(1C)." [Emphasis added]
32. Mr Malik's question relating to the applicability of paragraph 322(1C) must therefore be answered in the affirmative and that is dispositive of this application. The answer to the second question is not relevant, but for the avoidance of doubt, both versions of the policy have discretion at their heart and neither requires the respondent to grant indefinite leave to remain, particularly where there is criminality. In answer to the third question, the 2015 policy in the Criminality section plainly states that the maximum period which can be given is 30 months. The respondent has moved away from the 3 years which was available under the pre-2012 version of the policy and there is no sufficiently strong link between the 2015 policy and the earlier policy such that it would override the provisions in the 2015 policy as to the length of discretionary leave to be given.
33. The natural meaning of the language, both in the Rules and in the policy, does not amount to an undertaking or promise that the applicant's criminal history will not be taken into account in considering the grant of indefinite leave to remain under the 2015 policy and its transitional provisions. In fact, the contrary is plainly the case.
34. The respondent's decision on 23 January 2018 to grant discretionary leave for 30 months and refuse to grant indefinite leave to remain was unarguably open to her, on the factual matrix as it then stood. Circumstances have changed since then: on 23 January 2018, the applicant had not reached the 15-year post-sentence date.
35. There has been a regrettable delay in the handing down of this judgment, but in consequence, the applicant is now in a position to apply for settlement even having regard to paragraph 322(1C) because it is now more than 15 years since the end of her sentence on 15 June 2004. That 15-year date was reached on 15 June 2019 and this application has therefore become academic.
36. This judicial review application is dismissed.
37. The appellant will pay the respondent's reasonable costs of these proceedings, to be assessed if not agreed.
38. There is no application for permission to appeal to the Court of Appeal. I have considered for myself whether I should grant permission to appeal. I refuse permission, because I am not satisfied that there is any arguable error of law in the judgment I have given today. ~~~0~~~~