Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: JR-2024-LON-000328

Field House,
Breams Buildings
London, EC4A 1WR

17 October 2025

Before

UPPER TRIBUNAL JUDGE NEVILLE

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Between

THE KING
on the application of
MD SHAHADAT HOSSAIN
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Patrick Lewis
(instructed by Liberty Legal Solicitors LLP), for the applicant

Catherine Brown
(instructed by the Government Legal Department) for the respondent

Hearing date: 30 October 2024

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J U D G M E N T

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1. This is an application for judicial review of a decision by the Respondent on 29 December 2023 to refuse the Applicant Indefinite Leave to Remain (“the refusal decision”).
2. The relevant chronology is uncontroversial. The Applicant entered the UK with entry clearance as a Tier 4 General Student, valid until 30 June 2012. This was subsequently extended, upon application, to 31 July 2014. The Applicant submitted a further application for leave on 3 February 2014, which was refused on 7 May 2014. The sole reason for refusal was that the Respondent considered the Applicant to have procured an English language certificate by use of deception. The nature of that allegation, also made against a large number of other individuals, is described by the Court of Appeal in Ahsan v Secretary of State for the Home Department [2017] EWCA Civ 2009 as follows:
1. […] The Immigration Rules require applicants for leave to remain in some circumstances to pass a test of proficiency in written and spoken English. The principal form of approved test is the “Test of English for International Communication” (“TOEIC”) provided by a US business called Educational Testing Service (“ETS”). ETS’s TOEIC tests have been available at a large number of test centres in Britain. The spoken English part of the test involves the candidate being recorded reading a text, with the recording then being sent to an ETS assessor for marking. In February 2014 the BBC Panorama programme revealed that there was widespread cheating at a number of centres, in particular – though not only – by the use of proxies to take the spoken English part of the test. In response to the scandal, ETS at the request of the Home Office employed voice recognition software to go back over the recordings at the centres in question and try to identify cases in which it appeared that the same person had spoken in multiple tests and could thus be assumed to be a professional proxy. In reliance on ETS’s findings the Secretary of State in 2014 and 2015 made decisions in over 40,000 cases cancelling or refusing leave to remain for persons who were said to have obtained leave on the basis of cheating in the TOEIC test.
2. Although it seems clear that cheating took place on a huge scale, it does not follow that every person who took the TOEIC test in any centre was guilty of it. Large numbers of claims have been brought, either in the First-tier or Upper Tribunals (“FTT” and “UT”) or in the High Court, by individuals who say that the Home Office’s decision in their case was wrong: this has become known as the TOEIC litigation. There have already been many decisions on both procedural and substantive questions. Criticisms have been advanced of the way in which the Home Office approached the task of identifying individuals who had cheated, and some challenges have succeeded. It is the Secretary of State’s case that the proportion of the impugned decisions that was wrong or unfair is very small indeed; but even if that turns out to be the case the individuals affected by those decisions will have suffered a serious injustice.
3. As well as refusing the application, at the same time the Respondent issued the Applicant with a notice that he was liable to removal under section 10 of the Immigration & Asylum Act 1999. As noted in Ahsan, the Applicant could only appeal that decision to the First-tier Tribunal once he had left the United Kingdom. The Applicant took two steps in response. First, on 9 June 2014 he issued judicial review proceedings in the Upper Tribunal challenging the section 10 decision. Permission was refused by Upper Tribunal Judge Macleman, and the application certified totally without merit. Second, on various dates in the following months he sent emails to ETS requesting further information including a copy of the audio recording of his tests – it is agreed that those enquiries with ETS went nowhere, through no fault of the Applicant.
4. The Respondent asserts that the Applicant then absconded between 2015 and 2018. The Applicant claimed asylum on 27 July 2018, but withdrew that claim on 20 June 2022. On 13 January 2021, he made a human rights claim, which was refused on 29 October 2021. He appealed and, on 29 March 2023, First-tier Tribunal Judge Howorth found that the Applicant had not used deception in sitting the test. In response, on 28 November 2023 the Respondent granted him leave to remain until 27 May 2026. It is important to note that the actual ground of appeal before First-tier Tribunal was that removing the Applicant from the UK would be contrary to section 6 of the Human Rights Act 1998, by reference to Article 8 ECHR.
5. On 13 December 2023 the Applicant made his application for indefinite leave to remain (“ILR”), leading to the present refusal decision. The grant of limited leave remains in place.
The refusal decision
6. The refusal decision began by noting that the relevant requirement for a grant of indefinite leave to remain, then contained at para 276B(i)(a) of the Immigration Rules, required the Applicant to have had “at least 10 years continuous lawful residence in the United Kingdom”. The Applicant had not had lawful leave between 7 May 2014, when his Tier 4 application was refused due to an allegation of TOEIC deception, and 28 November 2023, when he was granted limited leave to remain following a successful human rights appeal. The Secretary of State maintained that the Applicant’s leave had been invalidated by the section 10 removal decision served on 12 May 2014, and that the subsequent grant of leave in 2023 did not retrospectively validate the intervening period.
7. The refusal decision then reads:
The SoS acknowledges that you were refused for a fraudulent ETS test in 2014 and then served an IS151A on the basis you had obtained leave by deception. Following this you had broken immigration law by absconding from immigration bail and it is also noted that after this date you did not try to regularise your stay until 2018 when you claimed asylum, 3 years after the date you had absconded. You had withdrawn this claim for asylum so therefore we would state you had not attempted to regularise your stay until you applied outside the rules for limited leave to remain in 2021.
We also note that you were granted limited leave to remain in November 2023, following an appeal in which you were found not to have taken a fraudulent ETS test and therefore did not obtain leave by deception. The ruling for most of these cases are to place the applicant back in the position where they were first at before the allegations. …
8. I pause to note that the ‘ruling’ to which the refusal decision refers is Ahsan, in which Underhill LJ described when there would be an obligation on the Respondent to remedy a situation in which an individual’s leave was invalidated in response to an allegation of cheating that later proved unfounded. Addressing this, the refusal decision continues:
In your case, you were residing in the UK as a Tier 4 Student, this form of leave does not warrant a route to settlement and therefore it cannot be speculated that without the allegations you would have received settlement, as you were not on a route to settlement or Indefinite Leave to Remain in the UK. We must also highlight the fact that in 2015 you had impeded proceedings and investigations by absconding from immigration detention.
9. As the refusal decision did not require the Applicant to leave the UK, the respondent did not refuse a human rights claim and there was accordingly no statutory right of appeal.
Ahsan and Khan
10. Ahsan ends with Underhill LJ giving a helpful summary of the Court’s conclusions:
158. I am conscious that the discussion and analysis in the previous 157 paragraphs is very elaborate. In case it is of assistance to practitioners and others I will give a short summary of my reasoning on the points of possible wider application raised by these appeals. But I emphasise that any summary of this kind carries the risk of being over-broad and omitting important subtleties, and on any point of difficulty it is necessary to go back to the detailed reasoning. Since I understand that the judgment is agreed by Floyd and Irwin LJJ I will refer to my conclusions as those of the Court:
(1) In deciding by what route a decision to remove someone on the basis that they cheated in a TOEIC test can be challenged, the starting-point is to establish whether the decision was made under the 2014 Act regime or its successor. (If it was made prior to 20 October 2014 it will fall under the old regime, and if it was made after 5 April 2015 it will fall under the new regime; in between those dates the position depends on the effect of the applicable commencement and transitional provisions.)
(2) If the decision falls under the old regime it will have been taken under section 10 of the 1999 Act in its unamended form. The person affected by the decision will generally have a right only to an out-of-country appeal, under section 82 of the 2002 Act, read with section 92(1): they will not, except by unusual chance, have a right to an in-country appeal under the “human rights claim” provision of section 92(4), because they will not typically have made such a claim prior to the removal decision: see para. 15.
(3) What the Court holds in part (A) – see in particular paras. 72-98 – is that an out-of-country appeal is not an effective remedy where (a) it would be necessary for the appellant to give oral evidence on such an appeal and (b) facilities for him or her to do so by video-link from the country to which they will be removed are not realistically available. It accordingly holds, subject to (4) below, that persons against whom such a decision is made will be entitled to challenge the decision by way of judicial review; that is so whether or not their article 8 rights are engaged. In reaching that conclusion the Court follows the approach of the Supreme Court in Kiarie and Byndloss to what are substantially similar circumstances and distinguishes its previous decisions in Mehmood and Ali and Sood. The Court finds that both conditions were satisfied in the present cases and observes that condition (a) is likely to be satisfied in TOEIC cases generally (see para. 91) and that in typical cases condition (b) is likely to be satisfied also (see para. 90).
(4) Notwithstanding (3), the Court at para. 99-127 accepts that in principle permission to proceed by way of judicial review could be refused if the person in question could achieve an equivalent remedy by an in-country human rights appeal under the 2014 Act regime, subject to the Home Secretary’s power to certify the claim as wholly unfounded. But such a remedy would only be equivalent if the three conditions identified at para. 116 above are satisfied, which they were not in these cases.
(5) Part (B) of the judgment concerns a challenge to the certification of a human rights claim in a particular case to which the 2014 Act regime applies. The Court finds that the certificate is liable to be quashed. The decision does not directly depend on the issue of whether the Appellant cheated in his TOEIC test, but the Court makes some observations about the appropriateness of certification where that is the determinative issue: see para. 156.
(6) The judgment also discusses the authorities on the extent to which the article 8 rights of students may be engaged by their removal prior to completion of their studies (see paras. 84-88) and the obligations of the Secretary of State to facilitate return in cases where a person who has been removed is successful in an out-of-country appeal (see para. 133).
11. After setting out when and how an individual should be afforded such a right of appeal, Underhill LJ described what should follow a finding in the appellant’s favour:
120. The starting-point is that it seems to me clear that if on a human rights appeal an appellant were found not to have cheated, which inevitably means that the section 10 decision had been wrong, the Secretary of State would be obliged to deal with him or her thereafter so far as possible as if that error had not been made, i.e. as if their leave to remain had not been invalidated. In a straightforward case, for example, she could and should make a fresh grant of leave to remain equivalent to that which had been invalidated. She could also, and other things being equal should, exercise any relevant future discretion, if necessary “outside the Rules”, on the basis that the appellant had in fact had leave to remain in the relevant period notwithstanding that formally that leave remained invalidated. (I accept that how to exercise such a discretion would not always be easy, since it is not always possible to reconstruct the world as it would have been; but that problem would arise even if the decision were quashed on judicial review.) If it were clear that in those ways the successful appellant could be put in substantially the same position as if the section 10 decision had been quashed, I can see no reason in principle why that should not be taken into account in deciding whether a human rights appeal would constitute an appropriate alternative remedy. To pick up a particular point relied on by Mr Biggs, I do not regard the fact that a person commits a criminal offence by remaining in the UK from (apparently) the moment of service of a section 10 notice as constituting a substantial detriment such that he is absolutely entitled to seek to have the notice quashed, at least in circumstances where there has been no prosecution. (It is also irrelevant that the appellant may have suffered collateral consequences from the section 10 decision on the basis that his or her leave has been invalidated, such as losing their job; past damage of that kind cannot alas […] be remedied by either kind of proceeding.)
121. So far so good, but the law in this area is very complicated and I am not confident that all its ramifications were fully explored before us. I do not feel in a position to say definitively that the Secretary of State will always be able to exercise her discretion, in the aftermath of a successful human rights appeal, so as to achieve the same substantive result as the formal quashing of the section 10 decision. There may, for example, be legislation (i.e. primary or secondary legislation rather than simply the Rules) which would result in the appellant having to be differently treated depending on whether he or she had leave to remain during a particular period. If there were any real doubt about whether in a given case a successful human rights appeal would be as effective as the formal quashing of the section 10 decision the applicant should have the benefit of that doubt and be permitted to pursue judicial review proceedings.
[…]
124. The remaining question is what the position is if no human rights claim has been made at all: the Secretary of State cannot decide a claim which has not been made. Given the complexity of the law in this area, I am not prepared to be critical of an applicant who has brought judicial review proceedings challenging a section 10 decision under the pre-2014 Act regime but who has not appreciated the possible procedural value of also making a human rights claim. Under that regime the making of such a claim would not, so far as the statute was concerned, have entitled him or her to an in-country appeal, because the claim would necessarily have post-dated the decision; only the most sophisticated might have been aware of the Nirula work-around. Nor do I think it is reasonable to expect them to have re-assessed the position following the coming into force of the new regime. However, the position would in my view be different if this route to an in-country appeal – in what I believe to be inherently the more appropriate forum – had been expressly offered to them by the Secretary of State and unreasonably refused. If the Home Office were to invite a judicial review applicant to make a human rights claim and undertake to consider such a claim and reach a decision within a reasonably short period (say 28 days), and that offer were not accepted, I would regard it as legitimate for the UT to refuse permission – assuming that the other conditions were satisfied – on the basis that an in-country appeal was potentially available and that the only reason why it was not yet actually available was the applicant’s own inaction.
12. While Nabeel Ahsan’s leave had curtailed by a section 10 notice on the basis of TOEIC deception, before it would otherwise have expired, this Applicant had also made his in-time application for further leave to remain on 3 February 2014. That was refused at the same time as the section 10 notice was issued. His circumstances are therefore more akin to one of the linked appellants in Ahsan, Ataullah Faruk (AF):
132. The second stemmed from the fact that AF had a pending application for an extension of his leave to remain at the time that the section 10 notice was served. It was said that but for the allegation of cheating that application would have been granted, and that it would have led to his accruing ten years lawful residence in 2016 and qualifying for indefinite leave to remain. Mr Malik’s point was not that the invalidation of AF’s existing leave to remain by the service of the notice would deprive him of that opportunity: as I understand it, he acknowledged that if the appeal succeeded the status quo ante would be restored. Rather, it was that if he had to leave the country in order to pursue his appeal he would cease to be able to show ten years’ continuous residence. Ms Giovannetti’s response was that the Secretary of State acknowledged that, if on an out-of-country appeal the FTT found that AF had not cheated, she would be obliged to proceed in any application under the Rules on the basis that the section 10 notice was wrongly given and that AF would have accrued the necessary ten years. I see no reason to go behind that assurance, and if this had been the only basis of AF’s appeal I would have dismissed it.
13. Ahsan was followed by Khan & Ors v Secretary of State for the Home Department [2018] EWCA Civ 1684 As recorded by Singh LJ at [6], the parties had reached a compromise shortly before the hearing, but had also agreed:
…that, to the extent that the Court saw fit, it would be desirable for this Court to give a short judgment setting out the basis upon which these appeals have been compromised, as this should assist in the conduct of other cases.
14. Ashif Khan had promptly brought a judicial review claim against his curtailment decision, and this Tribunal’s refusal of permission was the subject of the appeal. One of the linked appellants, Safayet Hossain, had, like this Applicant, made an application for further leave that had been refused on the basis that he had used deception. He brought a claim for judicial review, permission again being refused by this Tribunal and Safayet Hossain appealing to the Court of Appeal. Neither Ashif Khan nor Safayet Hossain had yet had the benefit of any decision by the FtT as to whether they had used deception, nor had the Respondent conceded the issue.
15. The material description of the Respondent’s position on settlement is this:
36. Subsequently, in a document which we understand was served on 22 June 2018 although it is on its face undated, entitled "Response to the Appellants' Position Statement", the Secretary of State further clarified his position in advance of the hearing of these appeals. Paras. 2-4 of the Response explain, in response to points raised in the Appellants' position statement, why it was important in principle that the Secretary of State should not agree to inhibit his right to certify a human rights claim in cases of this kind. But para. 5 goes on to say:
"Notwithstanding the above, the Respondent is able to agree that in these specific cases she will not certify the claims. For the reasons set out above, this cannot and should not bind the SSHD in other cases, the facts of which are not before the Court and are in any event … likely to vary on a case by case basis, including depending on any updated evidence they put before the SSHD, and so not currently within his knowledge." (Bold in original)
37. Further, at para. 8 of the note, it was stated:
"Nonetheless, for the avoidance of doubt, the SSHD confirms that:
(i) For those individuals whose leave was curtailed, and where that leave would still have time to run as at the date of an FTT determination that there was no deception, subject to any further appeal to the UT, the curtailment decision would be withdrawn and the effect … would be that leave would continue and the individuals would not be disadvantaged in any future application they chose to make;
(ii) For those whose leave has been curtailed, and where the leave would in any event have expired without any further application being made, the Respondent will provide a further opportunity for the individuals to obtain leave with the safeguards in paragraph (iii) below.
For those whose leave had expired, and who had made an in time application for further leave to remain which was refused on ETS grounds, the effect of an FTT determination that there was no deception would be that the refusal would be withdrawn. The applicant in question would still have an outstanding application for leave to remain and the Respondent will provide them with a reasonable opportunity to make any further changes to their application which would be considered on the basis of them not having employed any deception in the obtaining of their TOEIC certificate, and they would in no way be disadvantaged in any future application they chose to make.
(iii) In all cases, the Respondent confirms that in making any future decision he will not hold any previous gap in leave caused by any erroneous decision in relation to ETS against the relevant applicant, and will have to take into account all the circumstances of each case.
However, the Respondent does not accept that it would be appropriate for the Court now to bind him as to the approach that he would take towards still further applications in the future, for example by stating that each applicant has already accrued a certain period of lawful leave. The potential factual permutations of the cases that may need to be considered are many and various. In some cases, for example, it will be apparent that, whilst on the facts as presented at the appeal an appellant's human rights claim is successful, he would not have been able to obtain leave at previous dates. Again, this issue will have to be dealt with on a case by case basis." (Bold in original)
The parties’ cases in brief
16. The Applicant contends that, in accordance with the principles in Ahsan, the Respondent was required to decide his application as though the decision and section 10 notice of 7 May 2014 had never been issued. This means that the Applicant should have been treated, for the purposes of his ILR application, as someone who had the requisite 10 years’ continuous lawful leave. Such leave would arise under section 3C of the Immigration Act 1971, his in-time application of 3 February 2014 never having been decided. He likewise falls within those who are acquitted of cheating described in Khan.
17. The Respondent disputes this analysis. First, the successful human rights application did not rescind or otherwise nullify the decision of 7 May 2014 – the mechanics of the settlement described in Khan, endorsed by the Court of Appeal, showed that a formal decision by the Respondent is required.
18. Second, neither the Court of Appeal’s judgment in Ahsan neither the agreement in Khan deprives the Respondent of discretion in individual cases. The Applicant’s situation had been rationally distinguished from those described in the authorities: his application for leave as a student did not put him on a path to settlement, with further applications to be made and eligibility requirements to be met before he would have accrued 10 years’ lawful residence; he had not, as had the appellants in Ahsan and Khan, pursued his judicial review to the Court of Appeal; the Respondent was entitled to take into account that the Applicant had instead absconded; and all of this meant that the Applicant sought to put himself in a better position than would have been the case if the allegation of deception had not been made. The agreement in Khan was to afford a human rights challenge where the allegation of deception could be tested, and the Applicant has had this. It is well-established, and the Respondent’s published policy, that ILR is a privilege, not an automatic entitlement. The Respondent had made a lawful and rational decision by granting limited leave, that would still permit the Applicant to be granted ILR in the future upon a successful application that meets the rules as they then prevail.
Discussion
19. I accept that it has never been the Applicant’s case that the FtT’s decision nullified or rescinded the Respondent’s 2014 decisions by operation of law. It is instead that the Respondent was obliged to treat them as not having been validly made, and that the Applicant should therefore be treated in the same way as anyone else with that chronology. So, hypothetically, if the Applicant had made his application on 7 May 2014 and the Respondent had simply lost it for a few years, making no decision until refusing on TOEIC deception grounds on 29 October 2021, the Applicant’s leave would have been extended for the entire period by section 3C(2)(a). The extension would have continued by virtue of section 3C(2)(b) and (c) while his appeal was ongoing. As no point has been taken (or ever is taken) on the period before the decision to allow the appeal was implemented, this would indeed mean that the Applicant had continuous lawful leave for 11 years and 3 months at the date of his application for ILR. Someone in this hypothetical situation would undoubtedly meet the requirement at para 276B(i)(a).
20. I reject the Respondent’s argument that any duty on her is contingent on a public law error being found in the section 10 decision in the particular case. As made clear at [119], the Court of Appeal was concerned with how a human rights appeal can be an effective remedy in the absence of the section 10 decision being quashed.
21. It was ultimately held that it could, and permission to bring judicial review against a section 10 notice should be refused because an appealable decision would be made and, if it was found in that appeal that no deception was used, the Respondent would act in the way described at [120]-[121]. Ahsan must therefore be understood as setting out a legal principle that a human rights application should be pursued rather than judicial review unless (so far as this case is concerned) one of the following features is present:
a. “other things [not] being equal” – I accept that this recognises that the Respondent can rationally take account of other matters not mentioned in the judgment.
b. “the applicant can[not] be put in substantially the same position as if the s.10 decision had been quashed” – As recognised in this part of [120], and then reiterated at [121], the Respondent may not always be able to relieve an individual of the consequences of the section 10 notice remaining in place. No such difficulty arises here, if the section 10 decision were quashed then the Applicant would meet para 276(i)(a) either by operation of law or as set out towards the bottom of page 7 of her published guidance Leave extended by section 3C (and leave extended by section 3D in transitional case). Applying that guidance in the present situation is plainly within the Respondent’s power. Indeed, I note that the approved consent orders for all three appeals in Khan included the Respondent agreeing to treat that individual as having had section 3C leave throughout.
22. That leaves the rationality of treating the Applicant as distinguishable from the appellants in Ahsan, on the basis that other things “are not equal”. Doubtless that discretion has been preserved. The Respondent argues that the Applicant will receive a ‘windfall’ by obtaining settlement without having had to make further applications, that he falls outside the scope of Ahsan, and then his delay and absconding. As to the first, the Respondent’s argument takes the wrong comparator. Ahsan demands comparison between quashing the section 10 decision and treating the Applicant as if it had been quashed. While the Court’s guidance concerns when permission to claim judicial review of a section 10 decision should be granted, it stands as a statement of principle upon which individuals are meant to rely when deciding to pursue a human rights claim rather than judicial review proceedings. If a windfall would accrue whichever route was taken, then this is no more of an escape valve for the Respondent than the irremediable detriments discussed at [120] (losing one’s job, etc) can operate as such for the individual.
23. I likewise reject that accumulation of sufficient section 3C leave to meet the long residence rule is qualitatively different. This was AF’s situation, as already set out, and the Court can be seen to consider it necessary that he have the benefit of that accrued leave. The same conclusion was tentatively expressed in relation to RK in Ahsan (see [114] and [126]). None of this demeans ILR as suggested by the Respondent, or violates its status as a privilege. The rules express the Respondent’s policy as to when that privilege should be conferred, and the Respondent will usually be bound by the rule of law to confer it in those circumstances. Her doing so when the rule of law requires someone to be treated as if they meet the rules’ requirements, rather than because they actually did, supports the maintenance of effective immigration controls rather than undermines them. Giving force to that requirement is the very premise of the judgments in Ahsan and Khan. Moreover, as I shall set out later, continuous residence is only one of the rules’ requirements.
24. Ms Brown argued that the Applicant falls outside the guidance in Ahsan because he did not appeal his adverse judicial review decision in 2014, and the Court of Appeal was only concerned with those cases before it or stayed awaiting it. This interpretation is unsustainable: it ignores that the Court gave guidance on when permission to claim judicial review should be granted or refused in like cases, and the Respondent’s own response to Ahsan as described in Khan. Indeed, the outcome for those cases that were stayed was likely to have been that the judicial review proceedings ended and a human rights claim made instead, putting them in a materially similar position to this Applicant.
25. Beyond any rational argument, the Applicant took appropriate steps to challenge the 2014 decisions and, given it transpires that his claim was certified by the Upper Tribunal as totally without merit1, cannot now be criticised for failing to apply for permission to appeal to the Court of Appeal.
26. All that is left are the matters of delay and absconding. I agree with Mr Lewis that the Applicant cannot be rationally disadvantaged by reason of failing to bring proceedings that were contrary to settled law at the time. There was little else he could do apart from leave the UK or remain here without leave. Khan includes appellants who did the former. The Applicant claimed asylum on 27 July 2018, and Ms Brown accepted that had that claim been decided then an appealable human rights claim would have likely arisen from the Applicant’s length of residence. As it is, the claim went undecided for almost three years until the application of 13 January 2021 was refused with a right of appeal. The Applicant then withdrew his asylum claim. While this was, as Ms Brown submitted, his choice, no-one has sought in these proceedings to suggest that the claim was made in bad faith.
27. The Respondent’s case includes that the Applicant should have “regularised his stay” earlier, but I accept Mr Lewis’s argument that until Ahsan there was no practical basis upon which he could possibly do so. If there was some delay between the judgment in Ahsan and the asylum claim, it is neither likely to have been material nor the actual period relied upon in the refusal decision. As to absconding, it appears to be accepted that the Applicant did not always comply with reporting requirements while he was in the UK without leave. I see no rational basis on which differential treatment of the Applicant is justified on this basis. Periods of unlawful overstaying and related conduct (including failure to leave the UK in response to a section 10 notice, a criminal offence) was immaterial to the outcome of Ahsan and Khan.
28. It is important to recognise that the Court of Appeal in Ahsan did not purport to create some form of new immigration rule or freestanding legal principle. Instead, it recognised that a limited number of people in a particular position had not been afforded an adequate remedy as regards the Respondent’s allegation of deception, and held that the Respondent was obliged to rectify this by the way in which she approached the implementation of a successful human rights appeal. This Applicant unquestionably formed part of that class of individuals, and I reject that any of the reasons put forward by the Respondent can rationally justify his exclusion – he was subject to what the Court of Appeal described at [2] as “a serious injustice”. Nor is such a basis provided by him having arrived at an adjudication of the allegation in a human rights appeal by a different route than those considered in, or stayed behind, Ahsan, (such as AF, the facts of whose case, it should be noted, bear considerable similarity to those here.
29. None of the above is to say that the guidance in Ahsan sought to cover all eventualities, or tie the Respondent’s hands by forcing her to grant leave against public policy or the provisions of the Immigration Rules. For a start, the issue is only relevant to one of several requirements that an applicant for ILR must meet. Take the hypothetical example of someone in the same position as the Applicant, but who had committed serious criminal offences during the period in question. If imprisoned, then nothing in Ahsan would prevent the Respondent from treating imprisonment as breaking the continuity of his leave in accordance with para 276A(a)(iv). If not imprisoned, then the Respondent would likely find that the residence requirement at para 276B(i)(a) was met, but then go on to assess whether it was undesirable to grant him ILR in accordance with para 276B(ii) and, under (iii), the general grounds for refusal. This adheres to the structured approach provided by the rules and preserves the privileged nature of ILR. In the present case, it is the Respondent who has sought to depart from the structure the rules provide by bringing forward the absconding into the continuous residence requirement. This is contrary to Ahsan and the decision-making structure prescribed by the rules.
30. For the above reasons, the decision refusing the application for ILR is unlawful. The appropriate relief is for the decision to be quashed so that it can be re-decided according to my conclusion that the only rational approach (absent any new information) is to treat the Applicant as meeting the continuous residence requirement at para 276B(i)(a). The rules’ other requirements remain at large.
31. I have reached the above decision without recourse to Khan. I would have nonetheless accepted that the present case cannot be rationally distinguished from the respondent’s agreement as recorded by the Court of Appeal, for the reasons argued by the Applicant.

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