JR-2025-LON-000110
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The decision
Case No: JR-2025-LON-000110
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
7 August 2025
Before:
UPPER TRIBUNAL JUDGE KEBEDE
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Between:
THE KING
on the application of
TT
(Anonymity Order made)
Applicant
- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Ms R Chapman
(instructed by Wilson Solicitors LLP), for the applicant
Lord Murray of Blidworth, Counsel
(instructed by the Government Legal Department) for the respondent
Hearing date: 11 July 2025
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J U D G M E N T
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Judge Kebede:
1. This is an application for judicial review of the decision of the Secretary of State for the Home Department dated 2 January 2024 refusing the applicant’s application for indefinite leave to remain in the UK and the supplementary refusal decision of 14 May 2024 maintaining that refusal following a review. Permission to apply for judicial review was granted at an oral hearing by Upper Tribunal Judge Hirst and in an amended order issued on 25 March 2025.
Background
2. The applicant is a national of Zimbabwe, born on 8 December 1956. She had five children when she was living in Zimbabwe. She entered the United Kingdom on 29 December 2001 and claimed asylum on arrival. She claimed that she and her husband were farmworkers and members of the MDC as a consequence of which her husband was tortured and she was tortured and gang raped by ZANU-PF youths and she therefore fled the country. The applicant’s asylum claim was refused on 7 January 2002 and her appeal against the refusal decision was dismissed on 12 April 2002.
3. The applicant’s eldest daughter arrived in the UK in July 2004 and claimed asylum. She gave birth to K, the applicant’s granddaughter, on 5 January 2007. On 7 April 2020 the applicant’s daughter died of covid 19 and the applicant became K’s guardian. K subsequently became a British citizen, and is now 18 years of age.
4. In the interim, on 30 November 2005, the applicant was convicted of possession of a false instrument (a false South African passport which she used in an attempt to obtain a national insurance number to enable her to work) and on 18 January 2006 she was sentenced to 12 months’ imprisonment. In March 2006 she made a fresh asylum claim. The respondent made a decision to deport her in May 2006. She appealed against the deportation decision. After an initial unsuccessful appeal and several unsuccessful further submissions, the applicant’s appeal against a further decision was allowed on human rights grounds on 9 September 2011. In allowing the appeal, the Tribunal expressly accepted that the applicant had been raped and that it was a consequence of that and the disappearance of her husband that caused her to flee Zimbabwe and that she had a subjective fear of persecution and was not an economic migrant.
5. The applicant was granted discretionary leave to remain from 3 February 2012 to 31 January 2015, followed by two further three-year periods of discretionary leave, from 23 August 2016 to 19 August 2019 and from 15 July 2020 to 15 July 2023.
6. The applicant applied, on 14 July 2023, for settlement on the pre-2012 discretionary leave settlement route, on the basis that she had completed six years of continuous discretionary leave. She provided a statement and various letters of support from friends, and relied on the fact that her family was in the UK, that she was getting old and her health was declining, that she had continued to work as a carer, and that it would reassure her granddaughter if she had settled status in the UK.
7. On 27 December 2023 the respondent indicated that the applicant’s application would be refused with reference to paragraph 9.4.1. of Part 9 of the Immigration Rules, based on her 12 month sentence of imprisonment. On 2 January 2024 the applicant’s application was refused and she was granted instead a further three year period of discretionary leave from 2 January 2024 until 2 January 2027.
8. The appellant sent the respondent a pre-action protocol (PAP) letter dated 31 January 2024 challenging the decision of 2 January 2024, which included further evidence from K’s school and further supporting letters from family and friends and which asserted that the respondent had failed to consider her discretion to grant ILR outside the immigration rules in line with her Discretionary Leave guidance version 10, 16 March 2023. The respondent responded to the PAP on 12 February 2024, maintaining her decision. The applicant then sent a second PAP dated 21 February 2024 which included a further witness statement from herself dated 20 February 2024 and a GP letter dated 27 January 2024, and which again asserted that the respondent had failed to consider her discretion to grant ILR outside the immigration rules in accordance with her policy guidance. The respondent maintained the decision in a response of 4 March 2024.
Judicial Review Claim and Grounds
9. The applicant lodged a judicial review claim in the Administrative Court challenging the decision, on 28 March 2024, on five grounds, asserting that the decision:
(i) Is ultra vires section 6 of the HRA 1998 and section 55 of the BCIA 2009;
(ii) Is a consequence of the Respondent’s exercise of residual discretion being unlawfully fettered;
(iii) Irrationally fails to consider the exercise of discretion outside the Immigration Rules;
(iv) Unlawfully discriminated against the applicant on the basis of her “other status”;
(v) Is contrary to the respondent’s statutory obligations pursuant to section 55 BCIA 2009.
10. On 14 May 2024 the respondent filed an Acknowledgement of Service and summary grounds responding to the applicant’s grounds of challenge. The respondent also served a supplementary decision letter dated 14 May 2024 in which consideration was given to the applicant’s circumstances under the Discretionary Leave policy (the relevant version of which, as the parties agreed, would have been version 10.0 dated 16 March 2023) at page 19 of 30 under the heading “Non-standard grant periods: longer periods of stay”. The respondent considered the evidence relied on by the applicant in relation to her granddaughter including a parenting plan dated 22 December 2020 entered into by the applicant and her partner C, a letter of support from C dated 23 June 2023, a GP letter dated 27 January 2024, a letter from Green School Sixth Form dated 5 December 2023 and the applicant’s witness statement.
11. The respondent maintained the refusal decision on the following basis:
“We have considered the evidence that you have provided with the application in relation to your granddaughter, taking into account the SSHD’s obligations under section 55 of the Borders, Citizenship and Immigration Act 2009. It is noted that your GP states you are the sole carer for your granddaughter. However, as evidenced in the parenting plan, although you are her primary carer, due to work commitments there are times when you are not available to care for your granddaughter, in which event you delegate parental responsibility to [C] and authorise him to care for your granddaughter.
The decision not to grant you ILR would not lead to a significant interference in terms of your family life and there is no evidence that your granddaughter would suffer any detriment if you were not granted ILR. You have been granted a further period of DL which means there is no immediate prospect of removal for you, so you can remain in the UK and continue to reside with your granddaughter when you have gaps in your contractual engagements or are taking respite breaks.
It is clear that [C], your GP and your granddaughter’s school all have the interests of your granddaughter at heart and it is understandable that they think it is very important for her to be assured that your place in her life is stable and constant. If your circumstances remain the same and you do not engage in any further activity that would affect your suitability to be here, the reasons why you were considered for further DL (and granted a further period of DL) on this occasion would continue to apply to any future application for a further grant of DL. Any decision on any future application for further DL would be taken by the SSHD in the light of the circumstances at the relevant time.
It has previously been accepted that you were a victim of rape in Zimbabwe, which significantly impacted, and continues to impact, your mental health. You also claim to be suffering from deteriorating ill-health for which you will require care and support from your family members in the UK. It is also noted that you are employed as a carer in the UK, providing support to vulnerable elderly people.
You have been granted DL in the UK with a condition of stay permitting recourse to public funds. It is therefore considered that you will have appropriate access to sources of benefits and accommodation as your entitlements permit and are therefore at no significant disadvantage compared to a person with settled status. You also have the right to work so you can continue in your employment providing care to the elderly.
As a person with DL in the UK you can access treatment and services via the NHS as necessary and will not therefore be disadvantaged as a result of having DL as opposed to ILR. You have been granted DL, so you do not have to leave the UK, unless you choose to do so. You can remain here and receive care and support from your family members as required.
It is noted from your witness statement that you have concerns about the future when you are unable to work and it will be difficult for you to pay for the application and Immigration Health Surcharge fees. You claim that if you have to continue to extend your leave forever, this would put a lot of stress on you and further impact your health. If you do not have sufficient funds at your disposal, after meeting your essential living needs, to pay the fee for an immigration application then you have the option to make a fee waiver application.
Whilst it is acknowledged that you have a family and private life in the UK, ILR is rarely granted on Article 8 grounds as a grant of limited permission to stay is sufficient to avoid any disproportionate interference in a person’s family or private life. ILR can be granted outside the Immigration Rules where the grounds are so exceptional that they warrant it, but such cases are likely to be extremely rare…”
12. The applicant filed a reply to the acknowledgment of service on 20 May 2024 objecting to the admission of the supplementary refusal decision. Amended grounds of challenge were lodged on 22 May 2024, in response to which the respondent lodged amended summary grounds of defence on 21 June 2024 with a covering letter of the same date.
13. In a decision dated 5 August 2024, permission to apply for judicial review was refused by Dan Squires KC sitting as a deputy High Court Judge in respect of all five grounds of challenge. The applicant renewed the application on three of the five grounds: the second, third and fifth grounds. The case was then transferred to the Upper Tribunal.
14. Permission to apply for judicial review was granted at a hearing by UTJ Hirst on 24 February 2025.
15. On 25 March 2025, the applicant filed consolidated grounds, encompassing only those grounds in respect of which she had been granted permission, asserting that the respondent’s decision:
(i) is a consequence of the Respondent’s exercise of residual discretion being unlawfully fettered;
(ii) irrationally failed to consider the exercise of discretion outside the Immigration Rules;
(iii) is contrary to the Respondent’s statutory obligations pursuant to section 55 BCIA 2009.
16. An amended order granting permission and directions was made by the Upper Tribunal and issued on 27 March 2025, giving the following reasons for the grant of permission:
“Reasons
(1) The Applicant seeks permission for judicial review of the Respondent’s decision dated 2 January 2024, and supplementary decision of 14 May 2024, refusing to grant her indefinite leave to remain and granting three years of discretionary leave to remain.
(2) It is arguable that the Respondent’s decisions did not engage with the evidence provided by the Applicant and that insufficient reasons were given for the Respondent’s conclusion that a grant of indefinite leave was not required in the Applicant’s particular circumstances. I consider that there is less force in the Applicant’s ground 1 but consider that it is arguable and grant permission on all grounds…”
17. The respondent filed her detailed grounds of defence on 14 May 2025.
18. Both parties filed skeleton arguments for the hearing, which was then listed before me.
Hearing and submissions
19. Both parties made detailed submissions before me.
20. Ms Chapman explained that ground two was an alternative to ground one. With regard to ground one, she submitted that the way in which Part 9 paragraph 9.4.1 of the immigration rule and the Home Office guidance were drafted excluded the possibility of discretion. The Home Office guidance at the relevant time, the “Grounds for refusal – Criminality” version 2, dated 9 November 2021, referred to changes in Part 9 of the Immigration Rules in respect of criminality which introduced a single threshold for mandatory refusal on the basis of a custodial sentence of at least 12 months and stated at page 5 of 34 “You must refuse an application where there is a mandatory ground for refusal”. It was therefore not possible for a caseworker to exercise discretion under the Immigration Rules or under that guidance. Ms Chapman submitted that such an event had a profound effect on the applicant who had waited several years to be granted leave and had then been disadvantaged by the changes in the rules which initially required her to wait 10 years to be able to apply for ILR, then 15 years, and currently removed altogether the possibility of eligibility for ILR under the immigration rules.
21. Ms Chapman submitted that the Criminality Guidance was at odds with other policies such as the “Nationality: good character requirement” guidance, version 4, of 31 July 2023 which, at page 11 of 57, made it clear that having a criminal record was not necessarily a reason to refuse an application for naturalisation, and the updated guidance “Nationality: good character requirement” guidance, version 6, of 11 February 2025 which, at page 56 of 59, referred to exceptional grants of citizenship and mitigating circumstances and provided examples of such. Ms Chapman relied upon an example which included a person in their late sixties who had offending committed a long time ago which would normally require refusal of citizenship due to a 2-year custodial sentence, but where over 40 years had passed since the last conviction with no further offending or other adverse factors. She also relied upon the further reference, at the bottom of the page, to offending that happened a long time ago and submitted that that was similar to the applicant’s circumstances in that both recognised that the passage of time could have a mitigating effect. Ms Chapmam submitted that it was irrational for there to be a wider discretion in citizenship applications than in applications for settlement. She submitted that the absence of a discretion in the Criminality Guidance acted as an unlawful fetter.
22. With regard to the second ground, Ms Chapman submitted that, whilst the respondent had accepted that the original decision of 2 January 2024 had failed to consider the exercise of discretion and had gone on to consider discretion under the Discretionary Leave policy in the supplemental decision, the respondent had nevertheless failed to have regard to material factors which were considered in the “Nationality: good character requirement” guidance to be relevant. As such, the supplementary refusal decision did not remedy the situation. It had failed to consider factors such as the passage of time and the applicant’s ongoing behaviour, the non-violent nature of her offending and her rehabilitation, the applicant’s age and her inability to continue working for much longer, the fact that K had turned 18 and that part of the reason for the previous grant of discretionary leave had therefore fallen away, and the impact upon the applicant and upon K of the precarious nature of her leave to remain in the UK. Ms Chapman relied upon the evidence submitted by the applicant in that regard, which included a letter from K’s school, a letter from K’s co-carer, C, the GP’s letter and the psychological reports from Dr Agnew-Davies and letters of support. Ms Chapman submitted that the supplementary letter was focussed on family life considerations and the fact that there was currently no prospect of removal, but failed to undertake a holistic consideration of all relevant matters. Although there was mention of K’s best interests, there was no proper engagement with the issue.
23. Lord Murray then made his submissions in response. With regard to the first ground, he submitted that there was no unlawful fettering of discretion because both version 10.0 of the Discretionary Leave policy and the subsequent version, version 11.0 of 30 May 2024, allowed for the exercise of discretion and a grant of leave outside the immigration rules, including ILR, where there were mitigating circumstances. He relied upon the cases of R (Munir) v SSHD [2012] 1 W.L.R. 2192 and R (Sayaniya) v Upper Tribunal (IAC) [2016] EWCA Civ 85, [2016] 4 WLR in that respect. He also referred to the fact that the Discretionary Leave policy provided that Part 9 of the rules had to be ‘considered’ but not that it had to be ‘applied’.
24. As for the second ground, Lord Murray submitted that the first decision had to be read together with the supplementary decision in which the respondent considered the applicant’s circumstances, noting that discretionary leave (DL) rather than ILR did not prevent the applicant looking after her granddaughter and that there was little up to date medical evidence. He submitted that it was implicit in the decision that the Respondent had considered the applicant’s age and length of residence in the UK. As for the nature of the applicant’s offending, Lord Murray submitted that it was relevant to look back to the First-tier Tribunal’s decision which had led to the grant of discretionary leave, and where the judge had, at [93], referred to the applicant’s offending as serious. Lord Murray submitted there was no reason why the Secretary of State had to have the same provisions in the naturalisation/ good character policy and the ILR policies, as they were different administrative decisions dealing with different circumstances. There was nothing irrational in the respondent’s decision. Lord Murray relied upon his skeleton argument in relation to the third ground which Ms Chapman accepted was not so relevant now that K was over 18.
25. Ms Chapman reiterated her previous submissions in her reply, and submitted again that the respondent’s decision was not a lawful one as it had failed to engage with material factors such as the applicant’s length of residence and the nature of her offending, and had focussed only on Article 8 matters. She submitted that had the decision-maker given consideration to the examples which were provided in the good character guidance, they may have looked at the matter differently and had regard to the broader picture.
Legal Framework
Immigration Rules
26. Paragraph 9.4.1 of Part 9 of the Immigration Rules (which came into force on 1 December 2020) provides:
“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”
Policy Guidance
27. The Home Office guidance document “Grounds for refusal – Criminality” version 2.0, published on 9 November 2021 provides at page 5:
“From 1 December 2020, the following changes apply to Part 9 of the Immigration
Rules in respect of criminality:
• introduce a single threshold for mandatory refusal on the basis of a custodial sentence of at least 12 months, replacing the previous three sentence-based thresholds …
You must refuse an application where there is a mandatory ground for refusal.”
28. And at page 11, relating to the previous Immigration Rules:
“Sentences of between 12 months and four years
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. You can make a mandatory refusal under paragraph 320(2)(c) and S-EC1.4(b) in Appendix FM and V 3.4(b) of Appendix V of the Immigration Rules.”
and at page 13:
“Criminality rules for applications made after 9am on 1 December 2020
Mandatory refusal of entry clearance, permission to enter or permission to stay
Paragraph 9.4.1. of the Immigration Rules provides that entry clearance or permission 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;
(b) is a persistent offender who shows a particular disregard for the law
(c) has committed a criminal offence, or offences, which caused serious harm.”
29. The Respondent’s Discretionary Leave guidance version 10, 16 March 2023, states at page 19 of 30:
“Non-standard grant periods: longer periods of stay
There may be cases where a longer period of leave is considered appropriate, either because it is in the best interests of a child (and any countervailing considerations do not outweigh those best interests), or because there are other particularly exceptional compelling or compassionate reasons to grant leave for a longer period (or ILR).”
and at page 25 of 30:
“Considering further DL
There is a cohort of claims where a claimant:
• has a previous custodial sentence of 12 months or more but has previously been granted DL (in the knowledge of this sentence); and
• is now applying for a further grant of DL
Under Part 9 of the Immigration Rules this application must be refused. However, for this cohort an exception may be made if certain criteria apply. You may grant a further period of DL to a claimant if all of the following criteria apply:
• the claimant has previously been granted DL
• the circumstances prevailing at the time of the claimant’s original grant of DL continue to apply
• the claimant’s offending occurred before their previous grant of DL which means they were last granted DL in the full knowledge of their previous conviction / convictions
• the claimant has not received any subsequent convictions since they were last granted DL; and
• the claimant does not fall within the scope of the restricted leave policy
If all the above criteria apply and the claimant otherwise meets the requirements of the DL policy, you may issue a further grant of DL…
Considering settlement
Settlement is a privilege and not an automatic right... Being granted leave on a particular route gives no expectation of anything further other than leave for the period originally granted. Therefore, further DL can be granted where the above criteria applies. However, any Indefinite Leave to Remain applications fall to be considered by reference to the Immigration Rules at the point of the application unless there are exceptional mitigating circumstances that would otherwise warrant a grant of leave. You must continue to consider all applications for settlement on a case-by-case basis, applying the current GGfR rules and policy.”
30. The Respondent’s Discretionary Leave guidance version 11, published on 30 May 2024, page 5 states:
“The Immigration Rules are designed to cover the vast majority of circumstances in which migrants will be granted leave because they are entitled to remain in the UK. However, there are a small number of Home Office policies that recognise there may be individuals who do not meet the requirements of the Immigration Rules, but there are nonetheless exceptional and/or compassionate reasons for allowing them to remain here…”
Discussion
31. Although the applicant’s initial grounds of claim, in the application made to the Administrative Court, included a challenge to the vires of the Immigration Rules in paragraph 9.4.1, it is accepted that that ground is no longer pursued. Neither is it the case, as Ms Chapman confirmed, that the lawfulness of the Home Office guidance related to Part 9 of the Immigration Rules is challenged. Ms Chapman confirmed that the remedy sought in the first of the applicant’s grounds, in relation to the “Grounds for refusal – Criminality” policy, was simply a recognition of the inconsistency between that policy and similar policies such as the “Nationality: good character requirement” policies. However, I do not agree that there is such an inconsistency and I do not agree that the respondent’s exercise of discretion has been fettered by the contents of that policy.
32. It was Ms Chapman’s submission that it was now not possible for a Home Office caseworker to exercise discretion under the Immigration Rules or under the “Grounds for refusal – Criminality” policy in circumstances where an applicant had been convicted of a criminal offence for which they had received a custodial sentence of 12 months or more, and that the respondent’s exercise of discretion had thereby been fettered. Contrary to the previous situation, prior to the change in Part 9 of the Immigration Rules, whereby ILR could be granted after a period of 10 years or, subsequently, 15 years, the current version of Part 9 provided for mandatory refusal without any time limit, and the “Grounds for refusal – Criminality” policy required caseworkers to refuse an application where there was a mandatory ground for refusal..
33. However, it is relevant to note that the Criminality policy is specifically applicable to, and reflects the provisions of, the Immigration Rules. The policy contains advice to caseworkers on how to apply the Immigration Rules and explains the difference between mandatory grounds of refusal and discretionary grounds. Those rules, as already mentioned, are no longer challenged and neither is the policy guidance itself. That is consistent with the decisions in Munir and Sayaniya, in which the higher courts addressed the status of the immigration rules and the source of the power to make the immigration rules being derived from the 1971 Act. In the latter case, the Court of Appeal rejected an argument that the mandatory nature of the immigration rules made them ultra vires on the basis of the non-fettering principle. In the circumstances, I find no reason why a policy guidance which specifically addresses, and provides advice to caseworkers on, Part 9 of the immigration rules, should include references to the position outside the immigration rules or examples of exceptional circumstances outside the application of the immigration rules.
34. That is particularly the case when there is a separate policy, the Discretionary Leave policy, which specifically addresses, and advises caseworkers on, matters which may fall outside the immigration rules and which makes clear that the respondent, despite any mandatory nature of the relevant immigration rules, nevertheless retains a discretion to consider circumstances outside the immigration rules, in relation to both the grant of discretionary leave and indefinite leave to remain. Pages 24 and 25 of the 16 March 2023 Discretionary Leave policy specifically refer to Part 9 of the immigration rules, and in particular to the mandatory nature of Paragraph 9.4.1, and page 25 provides advice on when discretion can be exercised outside the immigration rules in granting not only further discretionary leave but also settlement, in cases involving criminality. Contrary to the assertion in Ms Chapman’s skeleton argument at [31], therefore, the policy is not restricted to grants of further discretionary leave. Page 25 of the policy provides for a separate consideration for settlement where, under the heading “considering settlement” it states that “any Indefinite Leave to Remain applications fall to be considered by reference to the Immigration Rules at the point of the application unless there are exceptional mitigating circumstances that would otherwise warrant a grant of leave.” which are to be considered “on a case-by-case basis.” Similar provisions appear in the later Discretionary Leave policy, version 11 of 30 May 2024 at pages 26 and 27 of 32.
35. When Ms Chapman was asked how the Criminality policy could be seen as fettering the exercise of discretion when there was a separate policy, the Discretionary Leave policy, which specifically provided for the exercise of discretion outside the immigration rules in both applications of further discretionary leave and indefinite leave to remain, I understood her response to be that the Criminality policy ought to make reference to the discretion available to caseworkers by way of the Discretionary Leave policy and provide examples of circumstances where discretion could be exercised such as those set out in the “Nationality: good character requirement” guidance and that there were inconsistencies in the policies by reason of such an omission. However I do not agree. There is no inconsistency between the Criminality policy and the Discretionary Leave policy: the policies simply address different circumstances and serve different purposes. As regards the “Nationality: good character requirement” guidance and the Criminality/ Discretionary Leave guidance, any comparison of the two is unhelpful as they concern different departments with different administrative functions. I see no reason why each policy must refer to the other.
36. For all these reasons I reject the assertion in the first ground that there was unlawful fettering of the respondent’s exercise of residual discretion and I reject any suggestion that the various policies are inconsistent or contradictory.
37. As for the second ground, in so far as the first part of that ground asserts that there was an irrational failure by the respondent to consider the exercise of discretion to grant ILR outside the Immigration Rules, that challenge has now become academic, with the issue of the supplementary refusal decision of 14 May 2024. The respondent implicitly accepted that the first decision letter did not consider the exercise of discretion and has since remedied that defect in the decision by issuing the supplementary decision letter of 14 May 2024 in which the exercise of discretion was clearly considered.
38. The applicant asserts that the supplementary decision letter does not, however, provide an adequate remedy because the respondent, when purporting to consider the exercise of discretion in that decision, failed to provide proper and/or adequate reasons as to why the applicant’s case did not involve exceptional mitigating circumstances for the purposes of the policy, and furthermore failed to take account of material considerations. That is the challenge in the second part of the second ground. Those material considerations are said to be the applicant’s lengthy period of residence in the UK of over 20 years, her age, her past experiences in Zimbabwe, the compassionate circumstances in her case where her daughter died from covid 19 and she became the guardian of her British granddaughter K, the concerns arising for both the applicant and her granddaughter owing to the precariousness of her immigration status and the consequential concern as to her future given her inability to pay for further applications for DL/ILR, and her lack of security for her old age which were relevant to her mental health issues, as well as the circumstances of the relevant criminal offending which was non-violent, together with the lack of further offending.
39. It seems to me, however, that in considering the exercise of her discretion in the supplementary refusal letter, the respondent had regard to all relevant matters, either implicitly or explicitly, and I reject the assertion to the contrary. The first part of the respondent’s consideration is consistent with the guidance at page 19 of the Discretionary Leave policy under the heading “non-standard grant periods: longer periods of stay” which refers both to longer periods of leave and to ILR, and which requires a consideration of the best interests of the child, in cases involving children. The respondent gave detailed consideration to the evidence relied upon by the applicant in relation to her granddaughter K and to the possible impact on K of the limited nature of her leave, in the context of a best interests consideration under section 55 of the Borders, Citizenship and Immigration Act 2009 (BCIA 2009). The respondent considered the parenting agreement, the letter of support from the applicant’s partner, a GP letter and a letter from K’s school as well as letters of support from family and friends, observing that, whilst the applicant was K’s primary carer, there were times when she was not available to care for her and when she delegated parental responsibility to C and that in any event there was no immediate prospect of the applicant being removed from the UK. The respondent went on to consider the impact of a decision not to grant ILR on the applicant herself, having full regard to her unfortunate experiences in Zimbabwe and the death of her daughter, and the impact that had on her mental health, as well as her concerns about the future, but noted that she was entitled, with discretionary leave, to have access to treatments and services via the NHS and would not be required to leave the UK, so that she was at no disadvantage by not having been granted settlement. As asserted in the detailed grounds of defence and the respondent’s skeleton argument, there was no obligation on the respondent to accept any feelings the applicant or her granddaughter may have of insecurity owing to a period of limited rather than permanent leave, as being sufficient to justify granting settlement.
40. Further, whilst the decision makes no specific reference to the applicant’s length of residence in the UK and her age, as well as the nature of her past criminal offending and her rehabilitation, it is necessary, as Lord Murray submitted, to consider the supplementary decision together with the initial decision which specifically took account of the applicant’s lack of further convictions and the previous grants of leave in the full knowledge of her conviction, and which referred to the circumstances which had led to the previous grants of leave and which were still prevailing, which would necessarily have included her age, length of residence in the UK and the nature of, and circumstances relating to, her offending. Furthermore, the respondent made clear, in the supplementary refusal decision, that the decision was based upon a review of all the information available in the applicant’s immigration application of 14 July 2023 and in her judicial review bundle of 28 March 2024, and as such it is clear that those are all matters of which the respondent was fully aware and would have taken into consideration, and was not required to repeat or specifically recite. In so far as Ms Chapman submits that the respondent focusses only on the Article 8 family and life aspects and fails to undertake a holistic consideration when exercising her discretion, it is therefore clear that that is not the case.
41. In the circumstances I find no merit in the assertion that there was a failure to undertake a holistic consideration of all relevant matters. The respondent’s consideration of whether to exercise discretion in granting ILR was a full and detailed one which was undertaken in accordance with the relevant policy guidance and which took account of all relevant matters. For the reasons fully and cogently given the respondent was unarguably entitled, on the evidence available to her, to conclude that there were no sufficiently mitigating or exceptional circumstances justifying a grant of settlement. There was nothing arguably unreasonable or irrational in the respondent exercising her discretion in the way that she did. In essence the applicant’s challenge in this regard is little more than a disagreement with the respondent’s decision and a further attempt to argue her case.
42. As for the third ground, which asserts that the decision is contrary to the respondent’s statutory duties under section 55 BCIA 2009, that is without any arguable merit as the supplementary decision expressly addressed the matter and gave detailed consideration to the best interests of the applicant’s granddaughter, as already mentioned above. In any event, as Ms Chapman accepted, the challenge has become somewhat academic given that K is now over the age of 18.
43. For all of these reasons I consider that the applicant’s grounds have not been made out. There was nothing irrational, unreasonable or unlawful in the respondent’s decision to refuse to grant the applicant ILR on the basis that she did and for the reasons given.
DECISION
44. The applicant’s judicial review claim is accordingly dismissed.
Costs
45. Both parties made written submissions as to costs. The respondent, in a brief submission, simply seeks her costs of the claim which, it is submitted, should follow the event in the normal way. The applicant has made more detailed submissions, relying upon her bank statements and tax returns, and requesting that discretion be exercised such that she should not be required to pay the respondent’s costs or alternatively that costs should be limited to a nominal amount. Three reasons are provided for that request: her limited income and savings as a result of her age and health issues; the importance to her of the issues raise in her claim; and the history of the judicial review application.
46. However, it was the applicant’s choice to pursue her claim on the basis of grounds which I have found to have little merit, albeit that permission was granted on a renewed application (primarily on one ground). The applicant has had the benefit of legal advice and representation throughout and would have been fully aware of the requirement to meet the respondent’s costs should she be unsuccessful in these proceedings. Accordingly, I find no merit in the reasons provided, in particular the first two reasons.
47. Having said that, there is some merit in the third reason which relates to the history of the claim. It is the case that the respondent failed to exercise discretion in her original decision and that, despite the applicant serving two pre-action protocol letters raising the matter, it was only after the applicant lodged her claim that the respondent undertook that exercise and issued a supplementary decision. Nevertheless the applicant chose to continue pursuing her claim despite the supplementary decision providing a remedy. In the circumstances I am satisfied that, whilst the applicant should pay the respondent’s reasonable costs of these proceedings, the costs up until 14 May 2024 should be reduced by half.
48. Accordingly, the appropriate order is for the applicant to pay 50% of the respondent’s reasonable costs up until 14 May 2024 and the respondent’s full reasonable costs thereafter, to be assessed if not agreed.