Tribunal decisions

The decision

Case No: JR-2025-LON-000290
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

15 May 2026
Before:

UPPER TRIBUNAL JUDGE NORTON-TAYLOR
UPPER TRIBUNAL JUDGE LANDES
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Between:

THE KING
on the application of

TRILOCHAN SINGH MALHI
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Mr P Lewis
(instructed by Hubers Law), for the applicant

Mr M Biggs
(instructed by the Government Legal Department) for the respondent

Hearing date: 11 February 2026

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J U D G M E N T

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Judges Norton-Taylor and Landes:

Introduction
1. This application for judicial review concerns two interrelated issues: historical injustice and its relevance to the exercise of discretion outside of the Immigration Rules (“the Rules”) when considering an application for settlement made under Appendix Long Residence to the Rules.

2. At the outset, we express our gratitude to the parties for the preparation and presentation of their respective cases. Much is often said about the shortcomings of representatives, but it is important to acknowledge high quality work and the benefit of this to the Tribunal’s work.

Factual background
3. The factual background to this case is important.

4. The applicant is an Indian national, born in 1986. He entered the United Kingdom on 20 July 2012 with entry clearance as a Tier 4 General Student. Following the grant of an extension to the initial leave to remain, in June 2014 the respondent revoked the licence of his educational sponsor. On 14 November 2014 the applicant ceased his studies at the institution following what turned out to be instructions to it issued by the respondent. On 6 March 2015 Alpha College withdrew its sponsorship of the applicant. By a decision dated 24 April 2015 the respondent curtailed the applicant’s leave so that it expired on 23 June 2015 (“the 2015 curtailment decision”).

5. On 21 July 2015 the applicant submitted an application for leave to remain based on Article 8. That application (treated as a human rights claim) was refused on 23 December 2015 and certified under section 94 of the Nationality, Immigration and Asylum Act 2002, as amended. From 5 January 2017 the applicant was treated as an absconder and was next encountered and detained on 3 June 2018. Following this, the applicant claimed asylum. That claim and the accompanying human rights claim were refused on 6 December 2018 and a subsequent appeal dismissed by the First-tier Tribunal on 6 March 2019 (“the 2019 FTT decision”). The applicant became appeal rights exhausted on 6 June 2019.

6. On 6 January 2021 the applicant provided further submissions to the respondent based on Article 8 private life rights. At that stage he relied on what was described as the “historical injustice” of the curtailment decision. The further submissions were eventually accepted as constituting a fresh claim under paragraph 353 of the Immigration Rules. The applicant exercised his right of appeal and, by a decision promulgated on 29 February 2024, the First-tier Tribunal allowed his appeal on article 8 grounds (“the 2024 FTT decision”). That decision was not challenged by the respondent and, by decision dated 22 April 2024, she duly implemented it by granting the applicant limited leave to remain, valid to 21 October 2026.

7. On 27 September 2024 the applicant made an application for settlement on the basis that he had, or should be treated as having had, accrued 10 years’ continuous lawful residence in United Kingdom. On 29 November 2024 that application was refused by the decision now under challenge (“the 2024 settlement decision”).

8. Following pre-action protocol correspondence, this application for judicial review was made on 28 January 2025. Permission was initially refused on the papers, but granted at a hearing on 7 August 2025 on the basis of amended grounds of challenge.

The 2024 FTT decision
9. Before turning to the decision under challenge, it is appropriate to dedicate some space to the 2024 FTT decision. Whilst, for reasons set out in due course, we have concluded that the detailed findings do not play a decisive role in the current proceedings, it is nonetheless important that the respondent’s conduct over the course of time is acknowledged.

10. Having set out the relevant background, the judge begins his consideration of the issues pertaining to the Article 8 claim at [9] (we will only quote those passages strictly relevant to the case before us):

“9. The Appellant applied under paragraph 276ADE(1) on the basis that his leave to remain had been wrongly curtailed in April 2015. The Respondent’s official reason for the curtailment was that the Appellant was not attending Alpha College where he was registered. But the Appellant argues that he was not attending because the college told him not to. The Appellant was informed by Alpha College that, because he had taken a Test of English for International Communication (TOEIC) at Educational Testing Services (ETS), the college would withdraw his sponsorship, he would be detained by the Home Office and his leave would be curtailed. The college told him that this was because it had been contacted by the Respondent and told that there were suspicious results in the Appellant's TOEIC, and he must be expelled.

10. To clarify the timeline from the Respondent’s bundle as set out above, it is not correct that his leave was curtailed on 12 November 2014. In fact the decision was served in him on 24 April 2015, and referred to the Appellant not attending classes since November 2014. On the Appellant’s case, he stopped attending around then on Alpha College’s instruction. Alpha College’s Sponsor License to sponsor students had been revoked in June 2014, indicating that from then on, the Appellant lacked the required sponsorship to study in the UK.

11. In this application, the Respondent does not rely on the purportedly dishonest test results, and so does not maintain that he cheated on his TOEIC. The Appellant argues that he did not cheat, and that his leave was curtailed wrongly because the Respondent directed Alpha College to expel him. The fact that Alpha College did so and he stopped attending was then used against him in the curtailment. He was not offered an interview or to take the TOEIC again, as per the Respondent’s guidance, though he did in fact take an equivalent test in 2015, which he adequately passed. The guidance and equivalent test are discussed below.

12. If that is correct, the Appellant argues, then he should succeed in this appeal because his leave to remain was curtailed wrongly. As per the Court of Appeal decision in Ahsan [2017] EWCA Civ 2009, he argues that he should, as much as possible, be put back in the position he would have been in had his leave to remain not been curtailed. That is impossible, but the closest substitute is to allow this appeal on Article 8 grounds.

13. The Respondent’s position is that the curtailment was solely on the grounds of non-attendance at Alpha College, and relies on the dismissal of the Appellant's appeal in this tribunal in March 2019.

…

15. The judge found that the Appellant was not a witness of truth. I bear in mind the credibility assessment, and accept the findings that there were found to be no unduly harsh consequences or very significant obstacles to his re-integration in India. The Appellant’s claim before the judge in 2019 was based solely on protection issues. None of the issues in this case relating to the TOEIC or curtailment were mentioned, and the findings reached back only to 2015.

16. The Appellant obtained his Home Office file in January 2021 through a Subject Access request. His General Cases Information Database (GCID) notes include an entry dated 6 March 2015 that states inter alia,
“Sponsorship withdrawn; sponsor has stopped sponsoring the student
Student is withdrawn from the course because of TOEIC and UKVI direction.”

17. The next entry dated 25 March 2015 records the curtailment letter. It is recorded on 24 April 2015 that the curtailment letter was returned unopened and that it should be served to the Appellant’s email address, and the parties agree that it was.

18. The difficulty with the Respondent’s position to ignore the GCID entry and maintain that the curtailment was solely for his non-attendance at Alpha College is that the Respondent was found by the Upper Tribunal to have engaged in 2014 in “improper conduct, consisting in essence of duress and manipulation” at paragraph 73 of R (on the application of Mohibullah) v Secretary of State for the Home Department (TOEIC –ETS –judicial review principles) [2016] UKUT 00561 (IAC).

19. In that case, the Upper Tribunal found that between June and October 2014, by way of correspondence and meetings, Home Office officials improperly pressured Blakehall College management to expel some 218 students whose TOEIC results were ‘invalid’ or ‘questionable’. The college eventually complied, which meant that the Respondent accepted that the students had been expelled and reported to the Home Office, which then curtailed their leave to remain.

20. Home Office officials put to college management that they were required to expel the students (paragraph 30). It would be considered an act of compliance when the Respondent reconsidered the college’s suspended sponsorship licence.

21. The college wrote to Mr Mohibullah before his leave was curtailed, expelling him because he “submitted fraudulent [sic] ETS Certificate”. The Appellant claims he was told the same information verbally.

22. When the Respondent curtailed Mr Mohibullah’s leave to remain in December 2014, it was on the basis that his college informed the Home Office that he ceased studying with them. There was no mention in the curtailment of the pressure the Respondent put on the college. At paragraph 31 the judgment states, “[the Respondent] has evinced a clear policy of disassociation and innocence as regards student withdrawals...”.

23. Similarly, the Respondent’s position in this case is to pretend that the GCID entry of 6 March 2015 does not exist or is meaningless and to insist that the Appellant’s leave was curtailed because he stopped attending Alpha College. The Appellant has been found not credible, the Respondent says, so his claim that Alpha College told him not to attend on the Respondent’s orders must be a lie.

24. In these proceedings the Tribunal twice directed the Respondent to disclose any contemporaneous correspondence with Alpha College. The Respondent did not comply or respond.

25. I accept the Appellant's argument that the GCID entry means what it says. Alpha College withdrew sponsorship from the Appellant “because of TOEIC and UKVI direction.” It is exactly what the Respondent did in Mohibullah at the same time in 2014, and the Respondent refuses to explain what the GCID entry could otherwise mean. I accept that the Appellant is telling the truth that Alpha College told him not to attend because of the TOEIC.

26. In Mohibullah, it was accepted that the claimant’s voice was not the voice on the ETS recording. In this case, there is an expert report from Christopher Stanbury, a computing expert, who finds that it is not the Appellant's voice on the ETS recording but sets out numerous ways mistakes or cheating could have taken place without the Appellant’s involvement, i.e. perpetrated by ETS to boost its TOEIC pass rates. This possibility was considered in MA (ETS -TOEIC testing) Nigeria [2016] UKUT 450 (IAC) and R(Saha and Another) v SSHD (Secretary of State's duty of candour)[2017] UKUT 17 (IAC), though the Upper Tribunal rejected this in DK and RK.

27. But it seems to me that I need not make a finding on whether the Appellant cheated on the test in 2013 or not. In any case the Respondent did not actually find that his test results were invalid based on fraud. The designation in the GCID notes is that the Appellant's test was “questionable”. The Respondent’s policy at the time is not before me, but in DK and RK it states that the policy was not to accuse people with “questionable” results of fraud, but to curtail their visas anyway.

…

30. The Respondent does not rely on the TOEIC results, in accordance with his guidance. The GCID notes make clear that the Respondent did not curtail the Appellant’s leave because of any test result. What the Respondent did, as recorded in his own system, was to direct Alpha College that the Appellant was a cheater and that he should no longer be allowed to attend. The Respondent now presents his case on the pretence that that no such direction took place, or that it had nothing to do with the Appellant no longer attending Alpha College. I do not criticise Ms Yusuf, who acted in accordance with her instructions, but the Respondent’s position is disingenuous and unsatisfactory. It does not address either the significance of the entry in the GCID notes vis-à-vis the reasons given for the curtailment, nor the fact that he was left with no leave to remain in the UK.

31. According to the Respondent’s current guidance, a person found to have a “questionable ETS flag” should have either been interviewed or offered the chance to take the test again. No attempt was made to interview the Appellant. The Appellant took the International English Language Testing System (IELTS) test in February 2015, which was also an acceptable test for leave to remain in the UK under the Immigration Rules at that time. His scores, 5.5 and 6, were equivalent to passing the TOEIC at B2, an adequate level. The Respondent ignored this. On 21 July 2015 the Appellant applied for leave to remain on private life grounds. On 23 December 2015 the Respondent refused the Appellant's application for leave to remain without an in- country right of appeal. The Appellant had no opportunity to answer the real charge
against him which was cheating on the TOEIC.

32. In the Appellant’s 2019 appeal the judge found that there were no Very Serious Obstacles for the Appellant in India as per paragraph 276ADE(1)(vi). There is no evidence to depart from these findings. However, there are exceptional circumstances in this case. The Respondent’s machinations deprived the Appellant of an opportunity to clear his name when it would have been appropriate to do so in 2014-2015. Whatever the result of his later immigration applications, at a minimum his leave should have been curtailed for an honest reason and he should have had the opportunity to address it. That he passed an equivalent test in 2015 is strong evidence that he would have been able to show that his English ability was adequate to pass the TOEIC in the first place. The Respondent’s dissembling about his own
communication with Alpha College and the disingenuous basis for the curtailment, along with the failure to follow his own guidance about interviewing or re-testing, and the Appellant's lack of appeal rights, amount to exceptional circumstances with reference to GEN.3.2.(2)

33. I allow the appeal.”

11. The judge’s opprobrium of the respondent’s conduct speaks for itself.

The settlement decision
12. Having set out the applicant’s immigration history and the requirement for him to have accrued 10 years’ continuous lawful residence in the United Kingdom, the decision-maker concluded that the requirements of the Rules (specifically, paragraph LR12.1 of Appendix Long Residence) were not satisfied because there was a gap of leave between July 2015 (it is unclear why the gap was not said to start in June of that year when the curtailment took effect) and April 2024 (when the 2024 FTT decision was implemented).

13. The settlement decision then turned to the matter of the applicant’s request for the exercise of discretion:

“You have raised the issue of your leave being curtailed incorrectly, however, even if we had not curtailed your leave and if we classed the 21 July 2015 application as in time, this was refused with an out of country appeal right, so any leave would have ended then. Your next application was also refused. Therefore, you would have had a gap either way irrespective of the TOEIC issue. The Immigration Judge has clearly stated we cannot revert back to the date leave was curtailed [sic] too and there are gaps and out of time applications that cause you to have breaks in your leave. Even if we reverted back to the curtailment date, you would still have gaps in your leave and therefore cannot meet the 10 year requirement.

Consideration has also been given as to whether there are any factors which would warrant granting you indefinite leave to remain outside the Rules. [A link to guidance on leave outside the Rules is included]. This guidance states that applicants seeking ILR outside the Immigration Rules should provide details as to why they should be granted ILR rather than limited leave. ILR is a privilege, not an automatic entitlement. Unless there are truly exceptional reasons, the expectation is that applicants should start a route to ILR and serve a probationary period of limited leave before being eligible to apply for ILR. However, there may be exceptional cases where ILR is the only viable option, where a short period of leave is not appropriate because of, for example, particularly compelling compassionate circumstances. There must be sufficient evidence to demonstrate the individual circumstances are not just unusual but can be distinguished to a high degree from other cases to the extent that it is necessary to deviate from a standard grant of 30 months’ leave to remain.

With reference to [the guidance] there are no reasons for this to be applied as you currently have leave to remain in the UK until 21 October 2026.”

The law on historical injustice
14. That the concept of historical (as opposed to historic) injustice exists is, at least in these proceedings, uncontroversial. The relevant parts of the judicial headnote of Patel (historic injustice; NIAA Part 5A) [2020] UKUT 351 (IAC) state as follows:
…
“B. Historical injustice
(3) Cases that may be described as involving "historical injustice" are where the individual has suffered as a result of the wrongful operation (or non-operation) by the Secretary of State of her immigration functions. Examples are where the Secretary of State has failed to give an individual the benefit of a relevant immigration policy (eg AA (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 12); where delay in reaching decisions is the result of a dysfunctional system (eg EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41); or where the Secretary of State forms a view about an individual's activities or behaviour, which leads to an adverse immigration decision; but where her view turns out to be mistaken (eg Ahsan v Secretary of State for the Home Department [2017] EWCA Civ 2009). Each of these failings may have an effect on an individual's Article 8 ECHR case; but the ways in which this may happen differ from the true "historic injustice" category.”

15. In Ahmed (historical injustice explained) [2023] UKUT 165 (IAC), the Upper Tribunal made the important point that historical injustice was not a free-standing principle which could simply be relied upon without a “careful examination of the merits” of the case and that an individual had to demonstrate that they suffered as result of the wrong. In other words, causation was a necessary element in the equation: [33].

16. Patel and Ahmed both concerned Article 8 and the assessment of proportionality. However, whilst not couched in terms of “historical injustice”, the general concept of wrongful conduct by the respondent has been considered by the Courts other than in the context of Article 8, for example when considering the exercise of discretion: Moussaoui v SSHD [2016] EWCA Civ 50. In the present case, the respondent accepts that “an historical injustice may be a relevant consideration which the decision-makers should take into account when applying a discretionary power to grant leave, subject to Wednesbury principles.” In our judgment, that must be right. Depending on the particular circumstances of any given case and the need to show a causal link between the injustice and detriment, the respondent’s position is consistent with Ahsan and the need to adhere to rational decision-making.

17. Indeed, the respondent’s position in this case goes somewhat further. At [32(1)] of his skeleton argument, Mr Biggs confirmed that:

“When historical injustice is raised in support of an application for leave to remain relying upon the respondent’s discretion, the decision-maker is entitled to, and may be required to, consider the relevance of the asserted historical injustice and it may be a mandatory relevant consideration.”

18. In our judgment, historical injustice is not a mandatory consideration in the sense envisaged by the first category identified in R v Somerset CC, ex parte Fewings [1995] 1 WLR 1037, at 1049, namely one to which the decision-maker must have regard by virtue of a statutory provision. Rather, it falls into the third category, namely one to which the decision-maker “may have regard if in his judgment and discretion he thinks it right to do so.” Where, as in the present case, the decision-maker has in fact turned their mind to a particular consideration (e.g. historical injustice), it is within the second sub-category of the third type identified in Fewings: R (Friends of the Earth and Another) v Secretary of State for Transport (Heathrow Airport Ltd, interested party) [2020] UKSC 52, at [120]-[121]. In that scenario, the weight attributed to the consideration is a matter for the decision-maker, subject to a rationality challenge.

19. Whilst strictly speaking historical injustice may not constitute a mandatory consideration, it is difficult to see that a failure to have regard to it would withstand a public law challenge.

Ahsan and Khan
20. The judgments in Ahsan v SSHD [2017] EWCA Civ 2009 and Khan and Others v SSHD [2018] EWCA Civ 1684 are much-cited before the Upper Tribunal in judicial review challenges. With respect, we are not convinced that quoting numerous passages from the judgments at this stage will add much of value to what we have to say. In due course we will deal in some detail with these two cases when setting out our analysis of how to approach historical injustice in the context of these proceedings. For now, it is sufficient to quote the two principal passages from the judgment of Underhill LJ relied upon by the parties:

“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 cannot 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.”

21. As regards Khan, we will also in due course address the relevance of the consent orders approved by the Court.

R (oao Hossain) v SSHD JR-2024-LON-000328
22. There was some debate at the hearing as to whether the applicant required the Tribunal’s permission to rely on the unreported judgment of Upper Tribunal Judge Neville. We are not entirely convinced that such permission is required. However, the point does not arise in this case because both parties were agreed that we should consider the judgment and, if it were necessary, we should be taken as having granted permission.

23. Mr Hossain was in the United Kingdom with leave to remain until 31 July 2014. At the beginning of February of that year he made an in-time application for further leave. On 7 May 2014, the application was refused on the express (and sole) basis that he was alleged to have cheated when obtaining an English language certificate. He was duly served with a notice of liability to removal under section 10 of the Immigration and Asylum Act 1999. Soon thereafter, Mr Hossain challenged that decision by way of judicial review. Permission was refused and the claim was certified as being totally without merit, presumably on the basis that the out of country right of appeal was deemed to constitute an effective alternative remedy (a position subsequently found to be wrong in Ahsan three years later).

24. Mr Hossain then absconded between 2015 and 2018. On 27 July 2018 he claimed asylum, but then withdrew that claim in June 2022. Meanwhile, on 13 January 2021, he made a human rights claim, which was refused on 29 October of that year. In the subsequent appeal, the First-tier Tribunal found that he had not in fact cheated and he succeeded on Article 8 grounds. That decision was implemented by the respondent in November 2023 and he was granted the standard 30 months’ leave. In December 2023, Mr Hossain made an application for indefinite leave to remain based on the assertion that he should have been treated as though he had accrued the requisite 10 years’ continuous lawful residence in this country. That application was refused, it being said that his leave had ended with refusal decision of 7 May 2014 and the grant of leave in November 2023 did not retrospectively create leave during the intervening period. The respondent relied on Ahsan and concluded that, in effect, the appeal to the First-tier Tribunal constituted appropriate remedial action. The respondent concluded that it would have been speculative to assume that Mr Hossain would have in fact completed 10 years’ continuous lawful residence but for the erroneous allegation of dishonesty and that his immigration history between 2015 and 2021 was a relevant (adverse) consideration. That refusal led to the judicial review challenge. We have not seen the decision letter itself and cannot say whether there was an express consideration of discretion outside of the Rules.

25. Having quoted a number of passages from Ahsan (including [120] and [121] and the consent orders in Khan), Judge Neville’s analysis runs from [19] to [31]. We set it out in full here:

“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 merit. 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 paragraph 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 paragraph 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.”

26. We were informed at the hearing that the respondent had sought permission to appeal against Judge Neville’s judgment. At the time of drafting this judgment, we now know that permission to appeal was granted by the Court of Appeal on 3 March 2026 and the hearing of the appeal is floating over 15 and 16 July 2026. This development does not cause us to put off our judgment and we have not considered it appropriate to seek the views of the parties. Further delay is not in anyone’s interests and the losing party can decide in due course what further action, if any, they wish to pursue.

The parties’ submissions in summary
27. The substance of the parties’ submissions has been subsumed within our analysis of the issues and we do not wish to unnecessarily duplicate what has been said.

28. In brief summary, Mr Lewis’ case is, as he put it “very simple”. He submits that (a) where the FTT finds that an allegation of TOEIC deception made in a previous immigration decision was wrong, that decision should be treated as not having been validly made; (b) if that decision had the effect of bringing the individual’s continuous leave to an end, then (a) means that their leave should be treated as if it had continued; and (c) if the effect of (b) is that the individual is treated as having more than 10 years’ continuous lawful residence, then, all other things being equal, they will be entitled to indefinite leave to remain. Intervening events between the erroneous decision and a subsequent grant of leave pursuant to a successful appeal are irrelevant. In the present case, the only rational outcome was for the respondent to have treated the applicant as if he had accrued the necessary continuous lawful residence and that her discretion should be exercised accordingly by granting indefinite leave to remain. Significant reliance is placed on Hossain in support of that approach, which, it is submitted, is consistent with Ahsan and Khan.

29. Mr Biggs’ response is that in cases such as the present, Ahsan requires a fact-sensitive approach to be adopted in which events occurring between the erroneous decision and a subsequent grant of leave following a successful appeal are relevant to the exercise of discretion. The need to remedy the historical injustice does not oblige the respondent to put an individual in a better position than they otherwise would have been and the applicant’s submission to the contrary is misconceived. He submits that the intervening events in the present case (the December 2015 decision, the applicant’s absconding, and the application/asylum and human rights claims made in 2018 and the consequent unsuccessful appeal), were important. On any view, any section 3C leave the applicant may have had ceased in 2019 when that appeal was finally determined. The grant of 30 months’ leave following the 2024 FTT decision provided the appropriate remedial action and there was nothing irrational about the respondent’s exercise of discretion in respect of the settlement decision.

Discussion
30. This has not been an easy case to decide. That is not a criticism of the parties, but simply a reflection of the inherently difficult scenario in which a historical injustice is relied on many years down the line in an application predicated on claimed actual or deemed continuous lawful residence in this country.

The correct approach to historical injustice in light of Ahsan and Khan
31. In our judgment, the correct analysis of Ahsan and Khan in the context of historical injustice is as follows.

32. The core point arising from [120] of Ahsan is, as we see it, nothing more or less than that of remedial effectiveness, applied in a sensible and realistic manner. First, “so far as possible”, the respondent should deal with the wronged individual on the basis that the original curtailment of leave should not have taken place. In that way, the individual would be “restored” to the position they would have been in but for what has transpired to be a historical injustice. Second,” other things being equal”, the respondent should exercise “any relevant future discretion” outside of the Rules on the basis that the individual had had leave in the “relevant period”. Third, the exercise of such a discretion will “not always be easy” because of the inherently speculative nature of attempting to “reconstruct the world as it would have been”. Fourth, if the steps just set out could sensibly/properly be said to place the individual in “substantially the same position” as if the erroneous curtailment decision had not been made (i.e. if it had been quashed), that course of action should be taken into account in deciding whether a human rights appeal constituted an appropriate alternative remedy to judicial review.

33. The follow-on point made at [121] is simply the perfectly sensible recognition that extraneous circumstances may apply in any given case and the Court could not provide definitive guidance on each and every scenario which may arise. The example provided therein was the potential effect of legislation requiring an individual to be treated in a particular way.

34. Importantly for the purposes of the present case, when [120] and [121] are read together and in context, we derive two conclusions from the Court’s analysis. The first is that the “relevant period” in respect of which the respondent should treat the individual as having had leave is that covered by the last period granted to them before it was curtailed. That was the period targeted by the wrongful decision and that is in turn the target of the remedial effectiveness supplied by a successful human rights appeal containing a finding that there was no cheating. In other words, where an individual had a gap in leave as result of a wrongful decision, the respondent should not without more rely on that gap against an individual where there is a request to exercise discretion outside of the Rules as part of a subsequent application for leave to remain (whether limited or indefinite). The second is that the Court was not suggesting that all events occurring after the wrongful curtailment of leave could/should be disregarded by the respondent when exercising discretion at a later stage. Indeed, to the contrary, what may take place over the course of time can (and in some cases must) be relevant to that exercise. In our view, intervening events are not limited to, for example, criminality or other misconduct, new legislative provisions, or the emergence of new evidence relating to the original allegation of cheating. That is because (a) the Court did not provide a definitive exposition of what might necessitate differential treatment (legislative provisions were given only as an example) and (b) the Court expressed itself in relatively cautious terms as to the application of remedial action (employing phrases such as “in so far as possible” and “other things being equal”) and acknowledging that not all ramifications had been explored before it.

35. Our understanding of what was said in Ahsan is consistent with Khan, or at least is not inconsistent with it. In Khan, the Court was concerned with proceedings which had been compromised by consent. It is clear from the judgment that the settlement was based on the particular facts of the cases. Importantly, in all three appeals, the judicial review challenges against the curtailment decision had been made promptly and there had been no intervening events by way of further unsuccessful applications for leave to remain, in contrast to the present case. The respondent’s position is set out at [37]:

“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 an 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 law for 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 and 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 the original]

36. The Court approved the relevant consent orders and did not seek to prescribe the approach to be taken in respect of future applications.

37. All of this leads us to conclude that the thrust of Mr Biggs’ submissions on Ahsan and Khan is broadly correct and that in cases such as the present, what is required is a fact-sensitive assessment to be undertaken by the respondent when exercising her discretion. To an extent, that will necessarily involve a degree of speculation: as stated in Ahsan, such an assessment will “not always be easy, since it is not always possible to reconstruct the world as it would have been…” However, the potential difficulty is unavoidable and the scenarios will be varied and not susceptible to prescriptive guidance, as recognised at [121] of Ahsan.

38. It follows from the above that we reject the applicant’s core “very simple” submissions, as set out at [29], above.

39. Based on our analysis of Ahsan and Khan, that submission is superficially “very simple”, but, with respect, also too simplistic. We have no difficulty with (a): that essentially reflects our view of Ahsan. The insurmountable problem with (b) is that it ignores, or requires the respondent to disregard, any and all intervening events between the wrongful decision and a subsequent grant of leave however long into the future that may occur. It renders, in the words of the applicant’s skeleton argument, “irrelevant” and “wholly immaterial” the applicant’s immigration history between 2015 and 2024, including making an unmeritorious asylum claim and absconding. To accept the applicant’s approach would, on the facts of the present case, result in what Mr Biggs aptly described as “an unprincipled and unjust windfall”. For reasons we have previously set out, that cannot have been, and was not, the intention behind what was said in Ahsan.

40. We turn to Hossain. Judge Neville held that when exercising her discretion, the remedial effect of Ahsan required the respondent to treat an individual as though they had continuous lawful residence (by virtue of section 3C leave) if they had made an in-time application for further leave which was then wrongfully refused on the basis of what later transpired to be an erroneous allegation of dishonesty when obtaining an English language test certificate (that refusal constituting the historical injustice): that was because once the wrongful decision was treated as not having been made, the extension application fell to be treated as outstanding. On the reading of Hossain urged upon us by the applicant, absent the possibility of, for example, serious criminal offending (which did not arise in Hossain and does not apply in the present case), Judge Neville regarded intervening events during the period of 3C leave between the wrongful decision and a later grant of leave following successful appeal to the First-tier Tribunal as immaterial. If that is the correct reading of Hossain, we respectfully disagree with it. Having said that, we have some doubts that the approach adopted by Judge Neville was as suggested by the applicant. It may in fact be the case that, in light of the particular facts, Mr Hossain had continuing section 3C leave throughout the relevant period and that, on a fact-sensitive approach and having ‘expunged’ the decision containing the erroneous allegation of deception, he had accrued the necessary 10 years’ continuous lawful residence by the time the respondent considered her discretion.

41. On our understanding of what was, and what was not, intended by Ahsan, we do not have a difficulty with the conclusion that section 3C leave should in principle be treated as having continued if an in-time application had been made by an individual prior to the expiration of their previous leave and prior to a decision being made on that application (taking into account any appeal). That would logically and legally flow from treating the wrongful decision as not having been made in the first place. Where we would part company is in relation to the conclusion that events occurring during the period of 3C leave should be left out of account, that being the clear submission put forward by the applicant, with heavy reliance on Hossain. In addition, it appears to us as though there is a danger of Ahsan and Khan being read too expansively. The outcomes in the appeals being considered were fact-specific, that being particularly so in the Khan litigation. The only principle of general application was confined to the effectiveness/appropriateness of judicial review in respect of an allegation of dishonesty, as opposed to an in-country right of appeal.

Applying our analysis to the applicant’s case
42. On what we consider to be the correct approach and in order to decide whether the respondent’s decision in this case is unlawful, we need to look at the applicant’s immigration history on the basis that the 2015 curtailment decision should be treated as if it had not been made. In addition, it is important not to lose sight of the fact that the applicant accepted all along that he was unable to meet the requirements of the Rules: instead, he was relying on the respondent’s exercise of discretion outside of the Rules.

43. The applicant’s Tier 4 General Student leave ran from 9 October 2013 until 30 July 2015. If the 2015 curtailment decision had not been made, his application of 21 July 2015 (based on Article 8 and treated as a human rights claim) would have been in-time.

44. We note that the applicant could at that time have made an application for further leave as a student at another institution, or attempted to switch categories by applying as a Skilled Worker. The applicant’s submission that it is “eminently possible” that he would have continued to higher education and obtained further leave as a Tier 4 student is therefore not supported by what he in fact sought to do (we note that evidence given in the 2019 appeal indicated that the continuation of studies would at least arguably not have been a realistic prospect).

45. The 21 July 2015 application was not decided prior to the expiry of the original leave and so that leave would have been extended by virtue of section 3C.

46. That application/human rights claim was refused and certified on 23 December 2015. The applicant contends that this decision was also unlawful and should be treated as if it had not been made. The decision did not rely on the allegation of cheating and if the respondent had disclosed the true basis on which the 2015 curtailment decision was founded, certification would not have been a lawful course of action. That contention in effect relies on an historical injustice by omission, namely the respondent’s failure to have disclosed the full picture. It overlooks the fact that the applicant did not at the time opt to challenge the certification by way of judicial review, as he could have done. It also overlooks the point raised by Mr Biggs’ skeleton argument that if the applicant had been given an in-country right of appeal by the December 2015 decision and had exercised it armed with information on the 2015 curtailment decision (assuming that proper disclosure had taken place), a successful outcome would only have resulted in him being granted 30 months’ leave, far short of the leave he now claims to have accrued. However, even if we were to put aside those potential obstacles in the appellant’s path, there are more fundamental difficulties arising from the applicant’s 2018 application and the subsequent appeal.

47. Before addressing those difficulties, we express our gratitude to Counsel for the helpful post-hearing written submissions provided in response to our request for clarification on the question of whether the applicant’s asylum and human rights claims of 8 June 2018 operated to vary the application of 21 July 2015. These supplemented what had already been said in the skeleton arguments and in oral submissions.

48. In brief summary, Mr Biggs submitted that, in light of the Rules and policy guidance in place at the relevant time, the asylum and human rights claims of 8 June 2018 constituted an application which varied the application made on 21 July 2015. The applicant had sought leave to remain on the basis that he was a refugee and/or that removal would violate Article 8 rights and the 2018 application had been validly made. On any view, the dismissal of the applicant’s appeal in 2019 brought his section 3C leave to an end.

49. Mr Lewis accepted that the 2018 application operated as a variation of the July 2015 application. However, he submitted that the human rights claim (which underpinned the 2015 application) had remained outstanding and that the respondent was under a “continuing duty to consider the historical injustice of her own motion.” That obligation applied to the 2018 decision and as part of the respondent’s duty not to mislead the First-tier Tribunal in respect of the subsequent appellate proceedings.

50. For the following reasons, we broadly agree with Mr Biggs’ position and conclude that the applicant’s section 3C leave did come to an end by virtue of the final determination of his appeal in 2019.

51. First, for the sake of argument, let us assume that the applicant is correct in asserting that the certification decision of 23 December 2015 was directly linked to the wrongful 2015 curtailment decision and should be treated as though it had not been made. The effect of that would be that the application made on 21 July 2015 remained outstanding and the applicant continued to have section 3C leave.

52. Second, again for the sake of argument, let us also put to one side the fact that the applicant then absconded. Having said that, in our view this was a consideration to which the respondent was rationally entitled to have regard when exercising her discretion.

53. Third, we accept that an asylum and/or human rights claim is conceptually different from an application for leave. The former does not necessarily require the latter: MY (Pakistan) v SSHD [2021] EWCA Civ 1500; [2022] 1 WLR 238, ,at [39] and Ahsan, at [14].

54. Fourth, in the first instance we agree with Mr Biggs’ submission that the asylum and human rights claims made on 8 June 2018 constituted an application because as a matter of substance the applicant was seeking leave to remain, that application was valid, and it had the consequence of varying the application of 21 July 2015. That varied application was decided by the respondent on 6 December 2018 and the subsequent appeal was finally determined on 6 June 2019. Thus, the section 3C leave came to an end on that date and there was a significant gap in continuous lawful residence between 2019 and the subsequent grant of leave on 22 April 2024.

55. Fifth, if we were wrong to conclude that the asylum and human rights claims constituted an application, it cannot sensibly be said that the respondent’s decision of 6 December 2018 did anything other than refuse the applicant’s asylum and human rights claim, whether varied or not. In respect of the latter, there was no substantive difference between what the applicant put forward in 2015 and what was relied on in 2018 (and in the subsequent appeal). To conclude that the 2015 human rights claim had not been validly decided by the respondent would represent an unjustified triumph of form over substance.

56. Sixth, and following from the above, whilst the applicant was not at the time fully appraised of the true basis on which he had been prevented from continuing with his studies in 2014, the 2018 application/human rights claim and, importantly, the subsequent appeal, provided him with the clear opportunity to raise his discontent with what had occurred, albeit without being in possession of the full picture. If he had done so, he could have sought disclosure of Home Office information (contained, for example, in the GCID records) during the appellate proceedings. Yet, having perused the respondent’s refusal decision of 6 December 2018, the applicant’s witness statement of 15 February 2019, and the First-tier Tribunal’s decision of 6 March 2019 (which comprehensively rejected all elements of the case), there is no indication whatsoever that this aspect of the applicant’s circumstances was relied on. Thus, we conclude that the applicant’s reliance on the alleged unlawfulness of the December 2015 decision takes his case no further. In short, any causal link between the historical injustice which might have infected the December 2015 decision was broken as result of the 2018 application and the 2019 appeal.

57. On that analysis, the applicant’s “very simple” contention that the respondent should have treated him as if he had had section 3C leave throughout the entire period between 2015 and 2024 is unsustainable. So too is his contention that the application and/or human rights claim of 21 July 2015 was “never validly decided”: it was - by the December 2018 decision.

58. We turn next to the contention pursued at the hearing by Mr Lewis that there was in effect an ongoing historical injustice running from the decision of 29 November 2024 through to the disclosure of the GCID records in January 2021, which prompted the application for indefinite leave to remain on 27 September 2024. This ongoing historical injustice formed the basis of the contingent submission that the respondent remained under a continuing duty to consider the historical justice of her own motion and that her failure to do so had the effect that the applicant’s section 3C leave continued until the final determination of his second appeal in 2024, thus permitting him to rely on 10 years’ continuous lawful residence.

59. At first glance, we see some force in that position. The respondent’s (mis)conduct was pronounced over the course of a significant period of time. The true state of affairs regarding the decision taken in November 2024 did not fully come to light until January 2021. It may be said that there was indeed a continuing injustice throughout that period.

60. However, these are judicial review proceedings, not an appeal. It is important to examine how the applicant’s case has been pleaded.

61. The covering letter to the application for indefinite leave to remain omits mention of the 2018 application/asylum and human rights claims and the subsequent appeal. In reliance on the 2024 First-tier Tribunal decision, it asserts that the applicant’s leave to remain had continued from the date of the 2015 curtailment decision until the date on which he was granted leave as a result of his successful appeal in 2024. It says nothing about the scenario in which there was no section 3C leave, but nonetheless the respondent should have exercised discretion on an exceptional basis in light of the historical injustice.

62. The pre-action protocol letter, dated 12 December 2024, again asserts that the applicant’s section 3C leave continued from 2014 through to 2024 and again nothing is said about the exercise of discretion in the absence of such leave.

63. The original grounds of challenge assert that the respondent’s exercise of discretion was unlawful because she had failed to treat the applicant “as if” he had section 3C leave between 2014 and 2024, relying on Ahsan and the proposition that he should have been placed into the position he would have been in but for the erroneous curtailment of leave. As mentioned earlier in our judgment, the applicant’s case was put squarely on the basis that the only rational approach was to treat the section 3C leave as having continued throughout and that events occurring between 2014 and the 2021 application were “largely irrelevant.” Nothing was said about an ongoing or continuing historical injustice which encapsulated the 2018 and 2019 events and their impact.

64. The amended grounds added what was in effect a challenge to the December 2015 decision but otherwise maintained the position that subsequent events were beside the point when it came to the exercise of discretion.

65. The applicant’s skeleton argument reiterated the assertion that the applicant’s section 3C leave had to be treated as if it had continued throughout, that intervening events were “wholly immaterial” and “irrelevant”, and that the 2015 application/human rights claim had never been validly decided.

66. As alluded to earlier, it was only during the course of argument at the hearing that Mr Lewis contended that there had been an ongoing historical injustice beyond the challenged2015 decisions and that what took place in 2018 and 2019 was an aspect thereof.

67. In response, Mr Biggs made what we consider to be a fair and decisive point, namely that the applicant’s case had not been expressly put forward on the basis of an injustice which continued all the way from the November 2014 decision through to 2024. Given the common ground that the only basis for challenging the respondent’s decision on the indefinite leave to remain application was that of irrationality, Mr Biggs submitted that she had been entitled to consider that application in light of what had been put to her and it was not open to the applicant to now expand the scope of his challenge.

68. We agree with Mr Biggs’ position. Whilst it may not appear particularly attractive given the background, it was incumbent on the applicant to put his case in clear terms from the outset and thereafter. In our view, it is not open to the applicant to now argue that what happened in 2018 and 2019 was part and parcel of an ongoing historical injustice.

69. We now bring together everything we have said so far and apply it to the respondent’s decision of 29 November 2024. The relevant passage of that decision follows a recitation of the applicant’s immigration history:

“You have raised the issue of your leave being curtailed incorrectly, however, even if we had not curtailed your leave and if we classed the 21 July 2015 application as in time, this was refused with out of country appeal right, so any leave would have ended then. Your next application was also refused. Therefore, you would have had a gap either way irrespective of the TOEIC issue. The Immigration Judge is clearly stated we cannot revert back to the date leave was curtailed (sic) too and there are gaps and out of time applications that cause you to have breaks in your leave. Even if we reverted back to the curtailment date, you would still have gaps in your leave and therefore cannot meet the 10 year requirement.”
[Underlining added]

70. On a sensible reading of that passage, it is clear to us that the decision-maker adopted what, in effect, was an approach consistent with the one we have set out at [36], above. Even if we were to excise the reference to the out of country right of appeal (arising from what the appellant contends was a wrongful certification decision), the “next application” clearly refers to the 2018 application or, if that did not constitute an application, the asylum and human rights claims. That application and/or those claims were refused and, for the reasons we have given, the applicant section 3C leave ended upon final determination of the applicant’s appeal in 2019. The respondent’s conclusion that there was then a gap in continuous lawful residence was clearly rational, as was the conclusion that the gap existed notwithstanding the wrongful curtailment decision.

71. The decision then goes on to consider whether there were any factors warranting an exceptional grant of indefinite leave to remain outside of the Rules. The respondent was right to have referred herself to the relevant guidance on this issue. The bar against which she assessed the existence of “particularly compelling compassionate circumstances” and/or whether the applicant’s “individual circumstances are not just unusual but can be distinguished to a high degree from other cases” was undoubtedly high and has not been challenged before us.

72. Contrary to the applicant’s clear and narrowly-drawn submissions, we have already concluded that intervening events between 2014 decision and 2024 were relevant and treating the applicant as if he had had section 3C leave between 2014 and 2024 was not the only rational conclusion open to the respondent. In addition, the respondent was rationally entitled to take account of the applicant’s grant of limited leave.

73. Overall, and having regard to the particular way in which the applicant has put his case, the respondent’s exercise of discretion was rational. Accordingly, this application for judicial review fails.

74. We invite the parties to draft an agreed order which reflects the terms of this judgment.

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