Tribunal decisions

The decision

Case No: JR-2025-LON-002601
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

14 May 2026

Before:

UPPER TRIBUNAL JUDGE McWILLIAM

- - - - - - - - - - - - - - - - - - - -

Between:

THE KING
on the application of
HST
(ANONYMITY DIRECTION MADE)
Applicant
- and -

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

- - - - - - - - - - - - - - - - - - - -

Mr M Symes, instructed by Duncan Lewis Solicitors, for the Applicant

Mr P Erdunast, instructed by the Government Legal Department) for the Respondent

Hearing date: 5 March 2026

- - - - - - - - - - - - - - - - - - - -

J U D G M E N T

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Applicant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the Applicant, likely to lead members of the public to identify the Applicant. Failure to comply with this order could amount to a contempt of court

- - - - - - - - - - - - - - - - - - - -

Judge McWilliam:
Introduction
1. The Applicant, a citizen of Trinidad and Tobago, challenges the Respondent’s decision dated 7 May 2025 (hereinafter “the decision”) to refuse her application for a No Time Limit endorsement (NTL).
2. On 6 August 2025 Upper Tribunal Judge Canavan refused to deal with interim relief but directed expedition of the procedural timeline. On 25 September 2025 Upper Tribunal Judge Owens granted permission and the application for expedition but refused the application for interim relief.
The issues
3. The Applicant says that she was granted ILR by the Respondent in 1993 having entered the UK on 23 August 1989 and that her passport was endorsed accordingly. The Applicant contends that her passport was stolen in a burglary in or around November 2020. She became aware of this in January 2025 when she needed to confirm her immigration status. The Respondent destroyed the Applicant’s records in 2012 in accordance with policy guidance and has no record of the grant of ILR. The Applicant applied for an NTL endorsement which was refused by the Respondent. The Applicant contends that the Respondent adopted the wrong procedure when considering the application for an NTL endorsement. There are two grounds of review:
Ground one was recast as the Respondent having failed to apply a balance of probabilities approach when considering the application for an NTL endorsement. The approach taken was flawed in conventional public law terms because it was arbitrary and or failed to consider relevant considerations. (Mr Symes said that he was no longer relying on a rationality challenge and withdrew [70]-[74] of the ASA).
Ground 2: The Respondent’s decision not to apply a balance of probabilities approach when considering the application for an NTL endorsement amounts to Thlimmenos discrimination (Thlimmenos v Greece [2001] 31 EHRR) contrary to Article 14 ECHR taken with Article 8 ECHR.
The background
4. On 24 February 2025 the Applicant requested confirmation of her ILR status via the Home Office eVisa system. The Home Office response of the same date was that no immigration status records existed. As a result of the Applicant being unable to confirm her ILR status her benefits were stopped in late February 2025 and Universal Credit was refused.
5. On 1 April 2025 the Applicant’s solicitors contacted the Home Office detailing her immigration history and requested a manual verification of her ILR status. They said that the Applicant was vulnerable, disabled and has numerous medical conditions. As a result of not being able to confirm her ILR status she has suffered financial hardship. On 1 April 2025 a senior caseworker from the Home Office wrote to the Applicant stating that the Respondent had “recently changed our works database which stores individual case details. The previous system (CID) has been decommissioned and I cannot access that. The new system (Atlas) does not contain any details of your client”. The Applicant’s inquiry was forwarded to the Respondent’s Windrush Unit.
6. On 11 April 2025 the Respondent communicated to the solicitors stating that there was no ILR record and advising the Applicant to submit an NTL application. The communication stated as follows:
“On the 23 August 1989 your client was granted entry clearance as a student. This was valid until the 10 September 1991.
On the 23 September 1991 your client submitted a further change of condition application. This was granted on the 27 September 1991 valid until the 10 September 1992.
On the 28 October 1992 your client submitted a further change of condition application. This application was granted on the 16 November 1992 until the 31 December 1993.
You have raised the claim that your client has previously been granted Indefinite Leave to Remain in the UK. However, unfortunately she has lost her passport which contained her ILE wet ink stamp/vignette.
From looking at Home Office records, we have established that your client entered the UK on 23 August 1989 with entry clearance as a student. Unfortunately, this is the only record we have obtained in relation to your client. There are no further records to support the claim that she was granted Indefinite Leave to Remain here in the UK.
If your client believes that she has ILR or ILE but does not have a document to prove it, she can make a no time limit (NTL) application for confirmation of her status in the form of an eVisa. An eVisa is an online record of her immigration status. However, we cannot guarantee success under this route and your client should ensure she meets the necessary requirements”.
7. On 16 April 2025 the Applicant submitted an NTL eVisa application. She could not recall the exact date of the grant of ILR, but she gave a nominal date of 1 February 1993.
8. On 17 April 2025 the Applicant’s solicitors sent a PAP to the Respondent stating that there has been a failure to urgently confirm the Applicant’s indefinite leave to remain (ILR) status and create an eVisa account to verify this. The many medical conditions from which the Applicant suffers were set out in the letter. The Applicant’s solicitors stated that the “Defendant’s failure to act has caused serious detriment” and may amount to a breach of Article 3 ECHR. It was accepted that the Applicant does not fall within the formal eligibility criteria of the Windrush Scheme bearing in mind that she arrived in 1989, however it was said that the principles arising from the Windrush Lessons Learned Review remain relevant. The review calls for fairness and flexibility in assessing the status of long-term residents who lack documentation due to historical Home Office practices, and it emphasises the rigid evidential threshold which must not override the need to consider the full and factual context. It was said that the Respondent’s “inaction” constitutes an unjustified and disproportionate interference with the Applicant’s private and family life given her decades-long residence and dependence on public funds. It was said that there is a breach of Article 14 ECHR following from the Applicant’s disability and Caribbean origins. It was said that the Applicant failed to comply with her duties under Section 149 of the Equality Act 2010. The Applicant’s solicitors sent the Respondent, amongst other things, her medical records; letters from DWP; the Applicant’s driving licence and letters from the Home Office dated 24 February 2025 and 11 April 2025.
9. It was said by the Applicant’s solicitors that around 1993 the Applicant instructed a barrister who advised her to apply for ILR which was successfully granted in 1993 and endorsed as a physical vignette in her passport. It was said that the Applicant has lawfully received public funding including income support, disability living allowance, employment and support allowance and housing benefit, all of which have required proof of lawful immigration status. Moreover, she was also issued a UK driving licence. It was said that the evidence clearly demonstrates continuous lawful presence in the UK.
10. Following advice from the Department for Work and Pensions (DWP) in order to transition to Universal Credit, the Applicant attempted to locate her passport containing the ILR vignette. She then realised that it had been stolen during a burglary at her home several years earlier on or around 6 November 2020. The Applicant did not report her passport as stolen because she did not realise that it was amongst the stolen items. However, according to the Applicant’s neighbour officers from Uxbridge Police Station attended the address. When she discovered that the passport was missing in January 2025, she immediately contacted Uxbridge Police Station to report the loss. There was no original crime reference, but she was issued with a new one.
11. The Applicant says that she has suffered as a result severe financial hardship placing her at risk of losing her housing, essential medical care and carer support. The disability living allowance which is still paid to her is insufficient to cover her essential living and care costs.
12. On 16 May 2025 after the decision, the Respondent provided the Applicant with some of the digital records created since April 2025 following a Subject Access Request (“SAR”) under the Data Protection Act 2018. The Respondent stated, “we are unable to provide you with copies of your client’s paper HO file this is due to your client’s file having been destroyed some years ago under our routine file destruction policy.”
The Decision
13. The decision reads as follows:
“Our records indicate you have not previously been granted settled status. As you are unable to demonstrate that you have settled status in the United Kingdom, as a result, the Secretary of State is not satisfied that you are entitled to an NTL endorsement and therefore your application has been refused. You should note that a fresh application can be made at any time, but an application received before you have settled status in the United Kingdom is unlikely to be successful. To regularise your stay in the UK, please make an application for Settlement, more information can be found on the gov.uk website”.
The Relevant Guidance and Policy
No Time Limit (v.22.0; 13 May 2025) (“NTL Guidance”)
14. The relevant parts of the guidance read as follows: -
“About this guidance
This guidance tells caseworkers about no time limit (NTL) applications.
People who have indefinite leave in a legacy document, in a passport that is valid, lost, stolen or expired, or have no proof of their indefinite leave status, can have their indefinite leave transferred to an eVisa by making a no time limit application ...” (page 4 of 33).
Purpose of no time limit application
...
NTL is an administrative process by which a person with indefinite leave to enter (ILE) or indefinite leave to remain (ILR) can apply for confirmation of this status in the form of an eVisa. A person who has ILE or ILR is free of immigration time restrictions and considered to be ‘settled’ in the UK (if they are ordinarily resident).
A person may apply for NTL:
...
• if their passport containing an ILE, ILR or NTL endorsement has been lost, stolen or has expired
• where they are settled in the UK, but they do not have any documentary evidence confirming this (for example because they were deemed settled in the UK on 1 January 1973 in line with section 1(2) of the Immigration Act 1971)
...
No time limit: eligibility
This page tells you about whether a person is eligible to apply for a no time limit (NTL) eVisa.
Persons eligible to apply
In order to qualify for an NTL eVisa, the applicant must:
• have been granted indefinite leave to enter (ILE) or indefinite leave to remain (ILR) in the UK (other than under Appendix EU to the Immigration Rules), including those who were considered ‘settled’ in the UK on or before 1 January 1973 - note that customers with long residence may qualify under the Windrush Scheme
• ...
• continue to have and be entitled to ILE or ILR (for example the ILE/ILR has not been or will not be revoked)
• apply from within the UK using an NTL application form”.
No documentary evidence of indefinite leave
This page tells you how to consider cases where the previous passport is not included with the application or does not show the applicant has indefinite leave.
If the applicant does not include their previous passport, biometric residence permit (BRP) or immigration status document (ISD) or other form of evidence, you must check all available systems and files for evidence to show they have been granted indefinite leave. This includes the:
• relevant case-working system (CID whilst still in use, or ATLAS)
• central reference system (CRS)
• Home Office files
• visa application form (VAF)
You must also do this if the passport, BRP or ISD has been provided but it does not show that the applicant has indefinite leave to enter or remain.
If the applicant claims their previous passport, BRP or ISD was lost or stolen you must apply extra scrutiny to their case. Applicants are expected to provide a crime reference number or police report. If they do not, you must consider the reasons why it has not been provided and if you can still be satisfied that the document was lost or stolen. You must update notes on the relevant case-working system to show they have lost their passport or document. You must be satisfied the applicant is the same person who was previously granted indefinite leave.
You can grant the application provided you are satisfied the applicant:
• has indefinite leave
• has not lost this status
• is not otherwise ineligible”.
People who were settled in UK on or before 1 January 1973
This page tells you how to consider applications from people who were settled in the UK on or before 1 January 1973.
Under section 1(2) of the Immigration Act 1971, which came into force on 1 January 1973, persons who were ordinarily resident and free of immigration time restrictions in the UK on this date are treated as having been given Indefinite Leave to Enter or Remain (ILR) when the Act came into force, unless they were either:
• exempt from immigration control on this date
• had the right of abode in the UK.
As long as the applicant has continued to reside in the UK and has not had their indefinite leave revoked, and is not otherwise ineligible, they will have retained their status. If a person who was settled in the UK before 1 January 1973 wishes to have their status documented and confirmed, they can apply to the Windrush Scheme.
If the person has not already been granted ILR, they should provide evidence they were present and settled in the UK on 1 January 1973 and have continued to reside here since. Evidence may include official correspondence. As these applicants are stating they have been in the UK for a long time it is important you treat these cases in a careful and sensitive manner. The applicant must be given every reasonable opportunity to provide evidence to support their claim.
For example, if the applicant is struggling to provide sufficient evidence in support of their application, any circumstances that may indicate, on the balance of probabilities, that they were settled in the UK on 1 January 1973 should be taken into consideration. This could include if they got married or raised a family in the UK before this date. Evidence will be assessed on a case-by-case basis and throughout the process of engagement with the applicant, you may exercise discretion in their favour where appropriate.
...”
The Guidance, Windrush Scheme: full eligibility details”, updated 1 November 2024 (“Windrush scheme”)
15. The Windrush scheme sets that those eligible within the UK (I have referred to these as Group one, two and three) they are:
a. Commonwealth citizen who was either settled in the UK before 1 January 1973 and has been continuously resident in the UK since their arrival or has the Right of Abode (Group one).
b. A Commonwealth citizen who was settled in the UK before 1 January 1973, whose settled status lapsed because they left the UK for a period of more than 2 years, and who is now lawfully in the UK and who has strong ties to the UK (Group 2)
c. A person of any nationality, who arrived in the UK before 31 December 1988 and is settled in the UK (Group 3)
The Windrush Scheme: caseworker guidance (v.8, 1 November 2024) (“the caseworker guidance”)
16. The intention behind the scheme is set out as follows: -
“The Windrush Scheme has been introduced to enable people who originally came to and settled in the UK prior to 1 January 1973 from Commonwealth countries as part of the ‘Windrush generation’ and their children, to obtain proof of their immigration or settled status, or apply for British citizenship free of charge. These are people who are, or have in the past been, continuously resident in the UK, but because of the law applying at the time of their arrival, did not need a formal grant of leave and may not have, since then, obtained proof of their immigration status.
The Windrush Scheme also allows for certain people who are nationals of countries other than the Commonwealth, who arrived in the UK before 31 December 1988, who are not British citizens and are settled but no longer hold proof of their lawful status, to make an application free of charge for proof of their immigration status.”
17. The guidance sets out as follows:
“Group 3: people of any nationality, who arrived in the UK between 1 January 1973 and 31 December 1988 and who have settled status Those in this group are people of any nationality in the UK (including those defined in this guidance as Commonwealth citizens) who entered the UK lawfully between 1 January 1973 and 31 December 1988, who have ILE or ILR.
…
Those in the UK who wish to prove their settled status
People in this group who would like to prove they have ILE or ILR, can have their settled status confirmed for free.
When deciding an application on this basis, you should refer to the following guidance which sets out the policy on no time limit applications:
• no time limit - GOV.UK
• no time limit - internal
Where you believe, on the balance of probabilities, that the person has ILE or ILR, you will confirm a person’s settled status by way of issuing a grant of NTL”
Under the heading “Deciding Windrush Scheme Applications” [Auth.B1341-1392] the following is stated
“…
You must take a rounded view where evidence is not provided that proves matters of fact and decide the case on balance of probability, taking into account the picture of life in the UK, evidence in the round and criminality. However, no information provided in relation to an application under the Windrush Scheme will be passed on to Immigration Enforcement.”
Preliminary matters
18. Paragraph three of the case management directions issued to the parties say that skeleton arguments must be concise and not exceed twenty pages and that the trial bundle must comply with the Guidance Note on CE File and electronic bundles. The ASA drafted by Counsel comprises thirty-five pages. The Applicant filed a bundle which is in four parts labelled Tab A, Tab B, Tab C and Tab D. There are no digital hyperlinks. It does not comply with the Upper Tribunal Immigration and Asylum Chamber: Guidance Note on CE File and electronic bundles. The system of numbering comprises a letter and a number which the guidance explicitly says should never be used. The consequences of the breach of directions and failure to comply with the Guidance Note is a waste of judicial resources. The solicitors are reminded of the importance of procedural rigour in public law proceedings: R (Talpada) v SSHD [2018] EWCA Civ 841 per Singh LJ at [67] – [69] and the overriding objective and obligations on the parties under Rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
19. The Applicant served a response to the Respondent’s acknowledgment of service on 29 August 2026. There was no paid application. However, Mr Erdunast did not object to its admission, and I have taken it into account.
20. On 25 February 2026 the Respondent made an application to adduce a witness statement from Dan Revill-Crookes dated 25 February 2026. There was an application in response by the Applicant seeking to rely on two witness statements from the Applicant. Neither party objected to the admission of this evidence. Mr Symes did not pursue an application to seek disclosure of information by the DWP confirming that the Applicant was in receipt of benefits as early as 1995.
21. Mr Symes made an application to anonymise the Applicant. Having regard to the Guidance Note 2022 No 2, Anonymity Orders and Hearings in Private, I make an anonymity direction. While I appreciate that the revelation of a medical condition will not normally require the making of an anonymity order, I have considered the extensive history of the Applicant’s medical history, and I have decided that the need to protect her rights outweighs the principle of open justice.
Post hearing communication
22. On 12 March 2026, after the hearing, Mr Erdunast emailed the Tribunal to make a correction in respect of the policy that applied in 2012 when the Applicant’s file was deleted. The SGD said that the Applicant’s file was destroyed pursuant to the Respondent’s Knowledge and Information Management Unit Policy and Corporate Retention Schedules. The result of further enquiries is that the SSHD has obtained: (1) the operational file retention policy as at 2011 (original version issued in 2010) (it is not clear if this version was applicable in 2012 but enquiries have turned up nothing further); (2) the UKVI immigration case file retention policy in 2015; and (3) the full current 2016 policy. All three have been provided to the Tribunal.
23. The email goes on to state that all three versions of the operational policy provide that registered Applicant files will be retained for 15 years from the date of last action, i.e. the same as the retention schedules relied upon in the SGD (2011 policy: p.28; 2015 policy; 2016 policy, p.41). In respect of ILR, there is an exception where the subject is a national of a country that currently requires a visa to enter the United Kingdom and has acquired ILR. Then the retention period would be 25 years from the date of the grant of ILR. It is noted that HSJ is not a national of a country that was on the visa nationals list in 2012, as Trinidad and Tobago was added to this list in 2025 (HC 733, Statement of Changes to the Immigration Rules, 12 March 2025). While the Respondent cannot provide certainty on whether the policy as at 2011 applied in 2012, or whether it was a different version, if a different version did apply, it appears highly likely given that there were no changes in this regard from 2010 until today’s policy, that the same provisions in substance applied in 2012.
24. The reference in the SGD to the corporate policy was in error; however, it remains the Respondent’s position that the the substantive points that the destruction of the Applicant’s file in 2012 occurred because no action had occurred on the file in the last 15 years, and that destruction was in line with policy, remain accurate.
25. The Applicant’s solicitors were copied into the email from Mr Erdunast. There was no response from them as of 15 April 2026 when I issued a direction giving the solicitors until 20 April 2026 to respond should they wish to.
26. There was no timely response to the direction; however, on 22 April 2026 the Applicant’s solicitors communicated with the Tribunal indicating that they considered that there was no need for a response.
Conclusions
27. I heard submissions from the parties. I engage with these and the parties’ skeleton arguments in my conclusions.
Ground 1
28. It had been argued by the Applicant that the NTL guidance need not be construed as simply drawing a bright-line distinction between pre 1973 arrivals and applicants who arrived subsequently. However, at the start of the hearing I drew Mr Symes’ attention to the NTL guidance under the heading “People who were settled in UK on or before 1 January 1973”. Mr Symes then indicated that the Applicant no longer relied on the rationality challenge set out at [70]- [74] of the ASA.
29. Mr Erdunast queried the grounds of review in the light of the last-minute withdrawal of the rationality challenge which was within ground one. Mr Symes said that both grounds are premised on the contention that the application for an NTL endorsement should have been assessed on the balance of probabilities. There was no discrete challenge to the substance of or the outcome of the decision. The challenge was confined to the decision-making process. Mr Symes contended that had a balance of probabilities assessment been carried out then the Respondent might have accepted that the Applicant had settled status in the UK, bearing in mind the evidence submitted with her application. In my view the challenge is one of procedural unfairness and is therefore a ground of challenge in judicial review proceedings.
30. Persons making an application under the Windrush Scheme who fall within the Windrush Scheme groups (one-three) are entitled to their applications being decided on the balance of probabilities. The Applicant is not in the Windrush Scheme groups which is accepted by Mr Symes, and she has not made an application under the Windrush Scheme.
31. The NTL guidance makes a distinction in the way applications for an NTL endorsement are processed between applicants who were settled in the UK on or before 1 January 1973 (Groups one and two of the Windrush Scheme Groups) whose applications should be considered on the balance of probabilities and those who were not. The NTL guidance says that that the former were deemed to have ILR when the Immigration Act 1971 came into force, so their status was not documented. The distinction made in the NTL guidance is in my view entirely rational. It does not entitle those who arrived after January 1973, including those who arrived up to 31 December 1988 (Windrush Scheme Group three) to an assessment on the balance of probabilities. In any event, there is no challenge to the guidance.
32. The thrust of ground one, as it evolved at the hearing, is that the Applicant’s circumstances are analogous to those faced by the Windrush generation and therefore the Respondent should have applied a balance of probabilities test to her evidence. Mr Symes contended that her situation is analogous to those for whom accurate records were not kept. It was contended that while the Respondent stressed the absence of records of any ILR grant, regardless of whether there was a record, the Respondent’s policy on document retention would have compelled their destruction. Mr Symes contended that the absence of a retained record on the Respondent’s file was the sole and determinative issue underlying the decision.
33. Mr Symes relied on R (Hussain) v SSHD [2012] EWHC 1952 (Admin) at [46] (cited in Gurung [2025] UKUT 90).
“There is an established principle of public law that “all persons in a similar position should be treated similarly”, see Stanley Burnton J in R (Middlebrook Mushrooms Ltd) v Agricultural Wages Board of England and Wales [2004] EWHC 144 at [74], quoting Lord Donaldson MR in R(Cheung) v Hertfordshire County Council, The Times 4 April 1998. Any discretionary public law power “must not be exercised arbitrarily or with partiality as between individuals or classes potentially affected by it,” see Sedley J in R v MAFF, ex parte Hamble Fisheries [1995] 2 All ER 714 at 722a-b. One reason for that rule is that it provides consistency in decision making, and some certainty about the application of rules.”
34. I reject the submission that the Applicant is in a similar position to those in Windrush Scheme Groups one and two for whom accurate records were not kept and who were not given a document. I accept Mr Erdunast’s contention that the routine and lawful destruction of the Applicant’s file and not lack of proper record keeping of her ILR status is the operative reason why there is no record of her status.
35. The Applicant relies on the similarities between her situation and the plight of the Windrush cohort and the need for better record-keeping and archiving, with reference to the report Home Office Lessons Learned Windrush Review and the Governments response to it. The Review follows the Windrush scandal concerning a group of British people who held what became CUKC (citizens of the UK and Colonies) citizenship and their children who came to the UK between 1948 and 1973. Although legislation from 1971 entitled people from the commonwealth who arrived before 1973 to the “right of abode” or “deemed leave” to remain in the UK they were not given documents and nor had the Home Office consistently kept records. Therefore, they had no way of proving their status. It is clear on a proper reading of this document that it is not about people like the Applicant who came to the UK after 1973 and who have been given documents which they have lost and where records were made by the respondent but because of the time lapse, they have been lawfully destroyed.
36. I find that there is a clear distinction between those who were deemed to have ILR when the Immigration Act 1971 came into force and so their status was not documented in the first place and those settled in the UK after 1 January 1973 who have been given a stamp or document. The Applicant’s case is that she was given a document/stamp to evidence ILR unlike those coming to the UK before 1973. The Applicant’s paper file was destroyed in 2012 in line with established policy. I do not accept that the Applicant is effectively in the same position as those for whom no records were kept. Whether a case worker forwarded the case at some point to the Windrush Team does not support the Applicant’s case. There had been no substantive consideration of the Applicant’s case at that time and the Applicant’s solicitors were likening her situation to the Windrush cohort.
37. I do not accept that the sole reason for the refusal of the application for an NTL endorsement was the Respondent having not retained a record of the grant of ILR. The Applicant could not produce her passport or a contemporaneous crime reference number relating to the burglary. The NTL policy allowed the Applicant the opportunity to submit evidence to support that she was granted ILR which she took.
38. Mr Symes contended that under the Windrush Scheme, Group three requires NTL recognition where the decision maker considers ILR is held on the balance of probabilities. This is correct; however, the Applicant does not fall into Windrush Scheme Group three. Mr Symes submitted that there was no reason for a cut-off date of 31 December 1988. Mr Symes contended that the Applicant was not relying on a “near- miss” argument in the context of that rejected in Noren v SSHD [2022] EWHC 2942 which he submitted is a case about substantive rights to status rather than procedural rights governing the determination of the Applicant’s status. However, the thrust of the submission is that had the Applicant came to the UK seven months before she did then she would have come within the Windrush Guidance. This can only be understood as a “near-miss “argument. There is no “near- miss” penumbra to the Windrush Scheme: see Noren at [49]. Moreover, there is no “near- miss” principle in general. In R (Rudi) v SSHD [2007] EWCA Civ 1326, Carnwath LJ considered a “near-miss” principle in the context of the respondent’s policy and said as follows:
….-
32. This argument is, in my view, based on a misconception. The Secretary of State is of course entitled to have a policy. The promulgation of the policy normally creates a legitimate expectation that it will be applied to those falling within its scope unless there is good reason for making an exception. So much is trite law. It is also trite law that the existence of the policy does not excuse the decision-maker from due consideration of cases falling outside it. However, the law knows no “near-miss” principle. There is no presumption that those falling just outside the policy should be treated as though they were within it or given special consideration for that reason.
39. Mr Symes’ skeleton argument relies on one part of [31] [ii] of Rudi but what is cited therein is not put into proper context. Moreover, the paragraph must be read with [32] of Rudi set out above. At [31][ii] Carnwath LJ is commenting on the statement by Collins J in Lekstaka v Home Secretary [2005] EWHC 745 (Admin) at [38] and says:
“… It is important to note that the court’s observation was not essential to its decision, and Mongoto was not referred to, let alone questioned. Collins J’s statement, on which the court relied, seems unexceptionable. It is saying no more, as I read it, than that the practical or compassionate considerations which underlie the policy are also likely to be relevant to the cases of those who fall just outside it, and to that extent may add weight to their argument for exceptional treatment. He is not saying that there arises any presumption or expectation that the policy will be extended to embrace them.”
40. In respect of the cut-off date of 31 December 1988, workability and administrative effectiveness require a line to be drawn somewhere. It is desirable to apply known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another: Huang v SSHD [2007] 2 AC 167. There is nothing arbitrary about the cut-off date. In any event, the policy itself is not the subject of challenge in these proceedings.
41. In so far as the Applicant relies on R (Hippolyte) v SSHD [2025] EWCA Civ 1493 to support that the that the Windrush Scheme’s existence and the terms of the NTL guidance demonstrate the imperative of flexibility when considering documentary proof of status, I have taken into account what was said by Singh LJ at [67]:
“In the present case, what the Appellant relies on is the well-known principle of non-fettering in public law. She does not submit, nor does she need to, that she should be granted ILR because of a “near miss” and she only just failed to qualify under the Windrush Scheme. Her submission is simply that the Secretary of State was required at least to consider exercising a discretion outside the rules in her case and failed to do so, as the Judge held”
42. Ms Hippolyte’s circumstances were different to those of the Applicant. The former made an application for settlement. She accepted that she did not come within the Windrush cohort but asked the respondent to exercise discretion in her favour outside of the guidance. Even if the Applicant’s submission is not properly characterised as a “near-miss” but rather relies on the principle of non-fettering in public law, there is no substance in it. While the Respondent could have considered the application outside of the guidance, the Applicant did not ask her to. It was not an argument that was advanced with any clarity before me, but in any event, I do not accept that the evidence upon which the Applicant relied in support of the application was such that it compelled the Respondent to make an assessment on the balance of probabilities outside of the guidance or compelled the Respondent to explain in the decision why discretion had not been exercised in the Applicant’s favour.
43. The ASA refers to the Respondent’s “refusal” to apply the balance of probabilities. However, there is no such refusal. The Applicant did not ask for discretion to be exercised. The application does refer to the NTL policy and an assessment on the balance of probabilities. The outcome of the decision is not the subject of challenge. The Applicant is legally represented, and her solicitors can be taken to be aware of the NTL policy and to be able to properly articulate what they are asking the Respondent to do.
44. The Applicant relies on Pankina v SSHD [2010] EWCA Civ 719 at [28] and the observations of Sedley LJ concerning the flexible nature of policy. These observations must be considered in context. The main issue in that case was the extent to which it was permissible for mandatory criteria relevant to the Points Based System to be contained in guidance rather than rules submitted to Parliament under section 3(2) of the 1971 Act. They concern the relationship between the immigration rules and policy.
45. In so far as the Applicant relies on ex p Doody [1994] 1 AC 531 and fairness, there is no properly articulated argument which identifies that the Respondent has not acted fairly by assessing the application in accordance with her own policy.
46. I observe that the decision is brief and that there is no reference in it to the evidence on which the Applicant relied in the application form of 16 April 2025 or the letter from her solicitors of 17 April 2025. However, there is no challenge to the substance of that decision. There is no challenge by the Respondent to the Applicant suffering from medical conditions including primary hyperparathyroidism and Hypercalcaemia, Type 2 Diabetes Mellitus, Osteoporosis, Hypertension, Oesophageal dysmotility, Severe chronic pain requiring opioid analgesia and neuropathic medication, severe depression and anxiety. There is no specific challenge to the Applicant’s benefits having been stopped. What is said by the Applicant is that had a balance of probabilities assessment been undertaken then the Respondent would likely have granted the Applicant an NTL endorsement bearing in mind the evidence that she relied on. That may be the case; however, the fact that the Respondent did not apply a balance of probabilities approach is not arbitrary. The decision is not procedurally unfair. The Respondent did not fail to take account of relevant considerations when assessing the application in line with her policy. There is no discrete challenge to the decision on the basis that the Respondent did not take into account the evidence from the Applicant.
Ground two
47. In R (DA) v Work and Pensions SC(E) [2019] UKSC 21 at [136] the Supreme Court set out the four questions that arise when considering Thlimmenos discrimination and said the following:
“136 Article14 of the Convention, as is well known, provides:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”
In deciding complaints under article 14, four questions arise: (i) Does the subject matter of the complaint fall within the ambit of one of the substantive Convention rights? (ii) Does the ground upon which the complainants have been treated differently from others constitute a status? (iii) Have they been treated differently from other people not sharing that status who are similarly situated or, alternatively, have they been treated in the same way as other people not sharing that status whose situation is relevantly different from theirs? (iv) Does that difference or similarity in treatment have an objective and reasonable justification, in other words, does it pursue a legitimate aim and do the means employed bear are reasonable relationship of proportionality to the aims sought to be realised (see Stec v United Kingdom (2006)43EHRR47,para51)The contention that the state has treated differently persons in analogous situations without providing an objective and reasonable justification”.
48. Article 14 ECHR is not a free-standing provision. It relates only to the enjoyment of one of the substantive ECHR rights. It does not require a breach of that substantive right, but it must have some relationship with a substantive right: see JCWI [2020] EWCA Civ 542 at [81] and [82] per Hickinbottom. At [86] Hickinbottom LJ said:
“… In my view, for the reasons I shall give, the point does not directly arise for determination in the appeal before us; but, in principle, I do not see why any conduct that interferes with a qualified substantive right such as those in article 8(1) should not fall within the ambit of that substantive right irrespective of whether it is justified; although, of course, in those circumstances the state may be able to show that, as well as its interference with the substantive right, its discriminatory conduct is also justified.”
49. It is contended that the Applicant has several serious medical conditions because of which she has been in receipt of public funding including incapacity benefit, Housing Benefit and Employment Support Allowance. It is contended by the Applicant that the Respondent’s failure to locate records of her extant grant of ILR has resulted in her benefits having been suspended, her landlord has commenced possession proceedings, and she is threatened with legal proceedings in respect of the non-payment of council tax. It is contended that the Applicant’s inability to prove her lawful status may jeopardise her local authority funded care arrangements and that her settled life in the UK is jeopardised.
50. The Applicant does not challenge a refusal to grant her ILR or even the refusal to grant an NTL endorsement. The conduct complained of is the failure to consider the application for an NTL endorsement applying the balance of probabilities. ILR is not granted by way of the NTL process. An NTL endorsement is an administrative confirmation of possessing ILR. It is difficult to see how the decision-making process has any relationship with the Applicant’s private or family life in the UK. The Applicant relies on Kuric v Slovenia [2013] 56 EHRR 688; however, that case concerned the erasure of the applicants’ permanent residence rights all of whom had private and family life in Slovenia within Article 8 at the material time. The Applicant relies on R (Johnson) [2016] UKSC 56 which concerns the denial of citizenship which was found to have an important effect upon a person’s social identity. While the Applicant has family and private life in the UK and I accept that a breach is not required to come within the ambit of Article 14, the discrimination alleged must have a relationship with Article 8. I do not find that the procedure adopted by the Respondent which is entirely in accordance with her own policy relates to the Appellant’s substantive Article 8 rights.
51. Mr Symes did not address me in his oral submissions on the Article 6 ECHR point raised at [81] of the ASA. As I understand the argument it is that the failure to adopt a balance of probabilities approach to the Applicant’s application would violate her Article 6 ECHR (in conjunction with Article 14) because it prevents people like the Applicant seeking a remedy (an assessment applying the balance of probabilities) without a legitimate reason while making such an assessment available to others in respect of the same type of actions. I reject this argument. The Applicant has not been prevented from seeking a remedy. She was able to make an application for NTL which was considered by the Respondent in accordance with her policy. For the reasons already given when considering ground one, there is a legitimate reason for giving those in Windrush Scheme group one a more favourable assessment. Moreover, the argument as advanced conflates the alleged discrimination with ambit. I note what was said by Hickinbottom LJ in JCWI at [87]:
… I find it difficult to see how the existence, nature and extent of any discrimination for the purposes of article 14 can logically (and without circularity) bear upon the ambit of any substantive right for those same purposes. They are, of course, relevant to justification but that is a different issue”
52. The application so far as it relates to Thlimmenos discrimination falls at the first hurdle. If this were not the case, it is said that the Applicant is a member of the group, “individuals who claim that they were granted ILR on or after 31 December 1988 but that the record of that grant has been lost or destroyed”. The comparator group is said to be, “individuals who claim to have acquired ILR by residence in the UK as of 31 December 1988”. (The Applicant changed her position from the grounds of review where it was contended that she is member of a group, (a) she is a person who arrived in the UK and obtained ILR at a time when R did not routinely keep records of ILR grants and/or has since that time destroyed and/or misplaced other records relating to ILR grants during that period; and (b) she is disabled)
53. Taking a wide view of “other status “under Article 14, I accept that the group identified could amount to “other status”. The Applicant says that as a person with this other status she has been treated in the same way as the generality of people who might apply under the NTL guidance, who would have been granted ILR in circumstances where the Respondent retained a copy of that grant. It is said that the Respondent should recognise this and assess applications by people in the Applicant’s position on the balance of probabilities.
54. Anyone making an application for NTL (who is not in Windrush Scheme group one and entitled to an assessment on the balance of probabilities) must satisfy the decision maker that they have been granted ILR as claimed. There may be people who (1) produce a passport and the Respondent has retained a record of the grant (2) people who produce a passport but the record of the grant has lawfully been destroyed in accordance with the Respondent’s policy (3) people who do not have a passport, but the Respondent has not destroyed records of the grant of ILR, say where it was granted within the last fifteen and (4) people like the Appellant who are not able to produce a passport (in the Appellant’s case she says that it was stolen in a burglary) and where a record of the grant has been destroyed in accordance with the Respondent’s policy.
55. In the absence of any wrongdoing by the Respondent, it is difficult to see why the Applicant should be treated more favourably than those in category (1)-(3). There is no properly identifiable justification for giving those in (4) a more generous assessment. The NTL guidance refers to applying extra scrutiny in the absence of a passport which is entirely rational. Where there has been evidence of a grant of ILR which is no longer available because it has lawfully been destroyed after fifteen years in accordance with the Respondent’s policy and or the Applicant has lost a passport of other document, it is entirely rational that more scrutiny should be applied to the application not less.
56. The similarity in treatment has an objective and reasonable justification. It is plainly in the public interest to maintain the integrity of the immigration system by ensuring that endorsements are only issued where ILR can be verified. It is proportionate to have in place policies which create a bright line cut off and for them to be interpreted in such a manner.
57. While I admitted the post-decision evidence produced by the Respondent and the Applicant, it is not material to this decision. It has no bearing on the issue of the fairness of the procedure adopted by the Respondent and whether it was discriminatory, on the basis of the case as advanced by the Applicant.
~~~~0~~~~