JR-2025-LON-003194

• Status of case: Unreported
• Hearing date: 22 Jul 2026
• Promulgation date: 06 Nov 2026
• Publication date: 12 Nov 2026
• Last updated on: 12 Nov 2026

The decision

Case No: JR-2025-LON-003194
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

2 November 2026

Before:

UPPER TRIBUNAL JUDGE RASTOGI

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

Between:

THE KING
on the application of
SHRISHTINA SHRESTHA
Applicant
- and -

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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

Mr M. Gill KC
(instructed by Lawmatic Solicitors), for the applicant

Mr R. Harland
(instructed by the Government Legal Department) for the respondent

Hearing date: 22 July 2026

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

J U D G M E N T

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

Judge Rastogi:

1. This judicial review concerns the respondent’s decision of 9 July 2025 to grant the applicant limited leave to remain for 30 months rather than indefinite leave to remain (“ILR”). She did so in circumstances where the applicant’s lawful stay in the United Kingdom was disrupted when she was accused of using a proxy in her English language test1, which the First-tier Tribunal (“FTT”) later found her not to have done. The applicant seeks to be put into the position she would have been in without that disruption. In other words, to correct an historical injustice (within the meaning of Ahmed (historical injustice explained) [2023] UKUT 165).

2. I have been assisted by a 642 page hearing bundle [HB]; an 870 page authorities bundle [AB], skeleton arguments and oral submissions from both advocates for which I am very grateful.

Background and Immigration History

3. As will be seen, the applicant’s specific immigration history assumes particular significance in these proceedings, so I set it out in some detail.

4. The applicant entered the UK on 15 October 2010 as a student with leave valid until 20 November 2011. She applied for an extension of leave on 1 November 2011 and again on 15 October 2013, on both occasions having provided evidence that she had taken an English language test and passed to the requisite standard. Her leave was extended until 24 February 2015. The applicant was served with a IS.151A section 10 notice dated 7 August 2014 which alleged she had used a proxy in her English language test taken on 18 September 2013. The applicant is said to have failed to attend reporting appointments in August and September 2014, and on 17 September 2014 she was listed as an absconder. On 6 October 2014 her leave was curtailed (“the curtailment decision”) when she was re-served with a revised section 10 decision (the August one having been withdrawn). This was the last date on which the applicant, in fact, had valid leave.

5. The applicant’s first judicial review challenge of the curtailment decision (“JR1”) was lodged on 11 March 2015 but struck out on 10 November 2015 when (on her case) her previous representatives failed to comply with directions. She maintains she did not know of this development until later. The applicant was detained on 29 February 2016 and claimed asylum on 4 March 2016. Her asylum claim was refused and dismissed on appeal by way of a decision of the FTT dated 20 June 2016. She was released from detention and granted temporary admission on 2 August 2016. After an unsuccessful appeal to the Upper Tribunal she became appeal rights exhausted on 22 November 2016.

6. On 31 May 2017 the applicant’s temporary admission came to an end because the respondent said she was not contactable, she had missed some reporting appointments and was listed as an absconder.

7. On 2 March 2021 the applicant applied for ILR on the basis of her long residence in the UK. That was refused on 4 April 2023 on the grounds she had used deception in her English language test. She successfully challenged this on appeal when, on 31 July 2024, FTT Judge Allen found that she had not used a proxy and, applying Ahsan v Secretary of State for the Home Department [2017] EWCA Civ 2009 observed she should be put back into the position she would have been in had her leave not been curtailed. On 18 November 2024 the applicant was granted limited leave to remain until 17 May 2027. She challenged this through a judicial review claim (“JR2”) which was settled by consent, but on 9 July 2025 the respondent again granted her limited leave to remain, but this time until 8 January 2028. This is the decision under challenge.

The Decision of FTT Allen

8. Given its importance to the issues for me to consider, I set out the relevant parts of the FTT’s decision in some detail, firstly regarding the appellant’s alleged use of a proxy.

“32. I find that the appellant has provided evidence which demonstrates that it is more likely than not that at the relevant time (September 2013) she had the English language skills needed to pass the TOEIC exam without the need for a proxy test taker. This is an individual who has taken English exams when at school in Nepal, has been interviewed in English by the respondent in relation to entering the UK in 2010 and passed an IELTS test in Nepal in 2009 and then again in the UK in 2011 and undertook and successfully completed studies in the UK in English (2010-2013). I find that the appellant is someone used to speaking English, taking exams in English, taking English language exams and was sufficiently confident to be interviewed in English in 2010.

33. I find it implausible that with all this experience and no issues having been raised with her English language abilities before, the appellant would suddenly decide to use a proxy test taker. I find this makes no sense and is implausible.

34. Having considered all the evidence provided, including the appellant’s oral evidence, I find that the appellant did not use a proxy test taker in her TOEIC test on 18 September 2013 but that she took and passed the test herself.”

9. The FTT then considered how the above findings applied to the Article 8 assessment and said as follows.

“41. Given my finding that the appellant did not use deception in her application dated 15 October 2013, then following the principles in Ahsan (cited above) the appellant should be placed in a position as if any removal decisions affecting her leave to remain had not been made. I find this significantly reduces the weight to be given to s117B(4) in the proportionality exercise.

42. I accept that the appellant’s private life was initially established when she had precarious status as a student and give this some weight, but I find and give significant weight to the fact that the appellant has been wrongly accused by the respondent of deception which brought her leave to remain to an end. I find that the appellant’s case can be said to have involved historical injustice as that term is described in Patel (historic injustice; NIAA Part 5A) [2020] UKUT 351 (IAC); [2021] Imm AR 355. The headnote of Patel2 (cited above) states:
………………..

43. Additionally, I have considered the respondent’s Educational Testing Service (ETS): casework instructions Version 4.0 published 18 November 2020 which state that:

“If the appeal is dismissed on human rights grounds but a finding is made by the Tribunal that the appellant did not obtain the TOEIC certificate by deception, you will need to give effect to that finding by granting six months leave outside the rules. This is to enable the appellant to make any application they want to make or to leave the UK.”

44. Given my finding that the appellant did not obtain the TOEIC certificate by deception the respondent’s position, according to their casework instructions, is that a period of leave will be granted.

45. I find that the circumstances of the appellant’s case are sufficiently compelling to outweigh the respondent’s public interest in controlling immigration. Additionally, given the respondent’s casework instructions, removal of this appellant would be disproportionate under Article 8 ECHR and the appeal is allowed.”

The Decision under challenge

10. The respondent refused the application for ILR on 9 July 2025 for the following reasons, as relevant:

“Consideration has been given to your application, it is noted that you following your entry to the UK on 15 October 2010 you had valid leave until 06 October 2014 when your leave was curtailed upon service of an IS. 151A notice.

It is therefore considered that you had no valid leave since 06 October 2014 until you were granted leave to remain on 18 November 2024. As a result you are unable to demonstrate 10 years continuous lawful residence in the United Kingdom and you are not able to satisfy the requirements of the Immigration Rules with reference to Paragraph 276B(i)(a).

Consideration has also been given to your application and whether it would be appropriate to exercise discretion in regard to the break in your lawful residence.

………………………..

It is noted that on 09 July 2024 it was found at appeal that you had not used deception to obtain leave, and therefore, your previous grant of leave to remain had been curtailed incorrectly, the Judge also stated that you should be placed in a position as if any removal decisions affecting your leave to remain had not been made. In this regard it is noted that you were granted limited leave to remain following your allowed appeal
and therefore it is considered that you were placed back in a position whereby you held leave in the UK. It is not however considered that it would be appropriate to exercise discretion to disregard the break in your lawful residence for the purposes of this application. In considering this, it is noted that you have not demonstrated that it is the events surrounding the ETS allegation that have prevented you from accruing ten years lawful residence in the UK.

It is noted that you sought leave to enter and remain in the UK as a student and this is not a route to settlement in the UK. Further, the judicial review application was struck out on 10 November 2015 due to your own failure to comply with directions and you were listed as an absconder prior to this on 17 September 2014. You did not make any further attempts to challenge the decision to curtail your leave on ETS deception grounds by way of a judicial review. You were recorded as an absconder after failing to comply with reporting conditions, and you did not submit any further applications to remain in the United Kingdom until you were encountered and detained by Immigration Enforcement in February 2016. Following your detention you lodged your asylum claim on 4 March 2016 and as detailed above this was ultimately unsuccessful.

Your temporary release in the UK also ended on 31 May 2017 because it had not been possible for the Home Office to contact you following your failure to report on 21 December 2016. You were therefore declared an absconder on 31 May 2017. It is therefore considered that you did not present yourself to the SSHD for just under four years and did not attempt to regularise your stay in the UK until the 2021 application for indefinite leave to remain.

Given the reasons above, that as a student you never had a legitimate expectation of being able to settle in the UK, and further, your absconding and general conduct avoiding contact with Home Office for several years, along with your failure to submit an application to regularise your stay for a number of years, it is not considered that it would be appropriate to exercise discretion over the gap in your lawful residence and grant you indefinite leave to remain.

However, based on the information provided the Home Office is satisfied that you meet the requirements to be granted leave to remain in the UK on the private life route for 30 months. You have therefore been granted permission to stay in the UK until 08 January 2028.”

Relevant procedural developments and the scope of the Grounds of Review

11. The applicant originally challenged the decision on two grounds but, following the service of the summary grounds of defence (SGD), the applicant sought permission to rely on a reply, or to amend her grounds of review to address a matter raised in the SGD.

12. Of relevance, paragraphs 7 and 10 of the SGD said:

“7. The Respondent draws the Tribunal’s attention to page 40 of the Guidance which provides how caseworkers should implement appeals [RB/40]. The last sentence on page 40 provides “However, if the applicant submitted an ILR application and the appeal has been won on both ETS and HR grounds proceed to grant ILR.”3 This wording, alone, would suggest the Applicant should have been granted ILR on the basis
her human rights and ETS appeal was allowed.

8. However, what is not provided in the Guidance, as it has been restricted for Home Office internal use, is a table that provides caseworkers with examples of leave grants when implementing appeals. This has been provided in the Respondent’s bundle attached to these submissions to discharge the duty of candour [RB/55-56]. The table provides that where the human rights claim is allowed (as is here), and the ETS decision is allowed (as is here), a grant of 30 months should be made. This is exactly what has been granted in this case. The Respondent confirms this table was considered when issuing the Applicant a grant of leave of 30 months on 09 July 2025 in the impugned decision.

9. Although the sentence on page 40 of the published Guidance suggests otherwise, the Respondent maintains the correct decision was taken with reference to the table on page 41 of the Guidance (which is restricted for Home Office use only [RB/56]). The Respondent therefore maintains the decision taken was lawful, rational, and well within the means of the Respondent.

10. Although this drafting is unfortunate, it is submitted the identification of such by the Respondent does not impact the lawfulness of the Decision in any way”.

13. By way of a reply to the SGD, the applicant said at paragraphs 4 and 5:

“4. Paragraph [7] of the summary grounds of defence candidly reads:
………………..
5. The Applicant submits that this should be sufficient for the Tribunal to be persuaded to grant permission.”

14. On 3 February 2026, Upper Tribunal Judge Norton-Taylor granted permission on all three grounds and directed that the applicant file her amended grounds of review as follows (of relevance):

“3…. I grant permission on the original grounds and in respect of [4]-[5] of the reply, which I consider to constitute an amendment to the original grounds in light of what is said in the summary grounds of defence and the unredacted policy guidance document contained in the respondent’s bundle.
………………..

5. Secondly, the tension within the respondent’s own policy guidance document (as candidly recognised in the summary grounds of defence at [7]) raises an arguable issue as to its lawfulness and/or its application in the applicant’s case, given that the First-tier Tribunal found that she had not cheated and allowed the appeal on Article 8 grounds.”

15. On 9 February 2026, in compliance with UTJ Norton-Taylor’s directions, the applicant made a paid application for permission to rely on the amended grounds. Therein, the applicant confirmed that Grounds 1 and 2 were as per the original grounds and she added Ground 3.

16. The standard directions provided for the applicant to apply to rely on a reply to the detailed grounds of defence (“DGD”) and to rely on further evidence within 14 days of the service of the DGD. They were served on 23 April 2026 (with permission to do so out of time).

17. On 8 July 2026 the applicant made a further application to amend her grounds (“the re-amended grounds”), albeit said to be on the basis that the grounds were not amended but, rather, being consolidated and shortened.

18. At my request, the respondent was asked to confirm by 20 July 2026 whether the application was opposed. Mr Harland confirmed it was. The respondent’s submission is that the applicant complied with Judge Norton-Taylor’s directions by serving the amended grounds and so it is those grounds that set out the scope of ground 3.

19. At the hearing, Mr Gill KC maintained that the re-amended grounds were shorter than the original grounds and submitted it is preferable if all grounds were contained within a single document. I have no quarrel with that. However, I do not accept that the draft re-amended grounds do that and nothing more. Although Mr Gill KC submitted there has been some shortening of the draft re-amended grounds, there is no indication by way of struck-out paragraphs, sentences or words to support that. Rather, the only obvious changes appear in red typeface and all seem to be additions to the amended grounds, particularly in relation to Ground 3.

20. There was a dispute between the parties as to what part of the re-amended grounds actually said. Mr Harland’s concern was that the applicant sought, for the first time, to challenge the lawfulness of the respondent’s reliance on redacted parts of policy guidance4. Such a challenge has significant ramifications for the respondent and, if it is to be made, clear and timely grounds would be required to permit the respondent a fair opportunity to gather evidence and present her case. Mr Gill KC confirmed this was not the applicant’s case at all, and he accepted there were many examples of where policy guidance can lawfully contain sections which are redacted or withheld from the published version. His position was that in this case, the respondent was not entitled to rely on unpublished policy to justify departing from her published policy which, on the applicant’s case, mandates the respondent to grant the applicant ILR and that ground 3 has always been drafted on this basis.

21. Mr Harland accepted that it is for the Tribunal to decide upon the meaning of the disputed policy guidance and, if the Tribunal agreed with the applicant’s version of its meaning, the respondent would have acted contrary to her own policy in not granting the applicant ILR. Of course, it was the respondent’s position that the disputed policy guidance means nothing of the sort, and it did not mandate a grant of ILR to someone in the applicant’s position.

22. I indicated at the hearing that, given Mr Gill KC’s clarification of Ground 3, I would not hear argument that reliance on redacted parts of policy guidance was of itself unlawful (in other words – the ‘secret policy’ argument).

23. I refuse the application to rely on the re-amended grounds for the following reasons.

24. Firstly, the application is late and no reason was provided in the application as to why it was late. If it purported to be submitted in compliance with standard directions it is late. In the event it is a free-standing application, there is no explanation for why it was not made until 8 July 2026 given that the DGD was available from 26 April 2026.

25. It was open to the applicant to raise the issue of the ‘secret policy’ in the reply to the SGD and/or the amended grounds and to raise the type of issues deprecated in Lumba v Secretary of State for the Home Department [2011] UKSC 12, but she did not do so. Accordingly, it is not in accordance with the overriding objective to raise such issues at such a late stage in the proceedings given the likely ramifications that would have on the respondent’s defence.

26. Secondly, the application form mischaracterised the nature of the re-amendments. The draft re-amended grounds cannot properly be characterised as consolidating and shortening the grounds for the reasons I have given at [19] above.

27. Thirdly, in the event that the applicant’s position is as Mr Gill KC put it and as I summarise at [20] above, then this is encapsulated within the amended grounds at paragraph [4] and [12] so the grounds do not need to be re-amended to capture that point.

The Grounds of Review

28. The three grounds of review (as contained within the original grounds (grounds 1 and 2) and the amended grounds (ground 3) rather than the re-amended grounds) can be summarised as follows:

Ground 1: Illegality/irrationality: the refusal to exercise discretion to grant ILR despite the accepted break in the applicant’s leave from 6 October 2014, was unlawful and/or Wednesbury unreasonable in light of: a) what the respondent said at Khan and others v SSHD [2018] EWCA Civ 1684; b) the binding findings of Judge Allen that the applicant should be placed in the position she would have been; c) the circumstances in which JR1 was struck out; d) the respondent’s failure to raise the ETS grounds in the asylum claim (and then raise it later) meaning there was no earlier opportunity to challenge the cheating allegation.

Ground 2: failure to consider material factors/give adequate reasons, in particular regarding the failure to pursue the ETS allegation in 2016; the applicant’s explanation about JR1 and the conduct of her former representatives; the fact JR1 was struck out before Ahsan was handed down.

Ground 3: the respondent’s failure to follow and apply her policy as set out at paragraph 7 of the SGD is unlawful applying, inter alia, Mandalia v Secretary of State for the Home Department [2015] UKSC 59. The respondent’s departure from the policy was not adequately reasoned thereby giving rise to a breach of legitimate expectation.

The Relevant Immigration Rules

29. Although strictly speaking the applicant does not meet the requirements of the Rules for a grant of ILR on the grounds of long residence, it is helpful to set out here what those requirements are. The requirements are found in Paragraph 276B of the Rules, which states:

“276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:

(i) (a) he has had at least 10 years continuous lawful residence in the
United Kingdom.
(ii) having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his:

(a) age; and
(b) strength of connections in the United Kingdom; and
(c) personal history, including character, conduct, associations and employment record; and
(d) domestic circumstances; and
(e) compassionate circumstances; and
(f) any representations received on the person's behalf; and

(iii) the applicant does not fall for refusal under the general grounds for refusal.
(iv) the applicant has demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with Appendix KoLL.
(v) the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. Any previous period of overstaying between periods of leave will also be disregarded where –
(a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or
(b) the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.”

Historical injustice

30. The context in which the respondent came to reconsider the applicant’s 2021 application for ILR was to reflect what the FTT had found to be an historical injustice in the applicant’s case arising from the respondent’s wrongful accusation of cheating which led to the curtailment decision. In order to address the question of what the respondent was required to do to give effect to the FTT’s direction that the applicant be placed in the position she would have been had that wrongful decision not been made, it is helpful to set out a few of the authorities on historical injustice.

31. The law on historical injustice (as distinct from historic injustice) was briefly explained in the headnote to Patel (historic injustice; NIAA Part 5A) [2020] UKUT 351 (IAC) 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.”

32. The judicial headnote in Ahmed (historical injustice explained) [2023] UKUT 165 (IAC) says:

“1. As is clear from the decision in Patel (historic injustice; NIAA Part 5A) [2020] UKUT 351(IAC), the phrase “historical injustice” does not connote some specific separate or freestanding legal doctrine but is rather simply a means of describing where, in some specific circumstances, the events of the past in relation to a particular individual’s immigration history may need to be taken into account in weighing the public interest when striking the proportionality balance in an Article 8 case. In relation to the striking of the proportionality balance in cases of this kind we make the following general observations:

a. If an appellant is unable to establish that there has been a wrongful operation by the respondent of her immigration functions there will not have been any historical injustice, as that term is used in Patel, justifying a reduction in the weight given to the public interest identified in section 117B(1) of the Nationality, Immigration and Asylum Act 2002. Although the possibility cannot be ruled out, an action (or omission) by the respondent falling short of a public law error is unlikely to constitute a wrongful operation by the respondent of her immigration functions.

b. Where the respondent makes a decision that is in accordance with case law that is subsequently overturned there will not have been a wrongful operation by the respondent of her immigration functions if the decision is consistent with the case law at the time the decision was made.

c. In order to establish that there has been a historical injustice, it is not sufficient to identify a wrongful operation by the respondent of her immigration functions. An appellant must also show that he or she suffered as a result. An appellant will not have suffered as a result of wrongly being denied a right of appeal if he or she is unable to establish that there would have been an arguable prospect of succeeding in the appeal.

d. Where, absent good reason, an appellant could have challenged a public law error earlier or could have taken, but did not take, steps to mitigate the claimed prejudice, this will need to be taken into account when considering whether, and if so to what extent, the weight attached to public interest in the maintenance of effective immigration controls should be reduced. Blaming a legal advisor will not normally assist an appellant. See Mansur (immigration adviser's failings: Article 8) Bangladesh [2018] UKUT 274 (IAC).”

33. As Patel recognised, one of the ways in which an historical injustice can be established is as a result of wrongful decision-making on the part of the respondent in the immigration context as discussed in Ahsan. Ahsan is of particular relevance in the present claim, as was the short judgment provided by the Court of Appeal following the approved consent order in Khan.

34. Ahsan was about the appropriateness or effectiveness of judicial review in respect of an allegation of dishonesty, as opposed to a right of appeal. Whilst that is different to the instant case, Ahsan is important because of what the Court of Appeal said the respondent needed to do in the event that a person had been found on appeal not to have cheated, contrary to an allegation that they had, with the consequence that leave was curtailed or a section 10 removal notice followed. At [120]-[121] Underhill LJ said:

“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.”

35. The most relevant paragraph from the short judgment in Khan is [37] which says as follows:

“37. Further, at para. 8 of the note, it was stated:

"Nonetheless, for the avoidance of doubt, the SSHD confirms that:

(i) For those individuals whose leave was curtailed, and where that leave would still have time to run as at the date of an FTT determination that there was no deception, subject to any further appeal to the UT, the curtailment decision would be withdrawn and the effect … would be that leave would continue and the individuals would not be disadvantaged in any future application they chose to make;

(ii) For those whose leave has been curtailed, and where the leave would in any event have expired without any further application being made, the Respondent will provide a further opportunity for the individuals to obtain leave with the safeguards in paragraph (iii) below.

For those whose leave had expired, and who had made an in time application for further leave to remain which was refused on ETS grounds, the effect of an FTT determination that there was no deception would be that the refusal would be withdrawn. The applicant in question would still have an outstanding application for leave to remain and the Respondent will provide them with a reasonable opportunity to make any further changes to their application which would be considered on the basis of them not having employed any deception in the obtaining of their TOEIC certificate, and they would in no way be disadvantaged in any future application they chose to make.

(iii) In all cases, the Respondent confirms that in making any future decision he will not hold any previous gap in leave caused by any erroneous decision in relation to ETS against the relevant applicant, and will have to take into account all the circumstances of each case.

However, the Respondent does not accept that it would be appropriate for the Court now to bind him as to the approach that he would take towards still further applications in the future, for example by stating that each applicant has already accrued a certain period of lawful leave. The potential factual permutations of the cases that may need to be considered are many and various. In some cases, for example, it will be apparent that, whilst on the facts as presented at the appeal an appellant's human rights claim is successful, he would not have been able to obtain leave at previous dates. Again, this issue will have to be dealt with on a case by case basis." (my emphasis)

The respondent’s guidance

36. In the context of ETS cases, the respondent has produced guidance for its caseworkers to assist them in various aspects of decision-making arising in ETS cases, including how to implement decisions made on appeals concerning such cases.

37. The guidance in force at the date of the decision under challenge was the ‘Educational Testing Service (ETS): caseworker guidance’, published on 19 June 2025 (“the ETS Guidance”)5.

38. The section headed ‘Implementing appeals’ at internal page 40 says as follows:

“It is important to highlight that not all ETS related appeals are allowed on the basis that cheating in a TOEIC (Test of English for International Communication) test was not proven. Often an appeal can be allowed only based on Human Rights grounds, but the Judge may determine that the appellant did or did not cheat in their ETS (Educational Testing Services) test:

• if an individual used an invalid / questionable TOEIC certificate in support of any application wins the appeal on Human Rights grounds only, then a grant of 30 months permission to stay should be implemented

• if there is a finding that the applicant did not cheat in the ETS test, and all other requirements are met, the applicant should for in-country applications granted a period of 6 month leave outside the rules, which, the applicant must then apply to extend their permission to stay under a category of their choosing or leave the UK. For out of country appeal the only appropriate remedy is to offer the individual a free entry clearance application once they have identified the most suitable route for them to return to the UK

• if there is a finding that the applicant did cheat in the ETS test, even if all other requirements are met, they must be placed on the 10-year route as they will still fail on suitability

However, if the applicant submitted an ILR application and the appeal has been won on both ETS and HR grounds proceed to grant ILR. “ (my emphasis)

39. The underlined paragraph is the disputed policy guidance for the purposes of Ground 3.

40. In the SGD the respondent also referred to an internal ‘table’ which is restricted to Home Office use (in other words it is redacted from and not visible within the published policy). It provides caseworkers with examples of leave grants depending upon different possible appeal outcomes. The full unredacted ETS Guidance was disclosed with the DGD. Therein at internal page 41 the table provides that for an in-country appeal where both the human rights claim and the ETS deception were allowed, a grant of 30 months leave is to be made under the Exceptions paragraphs of Appendix FM.

41. In light of that table, the respondent accepts that the drafting of the disputed policy guidance is “unfortunate”, and at [11] of the SGD, states that work is being undertaken to amend it “to reflect the correct position as noted on page 41”.

42. The respondent relies on the evidence of Ruhela Begum-Haqq dated 23 April 2026. She is a Senior Executive Office Technical Specialist within Work Services at the Home Office. Her role is mainly concerned with the ETS operational policy and she is the current “owner” of the ETS Guidance. She sets out a history of earlier versions of the ETS Guidance and then explains at [8] that:

“The intention behind the above section of version 5.0 of the guidance was that an applicant would still be required to meet the requirements of the Immigration rules for the relevant ILR route to be granted settlement.”

43. Following the present judicial review proceedings being brought to her attention, Ms Begum-Haqq clarified the aforementioned intention and amended the ETS Guidance accordingly. As of 10 April 2026 the published version 6.0 now reads:

“However, if the applicant submitted an indefinite leave to remain (ILR) application and the appeal has been won on both ETS and HR grounds, and all requirements of the relevant route have been met, proceed to grant ILR.” (my emphasis)

44. At paragraphs [37]-[38] of the DGD, the respondent set out an extract from previous versions of the ETS Guidance (versions 3.0 August 2020 and version 4.0 11 November 2020) dealing with what the respondent’s caseworkers should do in cases where someone “who has used an invalid …(TOEIC) certificate in support of an application wins an appeal on Article 8 grounds”. Both versions provide that, in that situation, the “grant of leave will depend upon whether the relevant rules are met”. The full version of the relevant part of the guidance is found at paragraph (6) of Ms Begum-Haqq’s statement. Version 3.0 and 4.0 of the ETS Guidance said as follows:

““Implementing appeal findings
If an individual who has used an invalid Test of English for International
Communications (TOEIC) certificate in support of an application wins an appeal on Article 8 grounds, then the grant of leave will depend upon whether the relevant rules are met. Usually, the individual will be on the path to 5-year settlement if the rules are found to be met and the 10 -year route if the appeal succeeds on the basis of the exceptions in Appendix FM.

Where in an appeal or judicial review there is a finding of fact that there was no ETS deception, and where the Home Office are not challenging the decision, then all ETS special condition flags must be closed on CID and any other database with the end date being the date of the determination by the court. You must amend the CID or other system note associated with the ETS flag to say “The allegation of association
with the ETS / TOIEC abuse was overturned by the First Tier Tribunal / Upper Tier in appeal ref: XXXX”.or JR ref xxxx .

For any other appeals that are allowed on the basis of Article 8 contact Appeals policy.

If the appeal is dismissed on human rights grounds but a finding is made by the Tribunal that the appellant did not obtain the TOEIC certificate by deception, you will need to give effect to that finding by granting six months leave outside the rules.

This is to enable the appellant to make any application they want to make or to leave the UK.” (my emphasis)

Discussion

45. Before returning to the specific grounds and the facts of this case, it is necessary to decide two matters. Firstly, what is the proper approach for the respondent to take according to Ahsan following a finding in a human rights appeal that someone has not cheated and when the appeal is allowed on human rights grounds. In deciding this issue, I will also consider Khan and Ahmed as relevant. The second matter is how the disputed policy guidance should be interpreted.

46. I have decided that it is necessary to take them in that order because, as will be seen, context is important to the question of interpretation. In order to identify the context of the ETS Guidance, it is necessary to consider what the correct approach to take is in historical injustice cases.

The approach to be taken following Ahsan

47. This has been the subject of a number of recent judicial review applications before the Upper Tribunal, most notably the unreported decisions in Hossain v Secretary of State for the Home Department JR-2024-LON-000328 and Malhi v Secretary of State for the Home Department JR-2025-LON-000290. To the extent it is necessary for me to consider granting permission to rely on unreported decisions in judicial review proceedings (and I am not sure it is), I permit the parties to rely on them.

48. As a postscript, whilst at the time of the hearing before me, the Court of Appeal had heard the respondent’s appeal in Hossain, judgment was recently handed down (15 October 2026) and Judge Neville’s decision in Hossain was set aside. I do not need to mention the Court of Appeal decision further given the way I have decided the case, but it is helpful to briefly set out the background to Hossain because of the way the case was presented before me.

49. The factual background to Hossain was very similar to the instant case whereby Mr Hossain was issued with a section 10 removal notice on the basis of TOEIC deception; a period of time elapsed during which there was some adverse immigration conduct including absconding; a human rights application resulted in a FTT decision that Mr Hossain had not cheated, and he was issued with leave to remain. Thereafter he applied for ILR which was refused for reasons which are very similar to the instant case. It was that refusal under challenge. The main point of difference in the factual matrices is that Mr Hossain had made an in-time application for leave which was refused at the same time as the section 10 notice was issued. It was Mr Hossain’s case that, as a result of the 3C leave, he had in fact accrued 10 years continuous lawful residence, but for the wrongful section 10 notice. In the instant case, the applicant could not have been covered by section 3C leave on the facts.

50. In very short order, Upper Tribunal Judge Neville decided at [29] that it was not open to the respondent to bring the appellant’s absconding into the continuous residence requirement of the Rules and accordingly he fell to be granted ILR by virtue of his continuous lawful residence. However, Judge Neville made the point at [29] that it was open to the respondent to consider the extent to which the requirements of 276A and 276B of the Rules were met on the grounds, for example, of whether criminality breaks the continuity of lawful residence (276A) or whether it would be considered undesirable to grant a person ILR, thereby protecting the privileged nature of ILR.

51. Mr Malhi had also applied for leave to remain following a curtailment decision which Mr Malhi said unfairly broke his continuity of lawful leave and which was then held against him when he applied for ILR. There was an underlying allegation of a questionable TOEIC certificate. This was not the express reason given for the curtailment decision, but the FTT found that to have underpinned the curtailment decision and found the respondent’s conduct had deprived Mr Malhi of the opportunity to clear his name. The FTT found this to amount to exceptional circumstances and allowed the appeal on human rights grounds. The respondent subsequently granted Mr Malhi 30 months leave to remain. Prior to the expiry of that leave Mr Malhi applied for ILR on the basis that he had, or should be treated as having, 10 years continuous lawful residence. The respondent refused that application on the basis that there was a break in the lawful residence. She refused to exercise discretion to treat it as unbroken on the basis that he had gaps in his lawful residence irrespective of the TOEIC issue, and that he had not shown exceptional circumstances to justify departing from the general principle of granting 30 months leave (not ILR) on the basis that settlement is a privilege not an automatic entitlement. It was his challenge of that decision that came before the Upper Tribunal on the issue of historical injustice.

52. Having examined Ahsan and Khan, the panel of the Upper Tribunal in Malhi (“the Panel”) set out the following summary of what the correct approach to historical injustice should be in light of them. From [32] the Panel made the following observations of note as to what that approach should be (summarised):

i. the core point arising from [120] of Ahsan is nothing more or less than that of remedial effectiveness, applied in a sensible and realistic manner;

ii. “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 i.e. to ‘restore’ the individual to the position they would have been in but for a historical injustice;

iii. ”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”;

iv. 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”;

v. if the above steps could sensibly/properly place the individual in “substantially the same position” but for the erroneous curtailment decision (i.e. if it had been quashed), that should be taken into account in deciding whether a human rights appeal constituted an appropriate alternative remedy to judicial review;

vi. [121] of Ahsan simply reflects that extraneous circumstances may apply in any given case;

vii. 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 and should be the period targeted by the remedial effectiveness. If there is a gap in leave caused by a wrongful decision the respondent should not without more rely on that gap when asked to exercise discretion outside of the Rules;

viii. Ahsan did not suggest that all events occurring after the curtailment decision should be disregarded by the respondent when later exercising discretion. Such event can, and sometimes must, be relevant to that exercise. Such events are not limited to criminality, misconduct, change in legislative provision, or new evidence about the cheating allegation. That is revealed by the caution the Court of Appeal employed at [121]’

ix. that is not inconsistent with Khan which centred on the facts of the cases before it and, in any event, in those cases there were no intervening events. The Court of Appeal did not seek to prescribe the approach to be taken in future cases;

x. A fact-sensitive assessment is required and that will involve a degree of speculation because it will not always be easy to “reconstruct the world as it would have been”. The scenarios will vary [37];

xi. the respondent is not required to disregard all intervening events between the wrongful decision and a subsequent grant of leave. To do so would result in an “unprincipled and unjust windfall” and that is not what Ahsan intended [39]. On the facts of Mr Malhi’s case, the respondent was rationally entitled to have regard to the applicant’s absconding [52];

xii. to the extent Judge Neville decided differently in Hossain the Panel disagreed [40];

xii. whilst 3C leave should in principle continue in the event of a wrongful decision, events occurring during the period of 3C leave should not be left out of the account [41].

The Competing Positions on the approach to be taken

53. For the applicant, Mr Gill KC submitted that the respondent erred in failing to acknowledge, let alone apply, the position set out in both Ahsan and Khan, namely that the respondent is to take all steps possible to achieve restorative justice. Furthermore, contrary to the authorities and the respondent’s own stated position in Khan, the respondent explicitly refused to disregard the gap caused by her own erroneous decision. Contrary to the decision under challenge, the applicant is not required to demonstrate that the erroneous decision prevented her from acquiring 10 years’ lawful residence, rather it is for the respondent to assess (at the very least) how the applicant’s residence was likely to develop but for the erroneous decision, taking a broad view and giving the applicant the benefit of the doubt as Ahsan and Khan stipulate. In other words, the respondent’s approach was the wrong way round.

54. Mr Gill KC further submitted that the respondent failed to apply the FTT’s direction to place the applicant in “a position as if any removal decisions affecting her leave to remain had not been made”. The respondent set too high a test by addressing a lack of legitimate expectation of a grant of ILR whereas restorative justice as a result of historical injustice is a lower threshold requiring the applicant to be given the benefit of the doubt. Applying that test, there is every reason to think the applicant would have accrued 10 years continuous lawful residence through education and post-study work. He submitted that such an approach is concordant with Ahsan, Khan and R (on the application of Gurung) v Secretary of State for the Home Department (ACRS meaning – policy interpretation principles) [2025] UKUT 90 (IAC)) and was sufficient to satisfy the need for a causal connection.

55. In his skeleton argument Mr Harland submitted that Ahsan and Khan do not have the meaning or significance attributed to them by the applicant. In particular he argued that Ahsan does not contain any new principle of historical injustice and the main principle which derives from it relates to what is a suitable remedy for historical injustice cases and the inter-relationship with the Article 8 proportionality balancing exercise. Furthermore, he submitted it was clear from Khan that the respondent never intended to be bound by what was set out therein. He relied heavily on Ahmed to submit that the applicant cannot discharge the burden on her to show historical injustice, so her argument that the respondent’s approach to her application was wrong is unsustainable. In any event, he questioned whether ILR was the only possible outcome to rectify any injustice. Furthermore, Mr Harland relied on what was found in Malhi and the caution to be exercised against a windfall outcome and what the respondent is permitted to take into account in the exercise of her functions when considering such matters.

56. He submitted that taken together the authorities are clear that they do not mandate the respondent to grant the applicant ILR, or treat her as someone with ongoing leave, or as if she had never absconded. Indeed, she was only required to consider what the historical injustice principles required on the facts of the applicant’s particular case, as part of which she was entitled to have regard to the factors referred to in the decision.

Conclusions on the correct approach

57. As is clear from the extracts set out from Ahsan and Khan, neither set out a prescriptive approach for the respondent to follow when considering how best to reflect a finding that a person has not cheated and where an adverse immigration decision was made but later found to be wrong.

58. There are certain submissions I can deal with fairly quickly. I accept Mr Harland’s submission that none of the authorities mandate a grant of ILR in circumstances such as the applicant’s. They require consideration to be given, as far as possible, to reinstating the applicant to the position she would have been in but for the curtailment decision.

59. With one caveat that I deal with at [62] below, I accept Mr Gill KC’s submission that responsibility for carrying out this exercise is the respondent’s. I accept it is not for the applicant to demonstrate (certainly not in any formal sense) that her continuous lawful residence would have continued. The situation has to be considered in context. The respondent had erred in attaching to the applicant an allegation of cheating and curtailed her leave accordingly. The applicant was not in the wrong. It is clear from what is said in Ahsan and in fact underpinning both Patel and Ahmed that mistakes like these in immigration decision-making can result in injustice. It follows that it is for the respondent to remedy that injustice by restoring the applicant’s position so far as is possible. That it is her responsibility and that it should be exercised benevolently is demonstrated by references in Ahsan to the ‘benefit of the doubt’ and in both Ahsan and Khan by reference to the respondent ‘disregarding’ the gap in lawful residence “other things being equal”.

60. However, I do not find that responsibility to extend to an obligation to disregard the gap in lawful residence, no matter the circumstances. I do not find that submission borne out in any of the authorities. In Ahsan it was clear that such an approach was only appropriate “other things being equal”, which gives rise to the reasonable inference that there would be factors rendering such an approach inappropriate. I am not satisfied Khan should be treated as a binding concession in all such cases. The extract cited above reveals that the respondent was at pains to point out that her position therein did not bind her. I agree with what the Panel in Malhi said at [52(ix)] above on this issue for the reasons they gave. Even in the now set aside Hossain, as demonstrated by Judge Neville’s comments at [29] see [50] above, he did not exclude the possibility of some matters being raised which operated to break the continuity of lawful residence.

61. It follows that there must be some circumstances to which the respondent would be lawfully entitled to have regard when considering whether the historical injustice requires her to disregard the gap in lawful residence. I do not find it appropriate to be prescriptive about what those circumstances may be for the reasons alluded to at [121] of Ahsan and those the Panel gave in Malhi (see [52(x)] above).

62. I return next to the caveat I referred to at [59] above. That is the interplay between the respondent’s responsibility to attempt to remedy an historical injustice as per Ahsan, and the need for the applicant to demonstrate a causal connection between the wrongful decision and the suffering/prejudice applying headnote 1(c) of Ahmed and the need to try to mitigate that suffering/prejudice applying headnote 1(d) therein.

63. In my judgment, the fact that the wrongful decision broke the continuity of otherwise lawful residence is capable of amounting to suffering/prejudice. That is unlikely to be controversial.

64. However, there is likely to come a point where the passage of time means that the confidence that lawful residence would have continued may begin to wane or be harder to identify. This is where the challenge comes in as referenced at Ahsan; a degree of speculation is required on behalf of the respondent and the potential variety of scenarios which might arise are potentially endless. Here, whilst I do not resile from what I have said at [59] above as to where the burden lies, it follows that the greater the information before the respondent as to the likelihood of leave continuing, the greater the responsibility on her to demonstrate that she has taken such material into account and, if rejected, sufficient reasons are provided, in order for her exercise of discretion to be lawful.

65. On the issue of mitigation of prejudice, this was considered in Ahmed in the context of the weight to attach to the public interest in the maintenance of effective immigration control. That is not the context of this judicial review. The relevance of any failure or delay in challenging the wrongful decision is to be considered in the context of the task the respondent is carrying out in any given case. If she relies on such a factor as a reason not to exercise discretion to disregard the break in lawful residence, she will need to ensure she adequately explains why it is relevant to that task.

66. On the specific issue of absconding, I make the following general observations. On the facts of this case, the first period of absconding relied upon was that which started in 2014. Returning to the chronology, it is clear that but for the curtailment decision, the applicant had leave until 24 February 2015. The respondent withdrew the August decision, replacing it with the October 2014 one and the applicant was declared an absconder in the intervening period.

67. Be that as it may, at the time the applicant was required to report (prior to being declared an absconder), her leave had been curtailed by the August decision. She was still under an obligation to report as required. There were no submissions to the contrary. Once being declared an absconder, she was not then encountered by the respondent until 2016 (although JR1 started and finished during this period). In the meantime, what would have otherwise been her valid leave expired. Thereafter, on any analysis, on the basis the applicant had not regularised her stay, she was here without valid leave. The second period of absconding on which the respondent relied took place during that period.

68. In my judgment, in general terms, it is open to the respondent to consider the effect of this type of conduct within the exercise she is undertaking, namely consideration of what is required to give effect, so far as is possible, to the reinstatement of the position the person would have been in had the wrongful decision not been made, reflecting that “other things being equal” she should exercise discretion on the basis that the person had leave during the relevant period.

69. If there are no such circumstances, then the respondent may find that she would need to disregard the break in lawful residence on the basis that ‘other things are equal’. But absconding and delay in regularising one’s stay are factors which are capable, in principle, of being taken into account as part of the exercise being undertaken.

How should the disputed policy guidance be interpreted?

The competing positions

70. The applicant’s overarching submission is that the meaning of the disputed policy guidance is clear and that it means what it says, namely that ILR should be granted to someone in the applicant’s position. Mr Gill KC submitted that [10] of Mahad v ECO [2009] UKSC 16 supports that proposition. He submitted that not to follow published policy is unlawful, denial of a legitimate expectation, a breach of good administration, and unfair. None of that is rectified by the evidence of Ms Begum-Haqq which is short on detail and in fact gives rise to other unlawful conduct. In any event, he submitted that interpretation of policy is a matter for the Tribunal and the stated intention of the respondent is not relevant, although he accepts there is some recognition in the authorities that context is important (see [118]-[124] of R (Raissi) v Secretary of State for the Home Department [2008] QB 836). Furthermore, the now disclosed ‘table’ does not appear to be applicable to the applicant whose application was made on private life grounds not Appendix FM.

71. The respondent concedes it is a matter for the Tribunal to determine the true effect of the disputed policy guidance. It is not in dispute that if the Tribunal agrees with the applicant’s interpretation, that means the decision under challenge was contrary to what the published policy says should happen. However, the respondent’s overarching position is that is not how the disputed policy guidance should be interpreted. The respondent submits that the applicant’s reading of it is ‘absurd’ given the number of incidents where that would lead to windfall type outcomes; it would of itself represent a fetter on the respondent’s discretion; is contrary to what was anticipated in Ahsan which talked of “other things being equal”, and the respondent’s clear position in Khan that the ETS issue should not bind her. The respondent further submits that when the ETS Guidance is read as a whole (and when previous and successive iterations are considered) it is clear that the respondent intends an applicant to meet the requirements of the Rules before ILR will be granted. Contrary to Mr Gill’s submissions, he argues that the authorities support the proposition that the respondent’s intention is relevant (see Khattak [2021] EWCA Civ 1873; Mahad) and furthermore, the respondent’s position as to the meaning is consistent with the authorities about the historical injustice position where a range of factors fall to be considered (Ahsan, and Khan). Mr Harland also relied on the late addition of Ground 3 to submit that this demonstrates the applicant cannot have had a legitimate expectation of being granted ILR because otherwise it would have been pleaded from the outset.

72. In reply, Mr Gill KC submitted that Mr Harland had sought, in part, to explain the meaning of the disputed policy guidance by other redacted parts which are only available to us because they were annexed to the DGD. He submitted that it is not acceptable to interpret the meaning of a policy from other redacted parts of that policy.

The approach to interpretation

73. I turn first to evaluate the correct approach to be taken by the Tribunal when tasked with the responsibility of interpreting the respondent’s own policy. That it is a role for the Tribunal is not in dispute ([119]/[123] Raissi applies as does [36] of Kambadzi v SSHD [2011] UKSC 23). Some of the authorities to which I was referred relate to interpretation of the Rules, rather than policy (for instance Mahad) so I refer to them briefly as there is some interplay (see [49] of Gurung). I then move on to consider the authorities where the specific issue under consideration was interpretation of policy.

74. In the context of the interpretation of a ministerial policy statement, the Court of Appeal held at headnote (1) of Raissi that:

“the test to be applied in interpreting a ministerial policy statement was to ask what a reasonable and literate man’s understanding of it would be, and not whether the meaning attributed by the minister to the words of the policy was a reasonable one; and that, accordingly, it was for the court to decide what the ex gratia scheme meant on the basis of what a reasonable and literate person would understand the circumstances to be in which he could be paid compensation under it”.

75. Raissi was concerned with a compensation scheme in the context of persons who had been imprisoned or detained. At [124] Hooper LJ said that the Court had to consider what the scheme means; its purpose and scope, and who the minister intended to be compensated.

76. In Mahad, Lord Brown of Eaton-Under-Heywood JSC was concerned with the construction of the Immigration Rules in so far as they related to a person’s ability to rely on third-party support. At [10] he noted that the approach was not really in dispute and he cited [4] of MO (Nigeria) v Secretary of State for the Home Department [2009] 1 WLR 1230 as follows:

“Like any other question of construction, this [whether a rule change applies to all undetermined applications or only to subsequent applications] depends upon the language of the rule, construed against
the relevant background. That involves a consideration of the immigration rules as a whole and the function which they serve in the administration of immigration policy.”

77. He continued:

“The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State’s administrative policy. The ECO’s counsel readily accepted that what he meant in her written case by the proposition “the question of interpretation is . . . what the Secretary of State intended his policy to be” was that the court’s task is to discover from the words used in the Rules what the Secretary of State must be taken to have intended….. True, as I observed in the MO (Nigeria) case, at para 33: “the question is what the Secretary of State intended. The rules are her rules.” But that intention is to be discerned objectively from the language used, not divined by reference to supposed policy considerations. Still less is the Secretary of State’s intention to be discovered from the Immigration Directorates’ Instructions (“IDIs”) issued intermittently to guide immigration officers in their application of the rules.”.

78. Khattak is another example of where a question arose about the interpretation of the Immigration Rules and the Court of Appeal applied the approach confirmed and explained in Mahad as set out above.

79. In Inco Europe Ltd and Ors v Firs Choice Distribution (A Firm) and Ors [2000] UKHL 1 WLR 586 the House of Lords said:

“It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors…..This power is confined to plain cases of drafting mistakes… Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to given effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the bill been noticed”.

80. None of the above specifically address the interpretation of immigration policy guidance. In R (on the application of Ellis) v Secretary of State for the Home Department (discretionary leave policy; supplementary reasons) [2020] UKUT 82 (IAC), Chamberlain J set out the correct approach to the interpretation of non-statutory immigration policies at [29]-[36] with reference to various authorities including Raissi and Tesco Stores v Dundee City Council [2012] UKSC 13 with which Chamberlain J agreed and also found to apply to extra-statutory immigration policies. He succinctly summarised the correct approach at headnote (1) as follows:

“(1) Extra-statutory immigration policies should be interpreted in accordance with the objective meaning that a reasonable and literate person would ascribe to them.”

81. Most recently the question of interpretation of a policy was considered by a Presidential panel in R (Gurung) which gave important guidance at [43]-[57] and which was crystallised into the headnote as follows:

“1. Interpretation of a policy is a matter of law for this Tribunal, as confirmed in Kambadzi v SSHD [2011] UKSC 23, at §36.

2. The correct approach to understanding the meaning of a policy is for the court or tribunal to decide the meaning for itself. It is wrong to limit the enquiry of the court or tribunal to the question of whether the meaning which the Respondent has attributed to it is one within the range of reasonable meanings only: (see R (O) v SSHD [2016] UKSC 19, §28).

3. A policy must be interpreted objectively, in accordance with the language used, read as always in its proper context. A policy is not to be read as if it were a statute or contract. See, for example, Mandalia v SSHD [2015] UKSC 59, at §31.

4. The views of a third party on the interpretation of a policy are irrelevant.

5. It is necessary to consider the primary intended readership of a policy. For example, see R (Cotter) v National Institute for Health and Care Excellence [2020] EWCA Civ 1037. Where the intended readership is a group of specialists or experts, words in a policy may be 'terms of art,' in the sense of having specific meanings understood by the primary readership of experts, with knowledge of specialist terminology and practice.

6. Alternatively, where the primary readership is the general public, then the interpretation should focus on the natural and ordinary meaning of a policy's words, as understood by a reasonable and literate person (Mahad v ECO [2009] UKSC 16, at §10).

7. Material or evidence to which the intended readership of a policy does not have access cannot aid its interpretation.

8. There is a distinction between 'context,' in the sense of informing a proper understanding of the interpretation of a policy, and background facts. Context is broad. It includes interpreting words and phrases within the context of the policy itself, taking the policy as a whole. It may include how a policy sits alongside other policies and statutory provisions, particularly if the words of a policy are ambiguous (discussed for example, by the Court of Appeal in Cotter, at §51). It is also closely linked to the purpose of a policy. However, the scope of context has limits. In particular, the relevance of 'background facts' as an interpretative aid should be considered with caution. It is important to identify the proposition which the facts are said to support. Once that proposition is identified, the reader can then appreciate how that proposition aids interpretation of the policy.

9. The earlier versions of a written policy may aid the interpretation of a later version. In particular, the changes to a written policy may provide textual context, explain clarifications to ambiguities and shed light on the author's intentions in a policy, when objectively understood.

10. There is an important distinction between the proper interpretation of a policy and its application. The interpretation of a policy is a matter for the court or tribunal; its application and the judgments which they may entail are a matter for the decision maker.”

82. By way of elucidation of two important issues raised before me, the panel said at [50]-[51]:

“50. In Mahad, the Supreme Court said, the “question of interpretation is what the Secretary of State intended his policy to be”, so that the task of the Court was to discover from the words used, “what the Secretary of State must be taken to have intended….But that intention is to be discerned objectively from the language used…” That is consistent with considering ‘context’ alongside the purpose of a policy, as the Court of Appeal did in R (MD (Angola) & Ors) v SSHD & Anor [2011] EWCA Civ 1238; and the Divisional Court considered in R (CX1) v Secretary of State for Defence [2024] EWHC 94 (Admin), §§55 to 56, when considering the interpretation of ARAP.

51. Sixth, material or evidence to which the intended readership of a policy does not have access cannot aid its interpretation. It cannot be right that a court or tribunal is in a better position to interpret a policy than its intended readership at the time a policy operated, merely because the tribunal has the later benefit of reading previously unpublished material.”

Discussion and conclusions on the meaning of the disputed policy guidance

83. I have set out the full text of the relevant section of the ETS Guidance as it appears in full (ending with the disputed policy guidance) at [38] above.

84. The general context of the ETS Guidance is set out at page 5 therein as follows:

“This instruction provides guidance on how to manage cases affected by the historic English language qualification administered by Educational Testing Services (ETS).”

85. The respondent also noted the ways in which the ETS Guidance was updated from previous versions as follows:

“• key extracts from the Upper Tribunal (UT) determination in DK and RK [2022] and Varkey and Joseph [2024]
• case consideration flowcharts
• how to assess settlement applications under Long Residency with regards to ‘continuous residence’ and ‘lawful presence’
• minded to refuse (MTR) process, including instructions to obtain voice
recording of ETS tests from ETS’s solicitors
• how to implement appeal decisions and close ETS alerts
• sample grant and refusal wordings”

86. The explanation of the need for those changes is contained at page 6 and says:

“Purpose
Following the key determinations in the ETS cases [DK and RK [2022], where the Presidential Panel of the Upper Tribunal re-examined earlier caselaw and all evidence used by the Home Office to support the refusal of an application or cancellation of permission to enter/stay, it has been necessary to update the casework guidance accordingly.

This update includes the key conclusions drawn by the Presidential Panel and reaffirms the process to follow when dealing with applications within the ETS cohort.

Additionally, the guidance addresses process gaps in the previous versions identified through consultation with staff. “

87. Therefore, the specific context as it relates to this judicial review, is that the ETS Guidance at page 40 instructs caseworkers about the type of leave they should grant an applicant depending upon the precise basis on which the applicant won their appeal, and to reflect the outcome of their appeal.

88. The broader context is that grants of leave (or applications for leave) are governed by the Immigration Rules. Different sections of the Rules have different requirements. The appellant applied for ILR based on her private life/length of residence in the UK and I have set out the requirements which need to be met for ILR to be granted within the Rules at [29] above. As can be seen, there is a degree of discretion built into the requirements whereby the respondent needs to assess the desirability of the person being able to settle in the UK (paragraph 276B(ii)). This elevates the ILR requirements from being purely rules based.

89. There is reference throughout the relevant caselaw to the discretionary nature of ILR and that the decision about whether or not to grant ILR is one for the respondent (see for example [15] of IT (Sierra Leone) [2010] EWCA Civ 787; [48]-[49] Safi v Secretary of State for the Home Department [2015] EWHC 95).

90. On the face of it, therefore, to bypass all of this and provide for someone such as the applicant, who applied for ILR and who happens to have won both an ETS and human rights appeal to be granted ILR, effectively as of right and irrespective of lawful residence, appears to run counter to the usual process in ILR applications and could amount to the type of ‘windfall’ deprecated by the Panel at [39] of Malhi.

91. In making the ‘windfall’ submission, Mr Harland relied on all of the relevant caselaw in this area, particularly Ahsan and Khan which demonstrate that a decision maker is required to look at all aspects in order to decide what would have been the case “other things being equal”.

92. The windfall argument, taken to its extreme, would mean that applying the disputed policy guidance as the applicant contends, a person with criminal convictions of a certain magnitude who was found not to have committed ETS deception and then won their appeal on human rights grounds, would be granted ILR despite their convictions.

93. Such a scenario is unlikely to accord with the thrust of what was said in Ahsan about what needs to follow a finding that someone has not committed ETS fraud. That requires an evaluation, as best as possible, of what would have been the position, but for the fraud, and to try to put the person back into that position. In the above hypothetical example, that person could not have achieved ILR in the ordinary scheme of things as they were likely to fall foul of the suitability requirements of the Rules.

94. Nevertheless, on its face, that is what the disputed policy guidance appears to say. In accordance with headnote [5] in Gurung, it is necessary to consider who the primary readership of the policy is in order to decide the threshold by which the words used in the disputed policy guidance should be understood.

95. As can be seen from [36] above, the purpose of the policy was to instruct the respondent’s caseworkers who are, therefore, the primary readership. However, those parts of the policy which are not redacted (and which includes the disputed policy guidance) are also available to the public at large. Accordingly, the readership also includes those who had been through the appeal process and were awaiting a decision on how the appeal outcome would be implemented. In the specific cohort applicable to the particular guidance in dispute in the instant case, they would be reading the disputed policy guidance because they would have made an application for ILR. Some of those (if not many) may not have legal representation and would not be considered specialists. Part of the point of publishing policy is so the public knows the process by which applications and decisions will be considered and made and, where necessary, that meaningful representations can be made (Lumba applies).

96. Accordingly, I find the primary readership of the guidance to be made up in part of specialist caseworkers but, in part, also of the above cohort of the general public (at least to the extent that the part of the policy in question was published as was the case here). Accordingly, I find that the proper basis to interpret the disputed policy guidance is to look at the natural and ordinary meaning of the ETS Guidance’s words, as understood by a reasonable and literate person applying headnote [6] of Gurung but within the broader context of immigration policy generally and in relation to the historical injustice caused by incorrect ETS decisions. Given the particular cohort of the general public likely to be reading the disputed policy guidance, it is reasonable to think they would have a general understanding of this broader context and of the requirements generally to be met to be eligible for ILR and that it is discretionary. To the extent the respondent relies on redacted or unpublished parts of the policy (such as the table) to make good her case on how the disputed policy guidance is to be interpreted, I do not find that permissibly open to me applying headnote [7] of Gurung.

97. In any event, the specific table on which the respondent relies on in part to explain the impugned decision (see [40] above), does not, in my judgment do so in full. I observe that the table reflects a situation where someone wins their human rights appeal and their ETS appeal. But it does not make any express reference to a person who has applied for ILR and it only contemplates that leave is to be granted to those people successful in both limbs of the appeal under the exceptions in Appendix FM. The applicant had applied for ILR, but not under Appendix FM, so in my judgment it is not obvious why this section of the table would apply to her in any event.

98. Returning to the wording of the disputed policy guidance, it is probably not controversial to say that its natural and ordinary meaning gives the impression that assuming a person applied for ILR and won their appeal on both ETS and human rights grounds, they will be granted ILR.

99. In my judgment, it does not necessarily follow, that the previous versions of the ETS Guidance assist in interpreting the disputed policy guidance because the section in which it is found was updated, in part, to reflect how to implement appeals in ETS cases. Accordingly, the reasonable and literate reader may conclude that the changes to that section were intentional.

100. In any event, I am not sure that the other versions of the guidance assist with interpretation when the precise wording of the earlier versions is examined. Relying on the evidence of Ms Begum-Haqq, the respondent submits it was always her intention that a person would need to meet the requirements of the Rules to be granted ILR. I have set out the most recent previous versions of the ETS Guidance at [44] above. They only vary from versions 1.0 and 2.0 of the guidance (which Ms Begum-Haqq also set out) insofar as the section regarding flags is not included in versions 1.0 and 2.0 and changed the length of leave in respect of someone whose human rights appeal was dismissed but who were found not to have used deception, from 60 days to six months leave outside the Rules.

101. The above wording does not expressly deal with the scenario where a person wins on both ETS and human rights grounds. The only reference to meeting the requirements of the Rules appears in the context of someone who has used deception. As can be seen from the section underlined at [44] above, the use of the word “used” and then “but” reflects a human rights win only. When contemplating the position of someone found not to have used deception, the wording does not refer to an ability to meet the requirements of the Rules and, in fact, expressly says that it relates to someone whose human rights appeal is dismissed on human rights grounds (which implies an inability to meet the requirements of the Rules). There is no reference in these earlier versions to the position of someone who has applied for ILR.

102. For this reason, I do not find the earlier versions of the guidance to definitively or even significantly aid interpretation of the disputed policy guidance. I am not satisfied that the earlier versions can be relied on to show a consistent policy intention on behalf of the respondent that ILR was reserved for a person who had won their appeal on human rights and ETS grounds AND met the requirements of the Rules, because that is not what the earlier versions said.

103. Likewise, the full section of version 5.0, which concludes with the disputed policy guidance, does not deal with the position of someone who has won both their human rights and ETS appeal until the disputed policy guidance. Accordingly, I cannot interpret it as being an extension of what comes before (in other words distinguishing the position of someone who won both their human rights and ETS appeals but who had applied for limited leave to remain as opposed to someone who had won both who had applied for ILR) because the earlier part of that section of version 5.0 does not deal with a person who has won both limbs of their appeal.

104. I turn next to the fact that since this matter has come to light, the appeal implementation section of the ETS Guidance has been changed again, this time to add that ILR is only to be granted to those who had applied for ILR, and won their appeal on ETS and human rights grounds if they also meet the requirements of the Rules. Gurung does not deal with that precise situation, but in the same way that earlier versions may aid interpretation, I see no reason why later versions could not do so.

105. The evidence of the later change, coupled with that of Ms Begum-Haqq, is sufficient to demonstrate that in April 2026 when that change was made, the respondent’s intention was that ILR would not be granted to someone in the applicant’s situation who does not meet the requirements of the Rules. Indeed, that is the natural meaning of the words used in the current guidance.

106. I note Ms Begum-Haqq’s evidence that as soon as the disputed policy guidance wording was brought to her attention, the necessary changes were made to reflect that someone who had applied for ILR and whose appeal was allowed on human rights and ETS grounds, would need to meet the requirements of the Rules before ILR would be granted. On its face, that would support her evidence that even at the time that version 5.0 of the ETS Guidance was published, that was the respondent’s intention. I also find such a position to accord with the respondent’s consistent approach that ILR is a privilege and not a right and one over which she has significant discretion. In those circumstances, it would seem surprising in the extreme that the respondent would have chosen to have fettered her own discretion in such a way that she was bound to grant ILR to someone who does not meet the requirements of the Rules.

107. However, I accept that to rely on the changes made in version 6.0 of the ETS Guidance as an aid to interpret the disputed policy guidance, means departing from what is the natural meaning of the words used in the disputed policy guidance. Furthermore, it risks prioritising the respondent’s current intention about the meaning of the policy over and above the natural meaning of the words used when considered by the reasonable and literate reader.

108. Nevertheless, I come back to the implications of interpreting the disputed policy guidance purely on the basis of the natural and ordinary meaning of the words without reference to the broader context, of which I have found the particular cohort of the general public reading it to have some understanding. The windfall approach taken to its extreme has implications of significant gravity. For example, it precludes the respondent from being able to refuse to grant ILR to someone with significant criminal convictions purely on the basis that they have won an ETS and a human rights appeal. Whilst not addressed before me in detail, it is trite to say that such a course of action would be contrary to a number of the respondent’s policies on how to deal with foreign criminals and other persons likely to fall foul of the suitability requirements for ILR. It also undermines entirely the discretionary nature of ILR. Furthermore, it is contrary to what is expected of the respondent applying Ahsan. In other words, it would prevent the respondent deciding what position an applicant would have been in but for the erroneous curtailment decision.

109. Given the inherent unlikelihood of the respondent choosing to fetter her own discretion in such a way, I have considered whether the drafting of the disputed policy guidance is more likely to have been an unintentional drafting error. I remind myself of what was said in Inco Europe Ltd (see [79] above). Whilst that applies to drafting errors in legislation, I see no reason why the same should not apply to drafting errors in policy guidance. I remind myself of the three factors about which I would need to be “abundantly sure” before I could correct such an error. Firstly, the intended purpose of the disputed policy guidance; secondly, that it was inadvertence on the part the draftsman; thirdly what the substance of the provision should have been.

110. Given all that I have said above, I am not sure that I can be “abundantly sure” what the respondent’s intention was at the time of publishing disputed policy guidance. Although, Ms Begum-Haqq’s evidence is that it was always the respondent’s intention that someone should meet all of the requirements of the Rules before they would be granted ILR I do not find this necessarily borne out by the wider analysis. It is difficult to see that the words had any meaning other than their natural and ordinary meaning. The wording used was succinct, clear and straightforward. The previous versions of the ETS Guidance do not address a situation such as the applicants. They have not really helped me. The unredacted parts of the ETS Guidance cannot permissibly be used as an interpretation aid. In any event, the table on page 41 does not sit squarely with the applicant’s position and does not fully explain why that overrides the natural and ordinary meaning of the disputed policy guidance.

111. I accept the natural and ordinary meaning of the disputed policy guidance does not make sense in the broader context about the protected nature of ILR and does not accord with the Ahsan approach. However, all of the other factors to which I have made reference do not point to a consistent policy intention that for someone in the applicant’s position, she would be expected to meet the requirements of the Rules for ILR given that she is a victim of an historical injustice.

112. Accordingly, I do not find it open to me to find that based on the respondent’s clear intention, the wording of the disputed policy guidance was a clear drafting error that needs correcting.

113. That just leaves the question about how it should be interpreted. I return to the first of the issues I had to decide in this judicial review claim, namely the approach to be taken. That approach reflects parts of both the broader and the narrower context. In particular it reflects what the respondent has to do in order to reflect an historical injustice and whether someone should be treated as having the requisite continuous lawful residence even though they did not. There is clearly an overlap with the issue of interpretation in context. Here, if the applicant’s meaning of the disputed policy guidance is accepted, this renders the respondent unable to undertake the exercise set out in Ahsan of deciding what position an applicant would have been in but for the erroneous curtailment decision. It also fails to acknowledge the protected and discretionary nature of ILR.

114. There is a stark tension here between this context and the natural and ordinary meaning of the words as understood by the reasonable and literate person in the cohort of the public likely to be reading the ETS Guidance. I resolve that tension by concluding that the readership of the policy as I have defined them would understand the improbability of someone being granted ILR when they were not able to meet the Rules for ILR unless the respondent decided to grant it on a discretionary basis. There is always scope for the respondent to exercise discretion. Ahsan effectively requires the respondent to consider doing so. There is nothing to stop a person inviting the respondent to do so in their favour. There is nothing in the ETS Guidance (even in its current form) to prevent the respondent doing so (the table at page 41 does not deal expressly with ILR).

115. Therefore, I interpret the disputed policy guidance in version 5.0 of the ETS Guidance as meaning what version 6.0 now says, namely:

“However, if the applicant submitted an indefinite leave to remain (ILR) application and the appeal has been won on both ETS and HR grounds, and all requirements of the relevant route have been met, proceed to grant ILR”.

Conclusions on the Grounds of Review

116. Having determined these matters, I apply my findings to the Grounds of Review.

Grounds 1 and 2

117. I take these together as was the approach taken at the hearing. I have set out the approach Mr Gill KC submitted the respondent should have properly taken at [54] above. He submitted the respondent failed to treat this approach as the starting point; failed to mention the test to be applied at all; failed to have regard to positive factors in the applicant’s favour such as her overall length of residence now; and failed to explain why she granted limited leave to remain rather than ILR. This was not the type of ‘obvious’ case where ILR would not be granted as contemplated in Khan. If that was the respondent’s view, she has not stated or reasoned it. Accordingly the respondent’s exercise of her discretion was flawed.

118. As to the approach to be followed, that the respondent was aware she was being asked to exercise her discretion to disregard the leave cannot be in doubt given the express reference to it in the decision letter. Similarly, the respondent expressly referred to the findings of the FTT that the applicant “should be placed in a position as if any removal decisions affecting your leave had not been made”.

119. For the reasons I have given in the section dealing with the approach to be taken in those cases, I am not satisfied the respondent was required, without more, to exercise her discretion to disregard the break in the continuity of the applicant’s leave.

120. The question therefore is whether she was entitled to have regard to the factors she raised in the decision under challenge as reasons not to exercise her discretion in that way.

121. The respondent was entitled to note that at the time the applicant’s leave was curtailed she had limited leave and, by virtue of the ‘new’ decision, she was returned to the position of having limited leave. Had the respondent left her analysis there, it is unlikely to have withstood scrutiny because of a failure to undertake a holistic assessment to identify where the applicant would be but for the wrongful decision.

122. However as can be seen from the decision under challenge, the respondent did not leave it there. She proceeded to evaluate whether the applicant was able to show that it was the events surrounding the ETS allegation which prevented her from accruing 10 years’ continuous lawful residence.

123. In principle, applying headnote (c) of Ahmed, this is an approach open to the respondent. Ahmed is clear that it is for an applicant to demonstrate the suffering/prejudice resulting from the wrongful cheating accusation.

124. In this instance, Mr Gill KC contends that such an approach was not open to the respondent because the FTT had already found the applicant to be a victim of an historical injustice and decided she needed to be put back into the position she would have been in. The FTT noted that even then the respondent considered that a period of 6 months leave may be appropriate (see [43] of Judge Allen’s decision).

125. The applicant has clearly suffered an historical injustice as a result of the respondent’s ETS decision. Her lawful leave was curtailed, she was faced with the consequences of the hostile environment, and she had to go through an appeal to prove her innocence. She does not need to prove that again because all those factors subsisted at the time of the FTT decision and the FTT accepted she was a victim of an historical injustice.

126. But that does not mean to say she would have necessarily accrued 10 years continuous leave. I have considered carefully what the UT said at headnote (c) of Ahmed. I interpret that as meaning that an assertion of prejudice is not sufficient, it has to be grounded in some sort of reality. Although the context of headnote (c) was the availability of a right of appeal, the point the UT was making that if there was no prospect of succeeding in that appeal, there is no prejudice.

127. By analogy, if the circumstances do not reveal that the applicant would have accrued 10 years continuous lawful residence such that she could meet the requirements for ILR, then it is unlikely she would be prejudiced by being refused ILR.

128. I have already explained above that the respondent was entitled, in principle to have regard to the applicant’s absconding and the delay in regularising her status. I will return to that below when considering the applicant’s specific circumstances.

129. The respondent relied on the fact that the applicant’s lawful residence was on a route which does not lead to settlement (the student route). I accept that the student route is not one of the excluded routes in the definition of what amounts to ‘lawful residence’ at paragraph 276A so in principle someone on the route can rely on that residence as part of their 10 years continuous lawful residence. However, at each stage a new application would have been required. The applicant’s submission was that there is every reason to think she would continue with her studies, convert to another route and in due course accrue sufficient continuous lawful leave to have been granted ILR. I accept it may have developed in that way, but the variables along the way are countless. As noted earlier, the longer the passage of time since the curtailment decision, the more speculative the exercise becomes as to what would have been the position but for the curtailment decision. For this reason, I find it was rationally open to the respondent to note that the applicant was not on a route to settlement when considering whether to exercise discretion to grant ILR.

130. Headnote (d) of Ahmed recognises the obligation on a person to mitigate that prejudice. In other words, one cannot just acquiesce in a situation and then seek to benefit from it without having to take reasonable steps to ameliorate their position.

131. The respondent identified that the applicant failed to mitigate her position because she failed to progress JR1, struck out for failing to comply with directions. The applicant’s point is that at the time of JR1 being struck out she was unaware of it as she was detained and/or she was not told by her former advisers. She did not pursue her initial tactic of blaming her advisers. Furthermore, it is not correct that she was detained at the time of the striking out. She was detained on 29 February 2016 whereas JR1 was struck out on 10 November 2015. I am not persuaded by the argument that this happened prior to Ahsan being decided and which the applicant contends was a significant shift in the legal landscape. The applicant had made the decision prior to Ahsan to challenge the curtailment decision via JR1 so there is no good reason why she would not have pursued reinstatement of that claim prior to Ahsan. In these circumstances, I find the respondent was rationally entitled to rely on the applicant’s failure to pursue her challenge to the curtailment decision as a factor against exercising discretion to grant her ILR.

132. The applicant contends that not to grant the applicant ILR notwithstanding the historical injustice was perverse, in part, because the respondent did not raise the issue of the applicant’s alleged deception in the 2016 asylum proceedings. She argues that had it been raised then, the issue of whether deception had been used would have been resolved in 2016 and the applicant’s position could have been regularised a lot earlier. I note from the 2016 asylum decision that the FTT noted the allegation and commented on the lack of evidence from the respondent about it. However, it is clear that deception was not the issue the FTT had to decide. The applicant has not demonstrated how the allegation was relevant to the asylum claim or how it should have been raised. In those circumstances, the applicant has not satisfied me that the decision under challenge is perverse or irrational on the grounds of a failure to pursue the deception allegations in an appeal founded on an entirely different premise.

133. In his written and oral submissions, Mr Gill KC raised the applicant’s detention and ill-health to explain some of the reasons why she may have missed appointments, not progressed JR1 and did not try to regularise her status here (save for her 2016 asylum claim).

134. To the extent it is an issue before me, I set out why these factors are not capable of being determinative of the claim. The reason I say it may not be an issue before me is that the grounds do not make express reference to the applicant’s health or detention, even within ground 2 which raises the respondent’s failure to take into account material matters. Nevertheless, I accept that such matters formed part of the applicant’s case when she originally applied for ILR and in the appeal before Judge Allen. I also observe they are not mentioned at all in the decision under challenge.

135. In summary, the applicant was detained and whilst in detention she contracted tuberculosis (“TB”) which was exacerbated by poor care in detention. In her witness statement before Judge Allen the applicant provided further detail about the progression of her TB. She explained that she was released from detention on 2 August 2016 after a period of 5 months and 2 days. She was required to travel from Bedford to Manchester. That was the day before a long-awaited hospital appointment which she was then unable to attend. She was admitted to hospital on 19 August 2016 and discharged the same day but later readmitted and underwent surgery. She was diagnosed with tuberculosis (“TB”). She remained ill and in treatment for another 9 months and has been left with scarring and worsened mental health. During that period she relocated from Manchester to London. The evidence also reveals that her treatment in fact ended in July 2017. She was still under the care of the medics in October 2017 but there is little, if any, evidence of medical treatment for her TB thereafter. There is little reference to her situation generally in the period from 2017 onwards.

136. If it was just periods of absconding in 2016/17 that the respondent relied on as being factors justifying not exercising discretion to grant the applicant ILR, then the respondent may have been in some difficulty. That is because she has not addressed the evidence on which the applicant relied when requesting that discretion be exercised in her favour.

137. However, as can be seen from the decision under challenge which I have set out at [10] above, the respondent also relies on periods of absconding from 2014-2016 and again from May 2017 until her application for ILR on 2 March 2021. In fact, the period over which the applicant was detained and then undergoing treatment was generally outwith the periods on which the respondent relied. The evidential picture covering the nearly 4 year period from May 2017 is less detailed. It is the subject of little, if any, explanation beyond that the appellant was suffering with her health. I was not taken to any evidence about it. In her application to the respondent and her appeal to the FTT, the applicant’s focus was on her detention and the TB.

138. I have every sympathy with the position the applicant found herself in in 2016 and the early part of 2017. However, that period was not the respondent’s focus. The respondent was mindful of the need to restore the applicant to the position she would have been in but for the erroneous deception allegation and the curtailment decision. She demonstrated that she was aware of that as her role and that was what Judge Allen had found was required. Collateral factors such as the detention and health issues are not, of themselves, factors which can be remedied through this process (see [120] Ahsan).

139. In my judgment, applying the approach set out in the authorities to which I have referred and the approach as I have found to be required, the respondent was entitled to rationally refuse to grant the applicant ILR and instead grant her 30 months leave. That decision was one which rationally reflected the historical injustice of the curtailment of the applicant’s lawful leave and reinstated her to the position of having lawful leave as would have been the case had the wrongful decision not been made. The respondent was rationally entitled to take into account that the applicant was not on a route to settlement. The respondent was rationally entitled to take into account that she had not pursued JR1 after it was stuck out. The respondent was rationally entitled to take into account that when the applicant was required to keep in touch with the respondent in 2014, she failed to do so and she became an absconder. The respondent was rationally entitled to take into account that from May 2017 onwards the applicant was an absconder, and she did not take steps to regularise her position until 2021. In my judgment, for all the reasons I have given this was not the type of case where, other things being equal, the only appropriate way to reflect the historical injustice was by disregarding the gap in the applicant’s lawful residence. Other things were not equal for the reasons I have set out.

140. Grounds 1 and 2 are dismissed.

Ground 3

141. As the applicant does not claim an ability to meet the Rules to enable her to be granted ILR, I do not find the respondent’s decision to refuse her ILR to be contrary to her published policy as I have interpreted that policy to mean. Neither do I find the respondent to have breached a legitimate expectation held by the applicant on the basis that the policy, as I have interpreted it, could not have legitimately led the applicant to expect to be granted ILR when she was unable to meet the requirements of the Rules. In any event, on the latter point, the applicant never asserted a right to be granted ILR in reliance on the policy and she only relied on it once the SGD had been served.

142. Accordingly Ground 3 is dismissed.

143. As the applicant has not succeeded on any of the grounds of review, she is not entitled to any of the remedies sought.

144. The parties are to draw up an order reflecting my decision and dealing with any ancillary matters.