Tribunal decisions

The decision

Case No: JR-2026-LON-000555

IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

Field House,
Breams Buildings
London, EC4A 1WR

7th April 2026

Before:

UPPER TRIBUNAL JUDGE FRANCES

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Between:

THE KING
on the application of
MUHAMMAD MOSHIN NAVEED
Applicant
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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Mr S Cox
(instructed by Connaught Law Limited) for the applicant

Ms A Jones
(instructed by the Government Legal Department) for the respondent

Hearing date: 7 April 2026

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J U D G M E N T

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Judge Frances:

1. This application for judicial review is concerned with the respondent’s policy guidance on Pending Prosecutions (version 5.0, 18 November 2024). I shall refer to this guidance as the PP policy.

2. The applicant challenges the respondent’s decision of 22 January 2026 maintaining the deferral of consideration of his application for leave to remain as a skilled worker pending the conclusion of criminal proceedings against him. The applicant also challenges the respondent’s refusal to grant short-term / temporary leave to remain in the UK to enable to applicant to visit his dying grandfather in Pakistan.

3. On 21 October 2025, UTJ Blundell granted permission for judicial review of an earlier deferral decision on the grounds it was arguable the PP policy is ambiguous and unlawful and that the respondent’s decision to defer the applicant’s application for leave to remain until the conclusion of his trial for rape was also unlawful. Judge Blundell identified the following arguable public law errors in the decision under challenge.
(i) The respondent failed to undertake any individualised assessment of the facts of the applicant’s case when deciding whether to defer consideration of his application until the conclusion of the criminal trial.
(ii) The decision under challenge made no reference to the policy, or to the respondent’s ability to depart from that policy, or to the content of the submissions made by the applicant in favour of that course.

4. Those proceedings were disposed of by consent on 24 December 2025, with the respondent agreeing to reconsider the deferral decision by 14 January 2026. The reconsideration decision was not taken until 22 January 2026. On 12 February 2026, the applicant made an urgent application for judicial review and on 16 February 2026, Judge Hirst directed a rolled up hearing.

5. In summary, it is the applicant’s case that the 22 January 2026 decision has not remedied the errors identified in the earlier decision and does not engage with his submissions about the urgency of his need to visit his grandfather. The applicant submits the respondent failed to lawfully determine his application or to grant short-term leave to remain.

Relevant facts

6. The applicant applied for further leave to remain as a skilled worker on 16 October 2024 and disclosed in his application that he had been arrested for rape in May 2024. The applicant was charged with rape on 19 December 2024. His grandfather became gravely ill in February 2025 and the applicant made his first application for judicial review challenging the delay in making a decision on his pending application. These proceedings were withdrawn by consent after the grant of permission by Judge Blundell. The applicant made a second application for judicial review challenging the respondent’s failure to reconsider the decision in compliance with the consent order. The respondent made the decision under challenge on 22 January 2026 and the applicant made his third application for judicial review on 12 February 2026.

Pending Prosecutions Policy Guidance

7. The relevant parts of the PP policy are:

Action to take when a pending prosecution is confirmed

This section tells you how to proceed once a pending prosecution is known.

You must consider each case on an individual basis, taking into account:
• the current stage the application, administrative removal consideration or deportation has reached
• any previous convictions
• the alleged offence

Before making a decision to proceed with a case, you will need to know the potential maximum sentence the person may receive should they be convicted.

You must refer to the Sentencing Council guidelines to assess the severity of the offence the individual has been alleged to have committed. The potential maximum sentence can be seen as the maximum of the sentencing range for a category 1 offence. This should be considered as a reference to indicate the potential maximum sentence, however it is not a single comprehensive source.

The potential maximum sentence a person may receive will form an important part of the assessment as to whether it is proportionate to pause any immigration decision until the prosecution has been concluded. For more serious alleged offences, suitability criteria could be engaged if the potential maximum sentence is handed down on conviction and therefore it would be appropriate to pause decision-making until the prosecution is concluded. For lower-level alleged offences, especially where there is no previous history of criminality, pausing an application or decision may be disproportionate considering suitability criteria may not be engaged, even if convicted. A decision to pause a decision or application will take into account a wide range of factors, including previous offending history, whether the alleged offending caused serious harm, as well as the personal circumstances of the person such as the length of time they have lived in the UK.

A decision to pause a decision or application will take into account a wide range of factors, including previous offending history, whether the alleged offending caused serious harm, as well as the personal circumstances of the person such as the length of time they have lived in the UK.
…

Leave to remain

If a person has a pending prosecution for an offence or series of offences, you must consider whether to pause the application until the outcome of the prosecution is known.

However, you must only pause the application if the outcome of the pending prosecution or sentencing would materially affect how you decide the application. For example, if the person already has criminality which means their application must be refused, an additional conviction or sentence would make no difference to the outcome of their application. Where a person has a low-level conviction which would mean their application could be refused on a discretionary basis, but the offence for which they are being prosecuted carries a potential maximum sentence (see category 1 sentences for the offence under the Sentencing Council guidelines) which would mean a mandatory refusal or a refusal on the grounds of being a persistent offender or causing serious harm, you must pause the case until the outcome of the court proceedings (taking into account other relevant factors, of which the maximum potential sentence is just one).

Where there is no previous criminality, but the potential maximum sentence for the first alleged offence (see category 1 sentences for the offence under the Sentencing Council guidelines) could engage deportation considerations upon conviction, you must pause the case until the outcome of the court proceedings.

Where there is no previous criminality and the potential maximum sentence would not engage deportation consideration, you must consider whether it would be proportionate to pause the application pending the conclusion of the prosecution. This could include whether the application is time sensitive or if the person’s current leave status limits their ability to work, as well as other considerations. The considerations relevant to any particular set of circumstances will depend on the facts of the case.

Where a case has been paused pending the outcome of a prosecution, you must review the case every 90 days to establish whether the outcome of the prosecution has been recorded on the PNC.

Decision under challenge

8. Given the nature of the challenge to the decision of 22 January 2026 (the decision) I have set out the decision in full below:

We are unable to make a decision on your application because you have a pending prosecution in the United Kingdom for rape of a female aged 16 or over on 24th May 2024.

This prosecution is pending with Nottinghamshire Police and you are due to appear at Nottingham Crown Court.

This alleged offence is considered to be serious enough to have caused considerable harm and, as such, it requires a decision on your application to be paused in line with Home Office guidance on Cases involving pending prosecution, which states:

“Where there is no previous criminality and the potential maximum sentence would not engage deportation consideration, you must consider whether it would be proportionate to pause the application pending the conclusion of the prosecution. This could include whether the application is time sensitive or if the person’s current leave status limits their ability to work, as well as other considerations. The considerations relevant to any particular set of circumstances will depend on the facts of the case.”

And

Leave to Remain

If a person has a pending prosecution for an offence or series of offences, you must consider whether to pause the application until the outcome of the prosecution is known.

However, you must only pause the application if the outcome of the pending prosecution or sentencing would materially affect how you decide the application. For example, if the person already has criminality which means their application must be refused, an additional conviction or sentence would make no difference to the outcome of their application. Where a person has a low-level conviction which would mean their application could be refused on a discretionary basis, but the offence for which they are being prosecuted carries a potential maximum sentence (see category 1 sentences for the offence under the Sentencing Council guidelines which would mean a mandatory refusal or a refusal on the grounds of being a persistent offender or causing serious harm, you must pause the case until the outcome of the court proceedings (taking into account other relevant factors, of which the maximum potential sentence is just one).

You have requested that a decision be expedited on your case, or that you be granted a short period of leave to allow you to leave the United Kingdom to visit your grandfather overseas, due to his illness. The pending prosecutions guidance directs us to consider whether it is a proportionate to pause an application pending the conclusion of a prosecution. The guidance specific to leave to remain applications explains if the offence an individual is being prosecuted for carries a potential maximum sentence which would mean a mandatory refusal or a refusal on the grounds of being a persistent offender or causing serious harm, you must pause the case until the outcome of the court proceedings (taking into account other relevant factors, of which the maximum potential sentence is just one).

Having considered your representations including your grandfather’s illness we are satisfied it is appropriate to pause your application until this prosecution has been concluded. Charging is a significant step in the prosecutions process and due to the severity of the alleged offence including the harm this would have caused, it has been considered as inappropriate to conclude your application until this prosecution has been resolved. We note your desire to visits (sic) your grandfather, however, we are not satisfied this desire justifies concluding your application while your current prosecution is outstanding, due to the severity of the prosecution. For the same reasons, although we have considered your request for short term leave in order to travel, we will not be granting this.

Should you wish to leave the UK you are able to do so, however, your application will be withdrawn in line with the provisions of 34K under Immigration Rules – Immigration Rules part 1: leave to enter or stay in the UK – Guidance – GOV.UK. This would require you to apply for entry clearance to then return to the UK if you chose to do this.

Submissions

9. The points taken in oral submissions were different to those submitted in the grounds and many of the arguments advanced in the grounds were not pursued at the hearing before me.

10. Mr Cox first addressed whether the PP policy was lawful and secondly whether the decision was unlawful for failing to take into account a material consideration, namely that the applicant needs to be able to re-enter the UK to face trial in August 2026. Mr Cox then went on to deal with the written grounds, Article 8 and the refusal to grant a short period of leave outside the Immigration Rules.

11. Mr Cox submitted that the PP policy initially sets out the information required to make a decision and the matters to be taken into account. In considering deportation, removal and asylum the instructions in the PP policy are in expressed in discretionary terms. There was a clear instruction not to interfere with the trial process and to permit an applicant to be present at their trial in requiring the consent of the police and investigative body prior to deportation.

12. Mr Cox submitted that the only paragraph expressed in mandatory terms was that which applied to the applicant and therefore the decision-maker would consider that they had no discretion when applying this paragraph which was unlawful. He relied on [46], [47] and [38] of R (A) v SSHD [2021] UKSC 37. The policy directed the respondent to pause the application without considering whether to admit exceptions and was not saved by the general introduction to take into account all the circumstances.

13. Mr Cox submitted the decision was unlawful, notwithstanding it did not refer to the paragraph applicable to the applicant expressed in mandatory terms, because it can be assumed the respondent applied the correct paragraph. The applicant had a common law right to attend his trial. The applicant is not able to leave the UK because if he did so he would be unable to return and face trial. The respondent failed to take this into account and consider the wider public interest. Deferral of the applicant’s application and the refusal of short term leave to remain prevented the applicant from re-entering the UK to attend trial in breach of his bail conditions.

14. Mr Cox accepted this point was not expressly pleaded in the grounds, but if permission to amend was required, it should be granted because it was such an obvious point. The case of R (X) could be distinguished because the applicant in that case was unable to travel outside the UK.

15. Ms Jones submitted the case rests mainly on a new point not raised in the grounds of application or in the applicant’s skeleton argument. No formal application had been made and no amended grounds had been submitted. Permission to amend should be refused because it was unfair for the respondent to meet a case which had never been raised. It was not the case that if the applicant leaves the UK he will be unable to re-enter to answer his bail. The respondent can consider this at the appropriate time, but it was unlikely the respondent would grant permission to work on re-entry to attend trial. The failure to take into account that the applicant needs to re-enter the UK to attend trial was not material to the decision to defer the applicant’s skilled worker application or the refusal to grant short term leave to remain. The public interest in facing trial was a relevant consideration but was not material to the decision deferring the application for leave to remain as a skilled worker or to the grant of a short term period of leave to remain.

16. Ms Jones accepted the applicant had private life in the UK. He had lived here since 2018 and had 8 years of lawful residence. She did not accept that the decision had the effect or preventing the applicant from travelling to Pakistan to see his grandfather. The applicant had no strong links to the UK save for his employment and there was no interference with his family life in Pakistan. Section 117B of the Nationality, Immigration and Asylum Act 2002 applied and any interference with the applicant’s private life was proportionate.

17. Ms Jones relied on West Berkshire District Council v Secretary of State for Communities and Local Government [2016] EWCA Civ 441 at [17] to [19] and [21] and submitted the respondent’s decision was lawful and rational. The respondent applied more favourable terms, considered the applicant’s representations and acknowledged the individual facts of the case.

18. In summary, the respondent submitted the PP policy was lawful, the respondent took into account all relevant matters and the decision to refuse to grant short term leave to remain was not arguably irrational.

Applicant’s application for an adjournment

19. Mr Cox applied for an adjournment on the grounds the respondent failed to comply with her duty of candour in failing to disclose her practice and/or policies in relation to admission to the UK to attend trial. The respondent opposed the application.

20. I refused the application because there was nothing in the grounds of application or the skeleton argument in response to the detailed grounds of defence challenging the respondent’s decision on the grounds the respondent had failed to consider that the applicant needed to re-enter the UK to attend trial. There was no breach of the duty of candour on the part of the respondent. This point was raised at the hearing and the respondent took instructions on the arguments raised by the applicant at the hearing.

21. There was insufficient evidence to show that the refusal of an adjournment was arguably unfair or that this was a material consideration in the decision to defer the application for leave to remain as a skilled worker or the decision to grant short term leave to remain for the reasons given below.

Grounds

Ground 1: Failure to remedy the errors identified by Judge Blundell

22. Mr Cox did not rely on ground 1 which submitted that the reconsideration demonstrated the same lack of individualised assessment, the same failure to engage with submissions and the same failure to consider departure from the PP policy as identified by Judge Blundell.

23. I agree with Mr Cox and I am not persuaded by the applicant’s submissions in ground 1. The respondent did consider the applicant’s individual circumstances and the PP policy. The respondent considered whether to grant short term leave to remain and refused that request. In any event, the respondent is not required to address the defects identified by Judge Blundell in an earlier decision which has been withdrawn and replaced by the decision of 22 January 2026.

24. Following R (on the application of X and others) v SSHD [2021] EWCA Civ 1480, the respondent has an implied power under the Immigration Act 1971 to defer, or delay, taking a decision on an application for leave to remain. The issue is whether that power has been exercised lawfully which is addressed in ground 4. Ground 1 discloses no arguable public law error on the part of the respondent and I refuse permission.

Ground 2: Misdirection, fettering of discretion and pre-determination

25. Mr Cox did not rely on ground 2 in so far as it criticises the respondent for stating she is “unable” to decide the application and submits this demonstrates a fundamental misdirection as to the nature of the power being exercised. Mr Cox submits the respondent has failed to recognise she has a discretion at all and he addresses this in ground 4.

26. It is apparent from reading the decision as a whole that the respondent is refusing to make a decision on the applicant’s application because he has a pending prosecution. The use of the word “unable” is not indicative of a failure to consider discretion. The respondent considered the applicant’s circumstances in deciding whether to pause the application. Reference to being unable to make a decision does not arguably demonstrate the respondent was unwilling to entertain exceptions to the policy. Ground 2 fails to disclose an arguable public law error in the decision.

Ground 3: Failure to take material considerations into account

27. The applicant submits, in the grounds of application, that the respondent failed to consider the repeated requests for a quick decision, the length of time the applicant will have to wait before conclusion of the criminal proceedings and the fact that the applicant is not subject to a travel ban or bail condition.

28. This ground, as pleaded in the grounds of application, has no merit. The respondent explicitly considered expedition and acknowledged the applicant was able to leave the UK. The respondent set out the operation of paragraph 34K and explained the consequences of leaving the UK. Any failure to refer to the trial date when referring to the pending prosecution at Nottingham Crown Court is not arguably material. The respondent was aware at the date of decision that the application has been outstanding since October 2024. The respondent gave adequate reasons for concluding that, in the circumstances of the applicant’s case, it was appropriate to pause his application.

29. Mr Cox seeks to introduce a further material consideration which was not taken into account, namely that the applicant was required by his bail conditions to attend trial. This ground was not pleaded in the grounds of application or in the skeleton argument in response to the detailed grounds of defence. It was first raised at the hearing before me. Mr Cox applied for permission to amend the grounds, if required, on the basis this ground was obvious.

30. I refuse to grant permission to amend the grounds because the applicant has failed to make an application in accordance with The Tribunal Procedure (Upper Tribunal) Rules 2008 and no amended grounds have been submitted. Having considered the overriding objective, in my view, procedural rigour demands that the applicant complies with the Procedure Rules and there has been no significant change in circumstances. The applicant has been aware since December 2024 when he was charged with rape and granted bail that he is required to attend trial. This application for judicial review was made in February 2026 and this was not raised in the grounds of application or in the skeleton argument in response to the detailed grounds of defence.

31. In an event, this ground is not material to the decision to defer the decision on the application of leave to remain as a skilled worker or the decision to refuse short term leave to remain for the reasons given in grounds 4 and 5 below.

Ground 4: The Pending Prosecutions Guidance is unlawful

32. The grounds submit that the PP policy is unlawful because the direction applicable to the applicant’s cohort is unqualified and creates ambiguity. The applicant submits that the PP policy states that decision-makers "must consider each case on an individual basis". However, for those with no previous criminality where the potential maximum sentence could engage deportation considerations, the PP policy states that the decision-maker "must pause the case until the outcome of the court proceedings". Mr Cox does not rely on this ambiguity.

33. Having read the PP policy and taking into account the submissions of the parties, I am not persuaded that the PP policy is so unclear that those operating it cannot know with sufficient certainty what it means, with the result that decision-makers are not given effective guidance on how to exercise their discretion.

34. The respondent may express policy in unqualified terms because she retains a legal duty to consider whether to depart from that policy on the facts of the individual case: West Berkshire District Council v Secretary of State for Communities and Local Government [2016] EWCA Civ 441 at [17] to [19]. At [21] Laws LJ held:
“The second of our two principles is that a policy-maker is entitled to express his policy in unqualified terms. It would surely be idle, and most likely confusing, to require every policy statement to include a health warning in the shape of a reminder that the policy must be applied consistently with the rule against fettering discretion.”

35. The PP policy is not arguably ambiguous. The part of the PP policy dealing with the applicant’s cohort is not, in my view, expressed in such terms as to suggest there is no real discretion given the respondent retains a legal duty to consider whether to depart from the PP policy. It is apparent from the decision that the respondent considered whether to do so. She concluded that, having considered the applicant’s representations including his grandfather’s illness, it is appropriate to pause the application. She then gave brief but adequate reasons for why this is the case. The respondent considered the applicant’s representations and decided not to depart from the PP policy.

36. Further, the decision adequately explains that in deciding whether to pause the application, the maximum sentence is only one factor and the respondent must take into account other relevant factors which is consistent with the earlier statement that “The considerations relevant to any particular set of circumstances will depend on the facts of the case.” Contrary to the grounds, the guidance does make provision for considering individual circumstances and the impact of deferral. The respondent did not arguably fetter her discretion in maintaining the deferral of the applicant’s application.

37. It is not in dispute that there is a rational link between the reasons for deferring the applicant’s application for leave to remain as a skilled worker and the grounds upon which leave may be granted and refused. The applicant has been charged with rape and his character and conduct is relevant to the general grounds of refusal in Part 9 of the Immigration Rules. The potential maximum sentence for rape could engage deportation considerations upon conviction: R (X) at [45].

38. The rationale of the PP policy does not arguably interfere with the presumption of innocence and Mr Cox does not rely on this aspect of the grounds. The Immigration Rules provide that the respondent can take into account conduct other than criminal convictions in deciding whether the applicant’s presence in the UK is conducive to the public good. The fact that the applicant has been charged with rape is relevant to suitability and whether Part 9 of the Immigration Rules applies.

39. Mr Cox rightly concedes that there was no arguable defect in process. The guidance requires the respondent to review the case every 90 days to establish whether the outcome of the prosecution has been recorded on the PNC.

Ground 5: Irrationality, Disproportionality and Distinguishing R (X) v SSHD

40. The ratio in R (X) is applicable to the applicant’s case and factual distinctions relied on in the grounds fail to demonstrate otherwise. Mr Cox accepts there is a rational link between the reasons for deferring a decision on the applicant’s application and the grounds upon which leave could be granted or refused. The deferral of the applicant’s application for leave to remain does not prevent the applicant from travelling to Pakistan to visit his grandfather.

41. The applicant’s claim does not arguably engage Article 8. He does not have family life in the UK and there is no interference with any family life he has with his grandfather in Pakistan because the applicant can travel to Pakistan. There was insufficient evidence to show that any interference with his private life established whilst working in the UK has such grave consequences so as to interfere with his Article 8 rights. In any event, any interference with his private life is proportionate in the circumstances. The applicant has been working in the UK for a number of years and has limited leave to remain. He status is the UK can be described as precarious and attracts little weight under section 117B of the 2002 Act.

42. The respondent considered whether to grant a period of short term leave and refused to do so. The applicant’s submissions fail to show that the refusal was arguably unlawful. The Immigration Rules do not provide for a grant of leave to remain in the terms sought by the applicant. The refusal to grant 60 days leave as a skilled worker is not arguably unlawful taking into account all the circumstances of the applicant’s case. The same applies to Mr Cox’s submission that that the applicant should be granted leave to remain outside the Immigration Rules.

Refusal of Permission

43. The grounds and submissions failed to disclose an arguable public law error on the part of the respondent. The decision of 22 January 2026 was not arguably unlawful. For these reasons permission is refused. The application for judicial review is dismissed.

Application for permission to appeal

44. The applicant applied for permission to appeal on four grounds. It was arguable that:
a. the refusal to adjourn on the grounds the respondent failed to comply with their duty of candour;
b. the refusal to grant permission disagreed with the ground 4(b) given that UTJ Blundell granted permission on the same grounds;
c. there was misapplication of the approach to Article 8
d. the respondent failed to consider leave to remain to attend trial.

45. There was no arguable breach of the duty of candour. The applicant raised matters not referred to in the grounds of appeal at the hearing and the respondent made best endeavours to deal with matters/representations.

46. I am not bound by the decision of UTJ Blundell and I considered the circumstances of the applicant’s case and whether the PP policy and decision was lawful.

47. There was no arguable breach of Article 8 because on the facts asserted Article 8 was not engaged, notwithstanding the emotional trauma alleged by the applicant.

48. The applicant’s ability to attend trial was not an arguable material consideration.

49. For the reasons given above, permission to appeal is refused.

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