Court orders grant of indefinite leave in case with historic conviction

The High Court has ordered the Home Secretary to grant indefinite leave to remain to a man who has held discretionary leave to remain for 15 years, first granted under the pre-July 2012 policy. The Home Secretary had tried to rely on a conviction that pre-dated the first grant of discretionary leave in justifying the refusal. The case is Jimoh v Secretary of State for the Home Department [2025] EWHC 3129 (Admin).

Background

The claimant entered the UK in 1989 at the age of five. In 1988 he was diagnosed with hepatitis B which later progressed to cirrhosis of the liver and diabetes which require lifelong treatment. One kidney was later removed. On 17 February 2001 he was granted indefinite leave to remain.

The claimant was sentenced to 30 months’ imprisonment for possession of Class A drugs with intent to supply on 23 June 2006. He was detained under immigration powers and served with a notice of intention to deport on 12 May 2008. A deportation order was signed on 1 December 2008, meaning that his indefinite leave to remain was cancelled.

He successfully had his deportation order revoked in 2010 and he was granted discretionary leave for three years on 14 October 2010. In July 2012, when Appendix FM was introduced, the three year grants of discretionary leave were ended but transitional provisions were put in place for those granted before that date. So the claimant continued to be granted three year periods of discretionary leave.

On 27 October 2022 the claimant’s daughter was born. As neither of her parents was settled, she does not have status, however if either parent obtains indefinite leave to remain while she is under 18 then she will be entitled to register as a British citizen. On 3 October 2023 the claimant applied for indefinite leave to remain. In April 2024 this was refused on suitability grounds and he was granted discretionary leave until May 2027.

The judicial review 

The claimant sought judicial review on the grounds that the following were not considered:

i. the pre-2012 DL policy,

ii. the Medical Claims policy (version 8.0, 19 October 2020), and

iii. the best interests of D (particularly the barrier to her registration as a British citizen).

After permission was granted, the Home Secretary agreed to reconsider the decision and a fresh refusal was issued on 22 February 2025 which was almost identical to the first one but now included reference to the discretionary leave policy. The claimant filed amended grounds.

A few days before the substantive hearing was to take place, the Home Secretary offered to withdraw the decision and remake it again. As a result, the hearing was adjourned on the day and relisted. A third refusal was issued on 23 September 2025.

The grounds of challenge at the time of the substantive hearing were that the policy was misapplied/irrelevant considerations were taken into account as the policies mandated a grant of indefinite leave unless there was a lawful basis to depart from them, and that the conclusion by the Home Secretary that there were compelling reasons to refuse indefinite leave was Wednesbury unreasonable.

The High Court’s decision

The court set out the wide discretionary held by the Home Secretary to grant leave to remain, including indefinite leave. The court referred to the discretionary leave policy which states “Where an individual has accrued 10 years’ lawful residence under the DL policy and applies for settlement, you must consider Part 9 of the Immigration Rules”.

The claimant relied on R (Ellis) v SSHD (discretionary leave policy; supplementary reasons) [2020] Imm AR 812 (our write up is here). In that case, the Upper Tribunal had held that a criminal conviction since the last grant of discretionary leave could justify departure from the usual position that a person can get settlement after ten years. As the High Court noted, “Ellis does not support the proposition that any historic conviction can justify departure”.

The claimant also argued that his case fell within the Home Office’s Medical Claims policy, which states:

when a claimant has held DL for 10 years (or 6 years under the transitional provisions of the DL policy) and continues to qualify on the same basis as the last grant of DL, you would generally grant ILR unless there is a compelling reason not to do so.

It was submitted that the grant of discretionary leave was evidence that no “compelling reason” existed. Submissions were also made on the best interests of the claimant’s child and the irrationality of the position that such an historic conviction outweighs all the other factors in favour of the claimant.

The High Court considered Ellis and said that the Home Secretary’s:

reasoning conflates a rule based mandatory refusal scheme with a policy based discretionary pathway expressly designed to carry those with pre-2012 DL through to settlement absent new adverse developments. That conclusion is reinforced by the Medical Claims Policy which adds a further presumption of settlement in cases involving serious health conditions.

The court said that the two policies taken together “create a strong presumption that individuals with serious medical conditions who have complied with the rules will enjoy continuity and stability in their immigration status”. The court also concluded that the Home Secretary’s reasoning on the section 55 duty to treat the best interests of the child as a primary consideration “falls short”. The judicial review was allowed on the first ground and the court did not proceed to consider the irrationality ground as it was academic.

Interestingly, the court did not simply quash the order but said:

Given the Court’s conclusions on the proper construction of the relevant policies, the only lawful course is to grant ILR; remittal would serve no legitimate purpose and would cause further delay. The Court exercises its power under section 31 of the Senior Courts Act 1981 to grant such relief as is just; where the policy framework leaves no lawful basis for refusal, and the outcome is inevitable, substitution rather than remittal is appropriate.

Unless the Home Secretary appeals (which I would not be remotely surprised by), the claimant should now be granted indefinite leave to remain.

Conclusion

I am not sure how many people are in the same position as the claimant, but this certainly seems to have the potential to be an incredibly helpful decision to a probably very small group of people.