Lawyer error results in invalidity of settlement application

The Upper Tribunal has upheld a decision to reject an application for indefinite leave to remain as invalid because the wrong box was ticked by the applicant’s lawyer at the outset, meaning the wrong application form was used. An opportunity provided by the Home Office to rectify the error before the invalidity decision was unfortunately not taken up. The case is R (Tahir Waseem Noor) v Secretary of State for the Home Department JR-2024-LON-002627.

The applicant was granted limited leave to remain as the parent of a British child in the ten year route to settlement in October 2013. On 7 June 2023 he made an in-time application to extend his leave and as the application was still pending when he reached the point of holding leave for ten years, he later varied his application to one for indefinite leave to remain.

In response to the question “What immigration permission were you most recently granted?”, his representatives ticked the box stating “Private Life”. The cover letter also referred to the application as having been made on the basis of long residence, referring to SET(LR). This was incorrect as his leave had all been granted as a parent.

On 19 May 2024 the Home Office wrote to the applicant’s representatives and advised them that as the applicant had not last been granted leave on the private life route, the application as submitted was unlikely to succeed. They advised that the correct application form should be submitted by 2 June 2024 and it would be treated as a variation of his application, meaning that section 3C leave would be maintained. An email address for correspondence was provided.

On 4 June 2024 the applicant’s representatives emailed a different address and asserted that the application had been validly made. The application was rejected as invalid on 17 June 2024.

An out of time application for judicial review was issued on 20 September 2024. Despite the “largely unparticularised” grounds of claim, an extension of time and permission were granted because it appeared that there was a disputed factual issue as to whether the right application had been submitted.

By the time of the hearing it was common ground between the parties that the application did not meet the validity requirements of the immigration rules, so the remaining issue was whether the Home Secretary should have exercised her discretionary power to waive the validity requirement and consider the application.

The Upper Tribunal referred to the recent decision of R (Islam) v Secretary of State for the Home Department [2025] EWCA Civ 458 (our write up) and said that the wording of the rules under consideration there was identical to this case. As was the case in Islam, the Upper Tribunal concluded that there was no obligation on the Home Secretary to consider exercising discretion.

It was also argued that discretion should have been exercised as set out in the guidance. The Upper Tribunal held that the case fell within the category of cases where an applicant was able to take action in order to meet the validity requirements, but failed to do so. That failure meant that there was no requirement under the guidance for the use of discretion to be considered. Rejection of the application was held not to be irrational and the judicial review was dismissed.

I do think that the forms are a bit confusing, as the long residence one at no point makes it clear that this is not the form for those applying in the parent route, with the eligibility page redirecting partners only. Further, the parent route form is not particularly easy to navigate to, in my opinion. So these mistakes can happen and I think are understandable, but when the Home Office rightly provides an opportunity to correct the error, it is important that this is then done.