Court of Appeal upholds route to settlement despite historic offending
The Court of Appeal has confirmed that the Home Office misunderstood its own policy on the significance of historic offending for people otherwise entitled to be granted settlement following a long period with leave to remain on human rights grounds.
The respondent before the Court of Appeal, Mr Jimoh, arrived in the UK in around 1990 as a small child, but the Home Office sought to deport him after he pleaded guilty to possession of Class A drugs with intent to supply in 2005. However, he won his appeal against deportation on human rights grounds, in part because of his poor health.
On 14 October 2010 he was granted discretionary leave to remain in the UK (“DL”), which was extended for three years at a time until 2024, when he applied for settlement (indefinite leave to remain or “ILR”). Mr Jimoh’s status was subject to Home Office policy guidance (“the DL policy”), which indicated that people with DL should be entitled to ILR after six years, or ten if they had committed serious offences. The DL policy underwent a major overhaul in 2012, when the Home Office radically changed its approach to make it harder for offenders to be granted settlement, but Mr Jimoh argued that transitional arrangements preserved the pre-2012 position for those who had had DL since before 2012 and had not re-offended.
However, the Home Office refused Mr Jimoh’s application for ILR, relying on his 2005 offence, and Mr Jimoh sought judicial review.
The key question was whether the transitional arrangements to the DL policy permitted the Home Office to refuse ILR on the basis of the 2005 offending, or whether it was only new offending which might permit refusal.
In the Administrative Court, Ms Justice Obi decided that the DL policy did not permit the Home Office to deny ILR on the basis of historic offending alone, as that would undermine the purpose of the transitional arrangements in the DL policy, which had been put in place to ensure that people like Mr Jimoh were not disadvantaged by the 2012 changes.
Obi J also held that a separate policy, relating to those granted DL on medical grounds (“the medical claims policy”) reinforced Mr Jimoh’s position, in that it said that someone who has completed the required six or ten years with DL should be granted ILR, unless there was a ‘compelling reason’ not to. That strengthened the expectation that medically vulnerable applicants would be granted settlement once they met the qualifying period.
Finally Obi J held that the SSHD had failed to discharge her statutory duty to treat the best interests of Mr Jimoh’s daughter as a primary consideration.
The Home Office appealed to the Court of Appeal on the basis that the Judge had misunderstood the policies (it did not appeal in respect of the best interests of Mr Jimoh’s daughter).
Giving judgment for the Court of Appeal, Lady Justice Elisabeth Laing observed that parts of the policies in question were ‘difficult to interpret’, and that policies, being drafted by non-lawyers and often being subject to informal change, ‘may develop apparent anomalies and internal inconsistencies’ (which was undoubtedly the case here). Elisabeth Laing LJ agreed that when a court is ‘mak[ing] overall sense of a policy’, it is necessary, where possible, ‘to read the relevant parts of the policy as a whole in order to work out its overall intention on the point at issue’: in other words, policies need to be understood as a whole and actual or apparent inconsistencies resolved or even overlooked, in favour of an interpretation which ensures that the overall thrust of the policy makes sense.
As to the DL policy, Elisabeth Laing LJ said that the reference in its transitional arrangements to ‘significant changes’ must mean ‘“significant changes” since the last grant of DL’, and that ‘the reference to falling for refusal on grounds of criminality is a reference to a criminal sentence which has been imposed since the last grant of DL, and is not a reference to a criminal sentence which has been known about all along’. She added that ‘in the light of the evidently protective purpose of transitional arrangements’, the relevant paragraph in the DL policy ‘signals that if the applicant was on a path to settlement under [the pre-2012 policy], he would get ILR after the relevant period of DL: six, or ten, years, as the case might be’, i.e. that this continued to be the position after the 2012 changes.
Accordingly, the Home Office ‘did not correctly understand the relationship’ between its own policies. The decision to refuse to grant Mr Jimoh ILR was therefore wrong in law.
As to the medical claims policy, Elisabeth Laing LJ held that it ‘supports the conclusion’ that Mr Jimoh was entitled to ILR but otherwise considered it unnecessary to deal with it separately.
The Home Office did succeed on a subsidiary point, namely in showing that Obi J should not have made a declaration that Mr Jimoh was entitled to settlement and that the Home Office should redetermine his claim on an expedited basis. Nevertheless, as things stand, his ILR application will have to be redetermined on a correct understanding of the policies.
The overall picture is therefore that, for a relatively limited category of people who have had DL continuously since before 2012, the Home Office is not entitled to rely on their previous offending as a reason to refuse settlement. Only a change of circumstances – which could include more recent offending – would justify this. For those entitled to stay for medical reasons, the position appears still stronger, as Obi J’s conclusions remain undisturbed.
Alasdair Mackenzie KC appeared for Mr Jimoh, leading Daniel Furner, solicitor-advocate at Birnberg Peirce, who had appeared in the Administrative Court, and the instructing solicitor was Nigel Leskin of Birnberg Peirce.
