In this article our head of immigration Leena Chouhan examines a court case concerning indefinite leave to remain.
The High Court has ordered the Home Secretary to grant indefinite leave to remain to a man who had held discretionary leave for 15 years under the pre July 2012 policy. However the Home Secretary relied on a criminal conviction that pre dated the first grant of discretionary leave when refusing settlement. The case is Jimoh v Secretary of State for the Home Department [2025] EWHC 3129 (Admin).
Court Case Timeline
First the claimant entered the UK in 1989 at the age of five. He has lived with serious medical conditions since childhood. These include hepatitis B which progressed to cirrhosis diabetes and the removal of a kidney. He was granted indefinite leave to remain in 2001.
Later in 2006 he received a 30 month sentence for a drugs offence. As a result, deportation action followed and his indefinite leave was cancelled. Nevertheless, the deportation order was revoked in 2010. He was then granted discretionary leave for three years. Although the discretionary leave regime changed in July 2012 transitional provisions applied. Therefore, the claimant continued to receive further grants of discretionary leave.
In 2023 the claimant applied for indefinite leave to remain. However, the application was refused on suitability grounds. The Home Secretary again relied on the historic conviction. Instead further discretionary leave was granted. Consequently, the claimant brought a judicial review challenge.
The High Court then considered whether the relevant policies had been properly applied. In particular this included the pre 2012 discretionary leave policy the Medical Claims policy and the duty to treat the best interests of the claimant’s child as a primary consideration. The court found that they had not.
The Home Secretary placed reliance on R (Ellis) v SSHD. However the court rejected that approach. It made clear that Ellis does not support the proposition that any historic conviction can justify departure from settlement. Instead the court found that the reasoning wrongly treated a discretionary policy pathway as if it were a mandatory refusal scheme.
Medical Claims Policy
Importantly the court placed significant weight on the Medical Claims policy. That policy creates a presumption in favour of settlement for individuals with serious medical conditions who have held discretionary leave for the required period and continue to qualify on the same basis. Taken together the policies create a strong expectation of continuity and stability unless there is a lawful reason to depart from them.
In addition the court found that the Home Secretary’s assessment of the child’s best interests was inadequate. This was particularly so given the impact of refusal on her ability to register as a British citizen.
Unusually the court did not remit the matter for reconsideration. Instead it held that the only lawful outcome was a grant of indefinite leave to remain. Accordingly the court exercised its power to substitute that decision directly.
Unless the decision is appealed the claimant should now be granted settlement.
Finally, this judgment is likely to assist a small but important group of individuals. In particular it may help those who remain on long term discretionary leave under the pre 2012 regime and face refusal based solely on historic convictions with no new adverse conduct.
For more information on indefinite leave to remain visas
If you would like more information on our visa services practice for immigration into the UK please contact Leena Chouhan at [email protected] or call 00442075972