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NO AUTOMATIC RIGHT TO SETTLEMENT AFTER DISCRETIONARY LEAVE

Posted by Gunes Saybak on March 27, 2020

 

 

R (Ellis) v Secretary of State for the Home Department (discretionary leave policy; supplementary
reasons) [2020] UKUT 8
In this case, the Upper Tribunal ruled on whether the Home Office can depart from their
discretionary leave policy guidance (which provides that those who have completed 6 years of
discretionary leave (DL) should “normally” be granted indefinite leave to remain). The background
and findings of the case are set out below:
Background
The Appellant in these proceedings, Mr. Ellis, is a Jamaican national with two British national
children. He initially entered the UK on 7 th August 2000 as a visitor and subsequently obtained leave
to remain until 26 th January 2001. Whilst in the UK he formed a relationship with a settled person
and they married in 2002.
On 13 th August 2003, Mr. Ellis applied for leave to remain as the spouse of a settled person. This
application remained outstanding for quite some time. It was ultimately refused in a decision dated
29 th October 2010. In the interim, on 26 th March 2010, Mr. Ellis was convicted and sentenced to 12
months’ imprisonment for obtaining property by deception.
Sometime in mid-2011, Mr. Ellis applied for leave to remain based on his family life in the UK. This
application was successful, and he was granted 3 years DL from 14 th September 2011 until 13 th
September 2014. He extended his leave and was granted a further 3 years DL from 5 th April 2016
until 5 th April 2019.
During his second grant of DL, Mr. Ellis was sentenced to 4 months’ imprisonment for perverting the
course of justice.
Application for Indefinite Leave to Remain
On 9 th March 2019, Mr. Ellis applied for indefinite leave to remain having completed 6 years DL. At
this point, he had been in the UK for 7 ½ years.
The relevant section of the Discretionary Leave guidance states:
Those granted leave under the DL policy in force before 9 July 2012 will… normally… be eligible to
apply for settlement after accruing 6 years’ continuous DL.
The Home Office refused Mr. Ellis’s application 21 st March 2019 but granted him a further 3 years DL.
The main reason for refusal was based on Mr. Ellis’s criminal convictions, but the decision letter did
not elaborate on why the policy guidance was departed from.
Judicial Review Proceedings
Mr. Ellis challenged the decision by of judicial review. Following a grant of permission to proceed,
the Home Office sent Mr. Ellis a supplementary decision dated 25 th November 2019. The letter
stated:
“we are prepared to exercise discretion to grant more limited leave because your circumstances
have not changed since the first grant of Discretionary Leave, but we are not prepared to exercise
discretion to grant settlement considering the criminality that is detailed above”.
Mr. Ellis argued that the Home Office had not provided adequate reasons for departing from their
discretionary leave police.

The Upper Tribunal found that caseworkers can depart from the policy where circumstances permit,
for example in cases involving criminality.
Upper Tribunal Findings
The Upper Tribunal found that the original refusal of 21 st March 2019 had not provided adequate
reasons for departing from the policy. However, the supplementary decision was considered legally
adequate as:
In all the circumstances, I consider that the letter of 25 November 2019 … gave a legally adequate
reason for concluding that Mr Ellis’s case should not be treated as a ‘normal’ one: namely, his
criminality.
The application for Judicial Review was dismissed.
This case demonstrates that the general grounds for refusal under the Immigration Rules should still
be considered, even where an application is made outside the Rules.