Shahid, R (on the application of) v Secretary of State for Home Department

A discretionary-leave policy may lawfully provide for staged grants of leave before settlement. The Secretary of State is entitled to attach considerable weight to such a policy, provided it is considered rationally and individual circumstances are not ignored. Long residence, established private and family life, and the absence of an expected change in circumstances do not necessarily make a case exceptional or require immediate indefinite leave.

Where removal would breach Article 8, granting limited discretionary leave may adequately protect the individual’s rights. Article 8 does not generally impose a positive obligation to grant indefinite leave merely because settled status would improve certainty and social integration. The threshold for such a positive obligation is high.

The claimant sought judicial review of decisions granting him three years’ discretionary leave to remain but refusing indefinite leave to remain. An adjudicator had allowed his human-rights appeal, finding that removal after his lengthy residence and development of substantial ties in the United Kingdom would breach Article 8.

Permission to apply for judicial review was initially refused, but was granted by Maurice Kay LJ. The claimant argued that the Secretary of State had applied the discretionary-leave policy rigidly, acted irrationally, and breached Article 8 by failing to grant settlement. The court considered whether the policy had been lawfully applied and whether limited leave itself infringed the claimant’s rights.

1. Judicial review refused. The Secretary of State had lawfully exercised a discretionary power outside the Immigration Rules. The policy was not challenged as unlawful, and the Secretary of State was entitled to give it substantial weight in maintaining a consistent immigration system.
2. The claimant’s circumstances did not require treatment as exceptional. His long residence, established family and community ties, and the likelihood that his circumstances would remain stable did not make it irrational to apply the policy. Change remained possible, and granting immediate settlement could create pressure for comparable exceptional treatment in other cases.
3. The adjudicator’s finding that removal would breach Article 8 was not inconsistent with granting limited discretionary leave. The challenged decision permitted the claimant to remain in the United Kingdom and placed him on the policy route towards indefinite leave, normally absent a substantial change of circumstances.
4. The court adopted a broader review than ordinary Wednesbury review for the Article 8 issue. It considered whether limited leave interfered with Article 8(1) and, if so, whether the interference was justified under Article 8(2). The uncertainty and reduced confidence caused by limited leave did not reach the high threshold required to establish a positive obligation to grant indefinite leave. The claimant remained free to work, purchase property, receive relevant benefits, and deepen his ties in the United Kingdom.
5. Any interference was, in any event, mild and justified by the need for a firm and consistent immigration policy. The application for permission to appeal was refused. There was no order as to costs.

• High Court (Administrative Court): permission to apply for judicial review was ultimately granted by Maurice Kay LJ on 20 May 2004. Mr Justice Gibbs refused the claim and refused permission to appeal.