The Secretary of State for the Home Department v MD Shahadat Hossain

A finding that an applicant was wrongly accused of TOEIC deception does not automatically require all intervening residence to count as lawful residence for settlement. Redress requires a fact-specific exercise of discretion which takes account of the original injustice and subsequent events. The Secretary of State may consider absconding from immigration bail and significant delay in seeking to regularise immigration status. Bail conditions must be obeyed even where the underlying immigration decision was wrong. Historical injustice and its consequences must receive proper consideration, but they do not compel indefinite leave to remain. A reviewing court must respect a rational assessment of the relevant circumstances.

The respondent, a Bangladeshi national, entered the United Kingdom lawfully as a student. In 2014, the Secretary of State refused further leave and issued a removal notice because she considered that he had used deception in an English language test. His judicial review challenge failed. He subsequently failed to comply with immigration bail reporting requirements. He claimed asylum in 2018 and applied for leave on human rights grounds in 2021. The asylum claim was later withdrawn.

In March 2023, the First-tier Tribunal allowed his human rights appeal and found that he had not used deception. The Secretary of State granted 30 months’ limited leave but refused his subsequent application for indefinite leave on long-residence grounds. In October 2025, the Upper Tribunal quashed that refusal. It held that, absent new information, the respondent had to be treated as satisfying the continuous residence requirement. The Secretary of State appealed, challenging the tribunal’s interpretation of the TOEIC authorities and its interference with her discretion.

Appeal allowed unanimously on both grounds. The Upper Tribunal’s quashing order was set aside and the respondent’s application for judicial review was dismissed.

1. The guidance in Ahsan and others v SSHD [2017] EWCA Civ 2009 was qualified. Following a successful challenge to an allegation of deception, the Secretary of State should, so far as possible, address the consequences of the error. However, the guidance did not establish an absolute rule governing every subsequent application. Its reference to treating leave as having continued was expressly subject to other things being equal. The qualified concessions recorded in Khan and others v SSHD [2018] EWCA Civ 1684 likewise preserved consideration of individual circumstances and future applications. The contrary interpretation would improperly disregard intervening events, however much time had passed. The analysis in R (Malhi) v SSHD was endorsed (paras 49–53).
2. The respondent’s case therefore required consideration of all the circumstances, including the wrongful deception allegation. The Secretary of State was entitled to consider his subsequent absconding from immigration bail. The obligation to obey a court order despite an error in its underlying basis, illustrated by R (on the application of Majera) v Secretary of State for the Home Department [2021] UKSC 46, applied by analogy to bail conditions. The original error did not excuse non-compliance. The Secretary of State could also consider the significant delay before the respondent sought to regularise his position. There was no proper basis for judicial interference with the weight attributed to his absconding (paras 54–55).
3. Historical injustice and its consequences were relevant to whether further leave should be granted and its duration. That approach was supported by AA (Afghanistan) v Secretary of State for the Home Department & Anor [2007] EWCA Civ 12 and SL (Vietnam) v Secretary of State for the Home Department [2010] EWCA Civ 225. The Secretary of State had properly considered the injustice. Her decision to grant limited leave for 30 months, the typical maximum recommended in the relevant guidance, was rational (paras 56–58).
4. The respondent’s pending application for further leave and his existing leave under section 3C of the Immigration Act 1971 remained unaffected. Determination of that application remained a matter for the Secretary of State (para 59).

• Court of Appeal (Civil Division): In [2026] EWCA Civ 1310 , unanimously allowed the Secretary of State’s appeal on both grounds, set aside the quashing order and dismissed the judicial review application.
• Upper Tribunal (Immigration and Asylum Chamber): On 17 October 2025, UT Judge Neville allowed judicial review of the refusal of indefinite leave dated 29 December 2023. He quashed the refusal and held that, absent new information, the respondent should be treated as meeting the continuous residence requirement. Permission to appeal was refused by the tribunal and subsequently granted by the Court of Appeal.
• First-tier Tribunal: In earlier related proceedings, allowed the respondent’s human rights appeal on 29 March 2023 and found that he had not used TOEIC deception.
• Upper Tribunal: In the original challenge to the 2014 removal decision, refused permission to apply for judicial review and certified the application as totally without merit.