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

The transitional arrangements in a discretionary-leave policy must be read as a whole and in light of their protective purpose. A person granted discretionary leave under the former policy before 9 July 2012 normally remains on that route through to settlement. The reference to six years’ continuous leave is illustrative, not restrictive: the applicable period may be ten years where the person fell within an exclusion category, unless settlement was personally denied by Ministers. A criminal sentence known about when earlier grants were made cannot be treated as new criminality justifying departure from that protection. The Secretary of State retains a residual discretion, but must apply the policy correctly and give a good reason for departure. The court may quash an unlawful decision, but ordinarily must remit the exercise of a statutory power to the decision-maker.

Mr Jimoh, a Nigerian national, had been granted discretionary leave before 9 July 2012 after a criminal conviction and later received further grants. After more than ten years of leave, he applied for indefinite leave to remain on long-residence and medical grounds. The Secretary of State refused indefinite leave, relying on the conviction, but granted further discretionary leave. The Administrative Court, in [2025] EWHC 3129 (Admin), quashed the decision and ordered the grant of indefinite leave. The appeal concerned whether the historic conviction could be relied upon again under the transitional arrangements and medical policy, and whether the court could order a grant rather than remit the matter.

The appeal was dismissed on ground 1 and allowed on ground 2.

1. Construction of the policies. The power to grant leave derives from section 3(1) of the Immigration Act 1971, not from the Immigration Rules. The policies are public statements governing a wide statutory discretion. Their construction is an objective question of law. They must be read as a whole, although they are not legislation and may contain apparent anomalies. The Secretary of State may depart from a policy only after taking it into account and identifying a good reason on the facts.
2. Transitional arrangements. Paragraphs 1 to 4 of Policy 3 form a sequence. Paragraph 1 is an inclusive protective provision. Those granted discretionary leave under Policy 1 before 9 July 2012 normally continue to be dealt with under that policy through to settlement. The reference to six years’ continuous leave is illustrative. For a person in an exclusion category, the relevant period is ten years, unless Ministers have personally denied settlement with reasons. Mr Jimoh had therefore accrued the relevant period and had an expectation of settlement absent such a decision.
3. Paragraph 3 concerns significant changes since the last grant of discretionary leave. Its criminality limb is directed to a sentence imposed since that grant, not a sentence known about and taken into account when earlier grants were made. Reading it otherwise would give the transitional arrangements a harsher effect than the remainder of Policy 3. The approach in R (Ellis) v Secretary of State for the Home Department [2020] UKUT 82 (IAC) was materially different because the relevant departure there was supported by a subsequent conviction. Decision 4 therefore misinterpreted the relationship between Policy 1 and Policy 3.
4. Policy 4 incorporates Policy 3 and supports the same conclusion. It was unnecessary to decide whether Policy 4 goes further than Policy 3.
5. Remedy. The Judge was right to quash decision 4 but wrong to order the Secretary of State to grant indefinite leave. Following R (LND1) v Secretary of State for the Home Department [2024] EWCA Civ 278; [2024] 1 WLR 4433, the normal remedy for an unlawful exercise of a statutory power is quashing and remittal. R (Imam) v Croydon London Borough Council [2003] UKSC 45; [2025] AC 335 concerned an unqualified statutory duty and was distinguishable. The matter was remitted to the Secretary of State for reconsideration.

• Court of Appeal (Civil Division): dismissed the appeal on ground 1 and allowed it on ground 2. The mandatory order was set aside and the matter remitted.
• High Court, King’s Bench Division (Administrative Court): in [2025] EWHC 3129 (Admin), quashed decision 4 and ordered the Secretary of State to grant indefinite leave to remain.