Nino Henriques Nunes v Secretary of State for the Home Department

Transitional arrangements for applicants granted discretionary leave before a policy change normally preserve the earlier policy through to settlement. Later criminality thresholds do not apply retrospectively unless the policy clearly provides for that result. A decision-maker may depart from the normal position, but must give policy-compliant reasons.

Refusal of indefinite leave may fall within the ambit of Article 8, but separate settlement routes may justify different criminality thresholds. Length of residence is capable of being an exceptional circumstance, but is not determinative.

The claimant challenged the refusal of indefinite leave to remain after longstanding discretionary leave. The Secretary of State applied the current 12-month criminality threshold, while granting further discretionary leave.

The claimant alleged failure to apply transitional policy, discrimination under Article 14 read with Article 8 by comparison with applicants under Appendix FM, and failure to consider length of residence when assessing exceptional circumstances.

1. Ground One allowed. The transitional arrangements for persons granted discretionary leave before 9 July 2012 normally required the earlier policy to govern their route through to settlement. The later criminality threshold was not a free-standing exception applicable to pre-9 July 2012 criminality. The Secretary of State’s contrary interpretation was inconsistent with the policy wording and intention.
2. The word “normally” preserved discretion to depart from the usual outcome. Any departure required consideration of the policy and adequate reasons. R (Ellis) v SSHD supported that construction.
3. Ground Three was dismissed and was in any event obiter. Although refusal of indefinite leave could fall within the edge of Article 8, applicants under the discretionary-leave route and Appendix FM were not in a relevantly analogous situation. The different requirements of the routes justified different criminality thresholds.
4. Ground Four was dismissed. Length of residence was capable in principle of being an exceptional circumstance, but the decision letter had considered it. The Secretary of State was entitled to conclude that it was insufficiently exceptional or compelling.

First-instance judicial review. Permission was granted by Turner J on 2 June 2025. The High Court allowed Ground One and dismissed Grounds Three and Four.