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Indefinite Leave to Remain victory for legacy cases granted “old style” Discretionary Leave to Remain

Thursday 9 July 2020

Mark Symes of the Garden Court Immigration Team was instructed by Joshi Advocates Ltd who brought this claim for judicial review.

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Obtaining indefinite leave to remain (ILR) sooner rather than later is the understandable objective of individuals with limited leave in the UK who intend to make their lives here. But the current rules make it a long haul for people granted leave for non-standard reasons, for example on human rights grounds. They face multiple expensive applications for further leave. Having settled status here helps stable planning for the future, making travel arrangements and job applications more straightforward.

The July 2012 reform of human rights applications ended the previous regime whereby two spells of discretionary leave to remain (DLR), each of three years, gave a six year route to ILR. Under the new (and current) system there was to be a ten-year route to ILR under the various Immigration Rules addressing private and family life.

But there was transitional protection. Those granted leave before 9 July 2012 continued on the speedier track to ILR. So too did people who received a written commitment to consider their case before 9 July 2012 which had not been honoured, and also those whose grant of leave followed a reconsideration of a pre-July 2012 refusal.

In JR/3371/2019 the UT considered a case where an asylum appeal had failed; further representations had then been rejected. Then DLR was granted under the legacy programme, after the July 2012 changes. Once six years of DLR had been clocked up, the applicant sought ILR. But this was refused. The Home Office argued throughout the proceedings that the date of decision was the critical issue, and that a legacy grant did not represent any acknowledgment that the earlier decision was mistaken.

The judicial review claim was granted permission and succeeded at the final hearing. The UT found that the legacy grant represented a finding that the earlier fresh claim refusal had been wrong, based on the same evidence as was previously available. Accordingly the transitional protection applied, even though the decision post-dated July 2012. The very fact that periods of 36 months, rather than 30 months, of leave had been granted in the past, strongly suggested that the applicant was on the old, rather than the new route to settlement.

This decision will hopefully help many other cases still in the system. Notably many legacy grants of leave were based on the same information that had previously been on file: to that extent they were usually reversals of earlier decisions based on the same evidence. 

Whilst the decision is presently unreported, such decisions are perfectly citeable, as all substantive immigration judicial reviews are treated as “reported”, whether or not they have been given a formal headnote by the UT: see Nawaz [2017] UKUT 288 (IAC).

Mark Symes was instructed by Joshi Advocates Ltd who brought this claim for judicial review.

The judgment is available for download here. 

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