Nino Henriques Nunes v Secretary of State for the Home Department

Mr Southey KC submits that the terms of the Transitional Arrangements in the DL Policy v11 are clear. The individual will be entitled to ILR if they have had DL since before 9 July 2012 unless (a) they fall within the Restricted Leave policy (which does not apply here); or (b) there has been a change of circumstance. The Criminality Thresholds (set out at paragraph 29 above) apply to convictions after 9 July 2012. They do not apply retrospectively to convictions before that date.

He submits that the entire thrust of the Transitional Arrangements is that the presumption in favour of granting ILR, which would have arisen before July 2012, applies unless there has been a material change of circumstances. This accords with principles of fairness; in other words, it would be unfair to deprive someone of the ability to get ILR by changing the policy after they have commenced on that route, i.e. by applying for periods of DL in the anticipation that they will lead up to the ability to apply for, and be granted, ILR.

Under the version of the DL Policy (v3) that applied before 9 July 2012, the Claimant would have been able to apply for ILR after accruing 6 years DL. The clear expectation of the policy was that an applicant would “normally” be granted ILR if he met those criteria. This is supported by Ellis at [40]:

“Second, the DL Policy applicable before 9 July 2012 was that those who had accrued 6 years’ continuous leave would ‘normally’ be eligible for ILR. The words used are ‘eligible to apply for ILR’, but the context here includes the second paragraph quoted at [23] above. When those paragraphs are read together, a reasonable and literate reader would understand that – at least in a ‘normal’ case – an individual who has already been granted 3 years’ DL will be granted a further 3 years’ DL on the second application and ILR on the third.”

Mr Tabori submits that the Claimant has misread paragraph [4] of the Transitional Arrangements (set out at paragraph 28 above). He focuses on the sentence “if the circumstances remain the same, the individual does not fall within the restricted leave policy and the criminality thresholds do not apply, a further period of 3 years’ DL should normally be granted”. He submits that this sentence outlines three exceptions to the general position (the general position being that those granted leave under the DL policy in force before 9 July 2012 will normally continue to be dealt with under that policy through to settlement). The first excluded category is those with restricted leave (which the Claimant accepts, although it does not apply to him). Second, those where there has been a material change of circumstances; and third, those where the Criminality Thresholds apply. Mr Southey KC submits that there are only two exceptions, because the Criminality Thresholds only apply where there is new criminality, and therefore there has been a material change. But Mr Tabori submits that the Criminality Thresholds present a free-standing exception to the general rule.

Mr Tabori submits that his is the natural reading of the Transitional Arrangements.

I accept Mr Southey KC’s submissions on this Ground. Firstly, his is the interpretation which best fits with the words of the Transitional Arrangements section of the DL Policy. Paragraph [3] draws a distinction between those granted leave under the DL Policy before 9 July 2012 and those after that date, and states that those who had leave before will “normally” be dealt with under the earlier policy. There are exceptions, but the starting point is that the earlier policy applies. If the intention was that the new Criminality Thresholds would apply, and the pre-July 2012 policy would not apply in that regard, then it would be reasonable to expect the language to be entirely different and to set out clearly the approach to be taken.

Secondly, Mr Southey KC’s interpretation accords better with what appears to have been the policy intention at the time. This must have been to preserve the rights of a person who had relied on the policy up to July 2012, unless one of the exceptions applied, or there was some other particular reason to depart from the policy. As Mr Southey KC submits, this would accord with normal principles of not changing policy or law with retrospective effect, unless that is made clear. As is apparent from Ellis, the SSHD can still refuse ILR and depart from the “normal” position, but then she has to clearly explain why she is doing so.

Thirdly, Mr Tabori’s submission relies on counsel for the SSHD and Chamberlain J misunderstanding the policy in Ellis. Indeed, it seems likely that the SSHD has never previously advanced this interpretation of the DL Policy. In Ellis, Chamberlain J and counsel assumed that the DL Policy would allow someone with pre-July 2012 criminality to continue to apply and be granted ILR. Otherwise, Mr Ellis could have been refused ILR on that ground alone, and it would have been unnecessary to find a reason to depart from the policy in the Transitional Arrangements.

Although I am not bound by Ellis, it is a weighty consideration. I think it unlikely that both counsel for the SSHD and Chamberlain J would have misinterpreted the policy in this way. Ellis therefore supports the conclusion I have reached relying on the first and second reasons set out above, that Mr Southey KC’s interpretation is correct and the SSHD’s application of the DL Policy in this case was wrong.

For these reasons I conclude that Ground One is allowed.

Ground Three only arises if I am against the Claimant on Ground One, and therefore paragraph 9.4.1(a) of the Immigration Rules falls to be applied to him. Mr Southey KC submits that the effect of applying paragraph 9.4.1(a) to the Claimant is discriminatory and contrary to Article 14 when read with Article 8.

Mr Southey KC posits the comparator as being a person who falls within Appendix FM of the Immigration Rules and would thereby be in a preferential position. Appendix FM provides a route for those seeking to enter or remain in the UK on the basis of their family life and, crucially, paragraph 9.4.1(a) did not apply to those who fell within Appendix FM at the relevant time, because of the effect of paragraph 9.1.1 of the Rules. This is accepted by the Defendant.

From 2012-2025, the relevant part of Appendix FM stated:

“S-ILR.1.4.The presence of the applicant in the UK is not conducive to the public good because they have been convicted of an offence for which they have been sentenced to imprisonment for less than 4 years but at least 12 months, unless a period of 15 years has passed since the end of the sentence.”

The critical distinction therefore is that if the Claimant had applied under Appendix FM, because his sentence was more than 15 years ago, that would not have been a bar to settlement. However, if paragraph 9.4.1(a) is applied, with its unlimited period, there is a bar to settlement.

On 14 October 2025, Appendix FM was amended to remove the apparently more generous S-ILR.1.4 provision set out at paragraph 50 and to apply the criminality threshold of 12 months to all cases.

As I have found for the Claimant on Ground One, and therefore found that paragraph 9.4.1 should not automatically be applied, Ground Two does not arise, and what is set out below is necessarily obiter.

There are four stages to the analysis under Article 14: whether the matter challenged falls within the ambit of the substantive Article, here Article 8; whether the Claimant has a protected “status”; what is the comparator or person in an analogous situation; and the justification for the alleged discriminatory treatment.

The first issue is whether the subject matter of the claim falls within the ambit of Article 8. In M v Secretary of State for Work and Pensions [2006] 2 AC 91 at [4] – [5], Lord Bingham analysed the ambit of Article 8 as follows:

“4 It is not difficult, when considering any provision of the Convention, including article 8 and article I of the First Protocol (“article 1P1”), to identify the core values which the provision is intended to protect. But the further a situation is removed from one infringing those core values, the weaker the connection becomes, until a point is reached when there is no meaningful connection at all. At the inner #extremity a situation may properly be said to be within the ambit or scope of the right, nebulous though those expressions necessarily are. At the outer extremity, it may not. There is no sharp line of demarcation between the two. An exercise of judgment is called for. Like my noble and learned friend in para 60 of his opinion, I cannot accept that even a tenuous link is enough. That would be a recipe for artificiality and legalistic ingenuity of an unacceptable kind.

5 Like Kennedy LJ in the Court of Appeal, I do not think that the enhanced contribution required of Ms M impairs in any material way her family life with her children and former husband, or her family life with her children and her current partner, or her private life. No doubt Ms M has less money to spend than if she were required to contribute less (or would do so, but for the discretionary adjustment to which my noble and learned friend refers in para 46 of his opinion). But this does not impair the love, trust, confidence, mutual dependence and unconstrained social intercourse which are the essence of family life, nor does it invade the sphere of personal and sexual autonomy which are the essence of private life. I regard the application of a rule governing a non-resident parent’s liability to contribute to the costs incurred by the parent with care, even if it results in the non-resident parent paying more than she would under a different rule, as altogether remote from the sort of abuse at which article 1P1 is directed.”

The subject matter here is that under paragraph 9.4.1(a) the Claimant is not entitled to ILR and therefore must rely only on DL. This is necessarily a more precarious immigration status, see R (Rhuppiah) v SSHD [2018] UKSC 58 at [44], than would be the case if he had ILR. It was said in EB (Kosovo) [2008] UKHL 41 at [14] that such insecurity of immigration status could impact upon a person’s private life.

Mr Southey KC relies on Hoti v Croatia (app 63311/14), where the ECtHR held that the insecurity of the Applicant’s residence status violated Article 8. He also referred to ML v Slovakia (app 34159/17), where the ECtHR said at [38], “[A] criminal conviction does not deprive the convicted person of his or her right to be forgotten” (albeit in the context of the right to privacy, where a mother challenged misleading newspaper articles about her dead son’s criminal convictions).

Mr Tabori referred to R (MBT) v SSHD (Restricted leave: ILR: disability discrimination) [2019] UKUT 00414. In that case, Nicol J and UTJ Stephen Smith held at [79]:

“It is likely that, in most cases, a decision as to whether a person under the RL policy is entitled to indefinite leave to remain does not engage Article 8. Any interferences arising from the refusal of indefinite leave to remain would be likely to be minimal, and thus not engage Article 8. But that is not to say that there will not be case-specific scenarios where, due to the particular circumstances of the individual concerned, Article 8 is engaged by the decision to refuse to grant indefinite leave to remain, and to maintain the application of the RL policy.”

I note that the Claimant does not advance any specific circumstances in relation to his health, family connections, or any other factors that would increase the likely engagement of Article 8.

Mr Southey KC submits that MBT is not on point because the Upper Tribunal was concerned with whether there was a breach of Article 8, rather than with ambit for the purposes of Article 14. However, a finding that Article 8 was not normally engaged by a decision to refuse ILR to a person who could remain under the Restricted Leave policy, save for specific personal circumstances, plainly has relevance to the question of whether the matter fell within the ambit of Article 8.

Whether a matter falls within the ambit of an ECHR Article for the purposes of Article 14 is a broader test than whether the Article is engaged. There is a real difference for an individual between having discretionary leave and ILR in terms of certainty for the future and the ability to establish and maintain family and private life ties. However, there is nothing particular on the facts of the Claimant’s case which brings it closer to the subject matter of Article 8. In practice, the Claimant has lived in the UK for very many years with DL and, apart from the degree of long-term uncertainty, it is difficult to point to any specific impact of not having ILR. In those circumstances, to the degree his case does fall within the ambit of Article 8, it is on the edge of the Article, as described by Lord Bingham in M.

The next issue under Article 14 is whether the Claimant has a status that falls within the Article. Mr Tabori accepts that immigration status is capable of being a relevant status, although he points out that it is not one of the specifically protected groups under the Article. It is therefore accepted that the status test is met.

The third issue is whether the Claimant’s asserted comparator, that is someone who falls under Appendix FM, is in a truly analogous situation to the Claimant being considered under the DL Policy. There is a significant overlap here with the issues that arise under the nature of the comparator and under justification (the fourth stage); although analytically they are separate issues.

The question for the issue of the comparator is whether they are in a relevantly similar situation for the purposes of the matter in issue, see Clift v United Kingdom 7507/07 at [66]. Mr Southey KC submits that both groups are immigrants to the UK who have been granted leave to stay in the UK to safeguard their private life pursuant to their rights under Article 8. They both have the same interest in obtaining the security and stability that results from being granted ILR. Therefore, for the purposes of Article 14 their positions are wholly analogous.

He relies upon the decision in R (A) v SSHD [2009] 1 FLR 531, where it was held at [40] that a decision as to whether to grant a child ILR was within the ambit of Article 8 for the purposes of Article 14 (even though it appeared that Article 8 was not necessarily engaged).

Mr Tabori submits that the two groups are not in an analogous situation and, in any event, to the degree that there is any analogy the differential treatment is justified. He starts by relying on R (RJM) v SSHD [2009] 1 AC 311, where Lord Walker at [5] said that a lower level of justification was required where the claimant cohort was on the periphery of the concentric circles of an Article 14 status. I have accepted above that the Claimant is on the periphery of such a concentric circle in respect of the ambit of Article 8.

He submits that there is a difference in substance between people who are being considered within the Immigration Rules, and those such as the Claimant who are not. The Claimant has proceeded with applications under the DL Policy, which is a separate and distinct route to settlement.

He submits that the two groups are clearly distinct and cannot have the same characteristics, because DL “must not be granted where an individual qualifies for leave under the Immigration Rules or for Leave outside the Rules (LOTR) for Article 8 reasons” (DL Policy v11). There are specific requirements for applicants under the Immigration Rules, such as requirements in respect of suitability, eligibility (including in respect of family relationships), finances and English language, which do not apply to DL Policy applicants. A person with DL under the DL Policy would not meet those requirements, otherwise they should have applied under the Rules.

Mr Tabori therefore submits that the two cohorts are relevantly different, and the SSHD is justified in applying different tests to them.

I accept Mr Tabori’s submission on whether the comparator is in an analogous situation and on justification. For historic reasons there have been two routes to settlement in the UK, one under the DL Policy and one within the Immigration Rules. These have been treated as being separate and have had different requirements throughout their history. The DL Policy v11 makes clear that the policy is expressly and solely intended for individuals who do not meet the requirements of the Immigration Rules. So, the two cohorts are intended to be separate and treated separately. Importantly, the Immigration Rules have different requirements from those applicable under DL Policy, as Mr Tabori has referred to above. This strongly reinforces the point that people who choose, for whatever reason, to go down one route are not in an analogous position to those who go down a different route.

Although there may be many overlapping elements, for the Claimant now to achieve settlement under the Immigration Rules he would have to start the process again. In substance, the effect of Mr Southey KC’s submissions is that although the Claimant has proceeded under the DL Policy, he can rely on what would have been his position under the Rules.

The framing of Immigration policy and how people achieve settlement is a matter for the SSHD. That the Government has created these two separate routes, with different requirements, is a matter of policy for it and not the Courts. The two routes are separate and distinct and for policy reasons are intended to be such. In this case the Claimant’s route to settlement was under the DL Policy, and a person who was pursuing settlement under Appendix FM was, in my view, in a relevantly different situation.

Another way of reaching the same conclusion is to say that the SSHD is entitled to have different routes to settlement with different requirements, and that she is therefore entitled to have different criminality thresholds in respect of them. That is the justification for the different criminality thresholds which are contained in the two routes.

Ground Four is that the SSHD took into account irrelevant considerations. Mr Southey KC focused on the requirement under the DL Policy to take into account “exceptional compelling or compassionate” circumstances when deciding whether to grant ILR. He submitted that this included the length of residence of the Claimant. He referred to R (MS India) v SSHD[2018] 1 WLR 389 at [120]:

“120.

The first is length of residence in the UK. In Kardi, as we have seen, Richards LJ, while endorsing the "road blocks" element in the policy, acknowledged that there might come a point when a migrant has been in the UK so long that the only course reasonably open to the Secretary of State would be to grant ILR (see para. 45 above). 5 It is true that at the time that he was considering the version of the policy then in force did not directly address the grant of ILR or, therefore, say that it should be exceptional; but I nevertheless regard what he said as applicable to the policy in the form with which we are concerned. In other words, in principle a particular case may become exceptional because of the length of time that the migrant has been here. I emphasise the word "may": length of residence is only one of the relevant factors and, as I say below, there will be cases where it would be legitimate to refuse ILR however long the migrant has been here because of the seriousness of the crimes in question. But in an appropriate case length of residence may suffice to bring a case into the exceptional category. It is not for the Court to suggest, still less prescribe, how long that period should be: even if that were constitutionally appropriate, which it is not, it must depend on the circumstances. But it is safe at least to point out that even a migrant with "ordinary" discretionary leave to remain will not normally be eligible for ILR until they have been here for ten years (see para. 12 (2) above), and the considerations underlying the Secretary of State's policy would normally require that a migrant in the excluded category should have to wait much longer than that. It is also material that, other things being equal, a person who is present in the UK without leave only becomes eligible for ILR, even if he or she satisfies the suitability requirements, after twenty years – see paragraph 276ADE (iii) of the Immigration Rules: I do not say that the two situations are analogous, but simply that that rule provides some context.”

Mr Southey KC submits that the SSHD failed to take length of residence into consideration as an exceptional circumstance and as such has erred in law.

Mr Tabori submits that whether a matter is a relevant consideration or not is a matter for the decision maker, see R (Friends of the Earth) v Secretary of State for Transport [2021] PTSR 190 at [120] – [121] per Lord Hodge and Lord Sales. However, in any event, the Defendant did take into account length of residence, saying “Your length of residence in the UK has been considered, however, length of residence alone is not a sufficiently exceptional or compelling reason to grant ILR outside the rules”.

In my view this Ground is straightforward. It is apparent fromMS (India) that length of residence is in principle capable of being an exceptional circumstance, and therefore something the SSHD needed to take into account. However, the SSHD did take it into account in her decision to refuse ILR. Therefore, an argument that there was a failure to take into account a relevant consideration is bound to fail.

The only possible argument on this point would be that the SSHD had acted Wednesbury irrationally in the weight she attached to the matter. But that is not the way the Ground was pleaded or argued, and it would in any event be extremely difficult to succeed on. Length of residence is material, but it is not a determinative factor. The SSHD was entitled to have regard to it but find that it was not sufficiently exceptional to justify the grant of ILR on the facts of the case.

For these reasons I find for the Claimant on Ground One but dismiss Grounds Three and Four.