Transitional Discretionary Leave: “Through to settlement” preserves the pre‑2012 route (including the 10‑year exclusion pathway), and unlawful refusals must be remitted—not replaced by a mandatory grant of ILR

1. Introduction

Secretary of State for the Home Department v Jimoh (R, on the application of) [2026] EWCA Civ 643 is a Court of Appeal decision on the construction of Home Office leave policies—particularly the transitional arrangements in the Discretionary Leave (“DL”) policy—and on the proper remedy in judicial review where a refusal of indefinite leave to remain (“ILR”) is unlawful.

The respondent (“the claimant”, Mr Jimoh) is a Nigerian national previously granted ILR, later made subject to a deportation order following a serious drugs conviction, and then granted DL on Article 8 grounds. After many years of DL, he applied for ILR again. The Secretary of State refused ILR (under the Immigration Rules and outside the Rules) and treated a historic conviction as a continuing basis to depart from the “normal” policy outcome under the transitional DL regime.

The Administrative Court (Obi J) quashed the refusal and ordered the Secretary of State to grant ILR. The Secretary of State appealed on two grounds:

  • Construction/interpretation: whether an historic conviction already known when DL was granted could still justify departing from the “normal” grant of ILR under the transitional DL policy and/or be a “compelling reason” to refuse settlement under the medical policy.
  • Remedy: whether the High Court erred by making what was in substance a mandatory order requiring a grant of ILR, rather than remitting the decision for lawful reconsideration.

2. Summary of the judgment

The Court of Appeal (Lady Justice Elisabeth Laing, with Lord Justice Lewis and Lord Justice Baker agreeing):

  • Dismissed the appeal on Ground 1: the Secretary of State had misconstrued and misapplied the transitional arrangements. Properly understood, they preserved the claimant’s route under the pre‑2012 DL policy (including the 10‑year pathway for “excluded” cases), and the Secretary of State’s approach in “decision 4” was wrong in law.
  • Allowed the appeal on Ground 2: even where the policy analysis strongly points one way, the court should not substitute itself for the Secretary of State by ordering the grant of ILR. The proper remedy was to quash and remit for reconsideration in light of the Court of Appeal’s judgment.

3. Analysis

3.1 Precedents cited

(a) R (Ellis) v Secretary of State for the Home Department [2020] UKUT 82 (IAC)

Role in this appeal: Ellis was the principal authority shaping the interpretative approach to the DL transitional provisions and, in particular, the meaning of “normally” and lawful departure from the “norm”.

In Ellis, Chamberlain J held that policy interpretation is an objective question of law (not left to the Secretary of State subject only to Wednesbury). He also explained that the term “normally” preserves administrative discretion, permitting a departure where there is a reason to treat a case as “abnormal”—and identified that a new criminal conviction since the last consideration could, in principle, justify such a departure.

The Court of Appeal accepted Ellis as persuasive and consistent with orthodox public law principles. However, it refined the analysis by anchoring the transitional protection more firmly in the substantive content of the earlier policy (Policy 1), rather than treating “normally” as a broad licence to revisit the same historic conviction repeatedly.

(b) R (TT) v Secretary of State for the Home Department (JR-2025-LON-000110)

This unreported Upper Tribunal decision was noted below as a comparator, but it did not drive the Court of Appeal’s reasoning. Its main significance was to illustrate that issues about the transitional DL regime were arising across multiple cases.

(c) R (LND1) v Secretary of State for the Home Department [2024] EWCA Civ 278; [2024] 1 WLR 4433

Role in this appeal: LND1 was central to the remedy issue. The Court of Appeal relied on it for the principle that, in judicial review of executive immigration decisions, the standard remedy is to quash and remit to the original decision-maker—rather than the court itself directing the outcome—because the function of making the decision (and exercising any residual discretion) remains constitutionally for the Secretary of State.

(d) R (Imam) v Croydon London Borough Council [2003] UKSC 45; [2025] AC 335

Imam was deployed by the Secretary of State to distinguish cases where a mandatory order is appropriate—particularly where there is an unqualified statutory duty—from immigration cases where the Secretary of State exercises a statutory power structured by policy but retaining residual discretion.

3.2 Legal reasoning

(a) The Court’s general approach to policy interpretation

The Court emphasised two interpretative realities:

  • Policies are not legislation: they may not be lawyer-drafted, can contain anomalies, and must often be read as a whole to derive coherent overall intention.
  • Policies guide discretionary power: affected persons have a legitimate expectation the policy will generally be followed, but the Secretary of State must not unlawfully fetter discretion and may depart with a “good reason” properly explained.

(b) Policy 1 (pre‑2012 DL policy): the “excluded category” matters

A pivotal move in the Court of Appeal’s reasoning was to reconstruct what the claimant’s position would have been under Policy 1 itself.

The Court held that the claimant fell within the “excluded category” because Policy 1 imported the Humanitarian Protection exclusion criteria (Policy 2), and his 30‑month custodial sentence met the definition of “serious crime”. Under Policy 1, that did not mean “no settlement”; rather, it meant the qualifying period was normally 10 years, and that settlement could be denied only if Ministers personally decided it was “not conducive to the public good”, with reasons given. There was no evidence of any such ministerial decision.

Accordingly, the claimant’s expectation under Policy 1 was: ILR after 10 years of DL (subject to the special ministerial denial mechanism), not ILR after 6 years.

(c) Policy 3 (post‑2012 DL policy): harsher criminality rules, but transitional protection

The Court identified major post‑2012 changes outside the transitional regime: a default 10‑year route to settlement; a 12‑month custodial sentence as a mandatory refusal threshold in many contexts; and a policy architecture that repeatedly cross-refers to Part 9 of the Immigration Rules.

Crucially, however, the transitional arrangements were designed to shield pre‑2012 grantees from later disadvantageous change.

(d) Construction of Policy 3’s transitional arrangements: a “sequence” with a protective purpose

Section 4 of Policy 3 contains four unnumbered paragraphs (numbered by the Court). The Court held they operate as a sequence: a decision-maker should work through them and apply the paragraph that fits the case. This “fit-based” reading was adopted to avoid chaotic or internally contradictory outcomes.

The key holding is the Court’s interpretation of paragraph 1:

  • Paragraph 1’s statement that those granted leave under Policy 1 “will normally continue to be dealt with under [Policy 1] through to settlement” is inclusive.
  • The clause “normally they will be eligible to apply for settlement after accruing 6 years’ continuous DL” is illustrative, not restrictive, because it does not accurately capture Policy 1’s position for excluded-category cases (which require 10 years absent a ministerial denial).

Therefore, if the person would have been entitled to ILR under Policy 1 (including via the 10‑year excluded-category route), transitional paragraph 1 preserves that entitlement.

(e) Paragraph 3: “criminality” in context means new adverse developments

The Court treated paragraph 3 (“significant changes” / “falls for refusal on the basis of criminality”) as directed at changes since the last grant—i.e. new criminality—rather than allowing reliance on a conviction “known about all along”.

Two reasons were given:

  • Within paragraph 3 itself, “criminality” is introduced in the same breath as “significant changes”, pointing to post-last-grant developments.
  • Elsewhere in Policy 3 (section 2), there is an explicit carve-out allowing further DL where the earlier conviction was known at the time of prior grants. It would be irrational for the transitional provisions to be harsher than the main body of Policy 3 given their protective purpose.

(f) Paragraph 4: confined to its asylum/HP criminality cohort

Paragraph 4’s first sentence is expressly tied to those granted DL for six months due to refusal/withdrawal of asylum or humanitarian protection on criminality grounds. The Court held that context sets the scene for its second sentence (“consider Part 9”), so paragraph 4 did not apply to the claimant.

In any event, the Court indicated that “consider” Part 9 could not rationally mean “automatically apply and refuse”, especially given the Secretary of State’s own acknowledgment (recorded below) that Part 9 was “not determinative … without consideration of the individual circumstances”.

(g) Application to “decision 4”: legal error identified

The Secretary of State’s “decision 4” quoted only parts of the transitional provisions, treated Ellis as authorising broad departure from the norm based on criminality, and relied on the historic 2006 conviction (already known throughout the DL history) as a continuing “good reason” to refuse ILR under the transitional pathway.

The Court held the Secretary of State did not correctly understand the relationship between Policy 1 and Policy 3. Because the claimant’s transitional position was anchored in Policy 1 (with its 10‑year excluded-category route absent a ministerial denial), the approach in decision 4 was wrong in law.

(h) Policy 4 (medical claims): not determinative, but supportive

Policy 4 states that after 10 years (or 6 years under transitional provisions) of DL, ILR would “generally” be granted unless there is a compelling reason not to, and it expressly refers back to the DL policy. The Court considered it unnecessary to decide whether Policy 4 goes further than Policy 3, but held that its application supported the conclusion already reached under the DL transitional analysis.

3.3 Impact

(a) Transitional DL applicants: focus on what Policy 1 actually promised

The most practically significant aspect of the judgment is that it requires decision-makers (and reviewing courts) to determine the applicant’s substantive pathway under Policy 1, including the often-overlooked “excluded category” structure (10 years and potential ministerial denial). Transitional paragraph 1 cannot be read as collapsing Policy 1 into a simplistic “6-year norm”.

(b) Limiting “criminality” as a departure basis under transitional paragraph 3

The judgment strongly indicates that, within the transitional scheme, “criminality” as a trigger for refusal is naturally read as new criminality since the last grant, not historic convictions already accommodated by repeated grants of DL. This does not eliminate discretion, but it constrains how “good reason” is identified within the transitional framework’s protective purpose.

(c) Remedies: courts should be slow to order the grant of ILR

On remedy, the judgment reinforces a constitutional boundary: even where the policy analysis appears to make the outcome “inevitable”, an immigration decision remains an exercise of executive power (not a duty), structured by policy yet retaining residual discretion. The court’s role is to correct the legal error and remit, not to administer immigration control by directing the grant of leave.

4. Complex concepts simplified

  • DL (Discretionary Leave): time-limited permission to stay granted outside standard routes, often where removal would breach human rights.
  • ILR (Indefinite Leave to Remain): settlement—permission to stay without time limit, often described as a “privilege” in policy terms.
  • “Outside the Rules” (LOTR): the Secretary of State’s statutory power under section 3(1) of the Immigration Act 1971 to grant leave even where the Immigration Rules are not met.
  • Transitional arrangements: policy provisions designed to protect people already in a system from later, tougher changes.
  • Excluded category (Policy 1): those with serious criminality were not necessarily barred from settlement, but faced a longer 10‑year period and potential ministerial denial.
  • Quash and remit: the court sets aside an unlawful decision and sends it back to the original decision-maker for a lawful re-decision.

5. Conclusion

[2026] EWCA Civ 643 establishes a structured and protective reading of the DL transitional arrangements: paragraph 1 preserves the applicant’s route “through to settlement” as it truly operated under Policy 1, including the 10‑year excluded-category pathway absent a personal ministerial denial. The Secretary of State’s attempt to treat an historic conviction—long known and previously accommodated by grants of DL—as a continuing “good reason” to refuse settlement under the transitional scheme was legally erroneous.

At the same time, the Court of Appeal drew a firm remedial line: unlawful immigration decisions should ordinarily be quashed and remitted. Even where a policy analysis appears to dictate the result, the court should not generally issue a mandatory order requiring the grant of ILR, because the statutory power and residual discretion remain for the Secretary of State to exercise.