Factual and Procedural Background
The Appellant appealed against the Upper Tribunal’s decision quashing the refusal to grant the Respondent indefinite leave to remain (“ILR”). The case arose from a 2014 refusal of the Respondent’s further leave application based on an alleged fraudulent English-language test. That allegation was later rejected by the First-tier Tribunal. [1][2][3][4][5]
The Respondent had entered the United Kingdom as a student, was detained following the 2014 refusal, later failed to comply with immigration-bail reporting requirements, and made subsequent asylum and human-rights applications. In 2023, he was granted limited leave to remain and then applied for ILR, which was refused on the basis that he lacked ten years’ continuous lawful residence and had absconded and delayed regularising his status. [2][6][7][5][8][9][10][11]
The Upper Tribunal quashed the ILR refusal. The Appellant obtained permission to appeal to the Court of Appeal. At the appeal hearing, the Respondent’s later application for leave remained pending and his leave was extended under section 3C of the Immigration Act 1971. [12][13][14][15]
Legal Issues Presented
- Whether the Upper Tribunal correctly applied the guidance in Ahsan and Khan to a person wrongly accused of TOEIC deception whose later application for ILR was made years after the original judicial-review proceedings. [16][17][18]
- Whether the Secretary of State was entitled to consider the Respondent’s absconding, overstaying, delay, and immigration history when deciding whether to grant ILR or limited leave. [19][20][21][22][23][24]
- Whether the Upper Tribunal impermissibly interfered with the discretion vested in the Secretary of State. [25][19]
Arguments of the Parties
Appellant’s Arguments
- Ahsan and Khan did not determine how later, factually distinct applications had to be resolved, and expressly preserved the Secretary of State’s discretion. [17][26][27]
- The relevant guidance was instead the approach to extensions of time and finality in QR (Pakistan), particularly given the dismissal of the Respondent’s earlier judicial-review claim. [28]
- The Secretary of State was entitled to distinguish between disregarding an erroneous gap in leave and treating that period as positive “lawful continuous residence”. [29]
- The grant of thirty months’ limited leave was rational and restored the Respondent, who had not previously been on a settlement route, to substantially the position he occupied in 2014. [20][21]
Respondent’s Arguments
- Following a successful human-rights appeal, the Respondent should be treated as if the erroneous TOEIC-based decision had not ended his leave; if that produced more than ten years’ lawful residence, ILR should follow subject to the remaining requirements. [30][31]
- The principles in Ahsan and Khan applied even though the Respondent no longer had a pending judicial-review claim when he made his later application. [32]
- His student status in 2014 did not distinguish him from others because it was speculative both that he would and that he would not ultimately have obtained settlement. [33]
- It was unjust to rely on his absconding and delay because, under the law then applicable, he lacked an effective in-country remedy against the erroneous decision. [34][35]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Ahsan and others v SSHD [2017] EWCA Civ 2009 |
Guidance concerning effective remedies and the treatment of persons wrongly accused of TOEIC deception. |
The Court held that the guidance was qualified and fact-specific, not an absolute rule governing all later cases. [16][18][36][26] |
| Khan and others v SSHD [2018] EWCA Civ 1684 |
Consequences of the TOEIC litigation and the Secretary of State’s qualified undertakings in particular cases. |
The Court relied on the express reservation that future cases had to be assessed individually. [37][38][39][27] |
| R (Afzal) & another v SSHD [2023] UKSC 46 |
Effect of certain periods of overstaying bookended by periods of lawful leave when calculating ten years’ residence. |
The principle formed part of the explanation of the long-residence rules. [40] |
| R (Kiarie and Byndloss) v SSHD [2017] UKSC 42 |
An out-of-country appeal must provide an effective procedure where Convention rights are engaged. |
It informed the reasoning in Ahsan, but did not determine the present appeal directly. [41][42][43] |
| R (QR) (Pakistan) v SSHD [2018] EWCA Civ 1413 |
Approach to extending time for a fresh judicial-review application following a change in the law. |
The Appellant relied on it, but the Court’s decision principally turned on the qualified nature of Ahsan and the Secretary of State’s discretion. [44][45][28] |
| Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 |
Part of the three-stage approach to relief from sanctions. |
Cited through QR (Pakistan). [45][46] |
| Denton v TH White Limited [2014] EWCA Civ 906 |
Part of the three-stage approach to relief from sanctions. |
Cited through QR (Pakistan) and relevant to the prospects of reviving the earlier judicial-review challenge. [45][46][28][32] |
| R (Malhi) v SSHD (15 May 2026, unreported) |
Later events following an erroneous curtailment may remain relevant to the Secretary of State’s later discretionary decision. |
The Court endorsed its conclusion that Ahsan did not require all intervening events to be disregarded. [47][48][49] |
| R (on the application of Majera) v Secretary of State for the Home Department [2021] UKSC 46 |
The rule of law requires compliance with an order while it remains operative, even if it is later shown to be wrong. |
The Court applied the analogy to compliance with immigration-bail conditions and held that absconding could rationally be considered. [22][23] |
| AA (Afghanistan) v Secretary of State for the Home Department & Anor [2007] EWCA Civ 12 |
Historical loss caused by governmental error must be considered when exercising discretion over further leave. |
The Court held that the Secretary of State had taken the Respondent’s past injustice into account. [50][51][52] |
| SL (Vietnam) v Secretary of State for the Home Department [2010] EWCA Civ 225 |
Past mishaps, their effects, and the need to correct injustice are relevant discretionary considerations. |
The principle supported the conclusion that the Secretary of State had properly considered the Respondent’s historical injustice. [53][54][55][56] |
| Patel (historic injustice; NIAA Part 5A) [2020] UKUT 351 (IAC) |
Framework concerning historic and historical injustice. |
The Respondent relied on it in argument; the Court instead applied the approach stated in AA (Afghanistan) and SL (Vietnam). [57][58][59][50] |
Court's Reasoning and Analysis
The Court held that Ahsan contained important qualifications: it was not a hard-and-fast rule, reconstruction of the position absent the error might be difficult, and future cases had to be assessed with regard to “other things being equal”. [18][36]
The Court considered that Khan reinforced this conclusion because the Secretary of State’s undertakings were expressly limited to the cases before the Court and required future cases to be considered individually. [27]
Accordingly, the Upper Tribunal was wrong to conclude that the Respondent unquestionably belonged to a class entitled to the Ahsan remedy. His case had to be determined on the totality of the circumstances, including the wrongful TOEIC-based curtailment. [60][61]
The Court held that the Secretary of State was entitled to take account of the Respondent’s failure to pursue the earlier judicial-review proceedings, his absconding from immigration bail, and his significant delay in regularising his position. Those matters were capable of rationally distinguishing his case from the cases considered in Ahsan and Khan. [22][23][24]
The historical injustice remained relevant, but it did not require the Secretary of State to grant ILR. The Secretary of State had considered that injustice, the Respondent’s lawful student residence, his later leave, and his immigration history. The grant of thirty months’ limited leave was the maximum period typically recommended by the applicable guidance and was not irrational. [50][52][62]
Holding and Implications
APPEAL ALLOWED. The judicial-review claim was dismissed and the order quashing the ILR refusal was set aside. [63]
The Respondent’s later application for leave and his current section 3C leave were unaffected. The determination of that application remained a matter for the Secretary of State. [64]
The decision applied existing principles and did not establish a new precedent. It confirmed that TOEIC-related historical injustice must be considered, but that later conduct and delay may also be weighed in a fact-specific discretionary assessment. [27][61][23][62]