Nino Henriques Nunes v Secretary of State for the Home Department: Transitional arrangements and discretionary leave policy

The High Court has allowed a judicial review challenge concerning the application of criminality thresholds to an indefinite leave to remain (ILR) application made under the discretionary leave (DL) policy. The case clarifies how transitional arrangements should operate for applicants who were first granted DL before significant policy changes in July 2012.

The claimant, an Angolan national who arrived in the UK in 1993, had accumulated over 13 years of continuous DL. He had two historic criminal convictions: one in 2000 resulting in 15 months' imprisonment, and another in 2007 resulting in 12 months' imprisonment. His application for ILR, made in September 2022, was refused by the Secretary of State on the basis that paragraph 9.4.1(a) of the Immigration Rules mandated refusal where an applicant had received a custodial sentence of 12 months or more.

The central issue concerned the proper interpretation of the DL policy's transitional arrangements. Version 11 of the policy stated that those granted DL before 9 July 2012 would "normally continue to be dealt with under that policy through to settlement" unless they fell within the restricted leave policy or there had been significant changes in circumstances.

Mrs Justice Lieven found that the Secretary of State had misapplied the policy. The transitional arrangements were designed to preserve the rights of individuals who had relied on the pre-July 2012 policy framework. The new criminality thresholds, introduced on 1 December 2020, should only apply to convictions occurring after 9 July 2012, not retrospectively to earlier convictions.

The judgement drew support from the Upper Tribunal's decision in R (Ellis) v SSHD, where Chamberlain J had similarly interpreted the transitional arrangements. In that case, the Secretary of State had expressly conceded that the pre-2012 policy applied to the applicant, despite his having criminality. The court noted it was unlikely that both counsel for the Secretary of State and Chamberlain J would have misinterpreted the policy if the current interpretation were correct.

Three factors supported the claimant's interpretation. First, the wording of the transitional arrangements drew a clear distinction between those granted leave before and after July 2012. Second, the interpretation accorded with normal principles against retrospective policy application unless clearly stated. Third, the Secretary of State retained discretion to depart from the "normal" position in appropriate cases, but was required to explain such departures clearly.

The court also addressed, obiter, whether applying the criminality threshold would constitute unlawful discrimination under Article 14 ECHR. The claimant argued that applicants under Appendix FM were treated more favourably, as that route included a 15-year rehabilitation period for sentences between 12 months and 4 years. Mrs Justice Lieven found that the two routes to settlement—DL policy and Appendix FM—were sufficiently distinct that applicants were not in analogous situations. Different requirements and eligibility criteria applied to each route, making differential treatment justified as a matter of policy.

The court dismissed a further ground alleging failure to consider length of residence as an exceptional circumstance. The decision letter had explicitly addressed this factor, though finding it insufficient to warrant departure from the standard approach.

The case clarifies that the Secretary of State must apply transitional arrangements according to their natural meaning, protecting legitimate expectations of applicants who commenced their journey to settlement under earlier policy frameworks.

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