There must surely only be a handful of people left on pre-2012 discretionary leave, but some may not yet have settled despite the six-year qualifying period. The two most common reasons are overstaying, which restarts the clock, and criminality.
We previously covered here the case of R (Ellis) v Secretary of State for the Home Department [2020] UKUT 82, which determined that the Home Office can refuse a pre-2012 discretionary leave holder from successfully settling in the UK for criminality, as this may constitute a “good reason” for deviating from the usual policy of granting discretionary leave after six years. We then covered the case of R (on the application of Nunes) v Secretary of State for the Home Department [2026] EWHC 196 (Admin), which held that the Home Office can usually only rely on new, not historic, criminality to deviate from the pre-2012 policy, which you can read about here.
Now, we look at the consequence of a refusal of indefinite leave on the basis of criminality: if the applicant cannot settle after six years as a result, when can they settle? In most cases, ten years, held the Court of Appeal in R (on the application of Jimoh) v Secretary of State for the Home Department [2026] EWCA Civ 643.
Background
Mr Jimoh is a Nigerian national who entered the UK either in 1989 or 1990 as a small child. He was diagnosed with Hepatitis B in 1998 and had a kidney removed in 2004 (this will be somewhat relevant later, as the case also touches on medical cases and indefinite leave). He was granted indefinite leave to remain in 2001.
Mr Jimoh was then convicted of two serious offences: one in 2004, which resulted in a fine, and one in 2006, which resulted in a custodial sentence of 30 months. As a result, the Home Secretary made a deportation order against him in 2008, invalidating his indefinite leave, which he eventually succeeded in overturning. Following this, he was granted discretionary leave on 14 October 2010 until 14 October 2013.
He applied for indefinite leave in February 2013 and was refused for unspecified reasons (but likely because of the criminality, as well as the fact that he had not yet completed six years) but was granted further discretionary leave at the same time, as well as in 2017 and 2021.
Mr Jimoh then entered into a relationship with a Nigerian national who was in the UK without leave. They had a baby together around 2021 who was not born British because neither of her parents were settled.
On 3 October 2023, Mr Jimoh applied for indefinite leave on the basis of ten years’ long residence, presumably under paragraph 276 (which is now Appendix Long Residence). The Home Office refused the application, again presumably on the grounds of criminality, but granted him further discretionary leave. He challenged the refusal to grant him indefinite leave by way of judicial review.
High Court
We have previously covered the High Court decision here, in which the court held that Mr Jimoh is entitled to a grant of indefinite leave as the sole reason for the refusal was a historic conviction. It made the unusual decision to make an order to this effect instead of remitting the decision to the Home Secretary.
The Home Secretary appealed against the decision on both grounds.
Court of Appeal
The court held that under the pre-2012 policy, someone who falls to be excluded from asylum or humanitarian protection because they have committed a serious crime has to wait ten years, not six, to qualify for indefinite leave (para 75):
The general rule, or norm, in Policy 1 was that a person would not ‘become eligible for settlement until they had had six years’ DL. That was subject to a proviso, that if the applicant was in an exclusion category, ‘This period will be longer, at least ten years, and potentially never, for those in the excluded category (see sections below on ‘Exclusion from HP/DL’)’.
Of course, there is no reference to the exclusion policy in the current version of the discretionary leave guidance so I think we can all be forgiven for assuming we didn’t need to pull up the 2009 version to understand how the policy works today. However, the transitional provisions of the current discretionary leave guidance do say, quite simply, that a pre-2012 route candidate should be treated under the pre-2012 policy, which I suppose means warts and all. This is despite the fact that serious offences committed in the UK are no longer within the purview of paragraph 399D.
However, the upshot is that unless a minister personally directs for the application to be excluded from a grant of indefinite leave on non-conducive grounds, even if they are excluded after six years under the exclusion criteria (e.g. they committed a serious crime), they will still be able to settle after ten years (para 87):
For those reasons, I consider that, on its proper interpretation, and in the light of the evidently protective purpose of transitional arrangements, paragraph 1 is an inclusive provision. It signals that if the applicant was on a path to settlement under Policy 1, he would get ILR after the relevant period of DL: six, or ten, years, as the case might be. The relevant period in Mr Jimoh’s case, because he had committed a serious crime, but had not been excluded from settlement by a ministerial decision, was ten years. Had he not received a sentence of 30 months’ imprisonment, that period would have been six years.
The fact that Mr Jimoh fell within the medical leave policy did not get him any further (para 88):
In the circumstances, I prefer to express no view about whether Policy 4 goes further than Policy 3. The clear premise of Policy 4 is that those granted leave on medical grounds will be so ill that any period of leave is intrinsically unlikely to last for years. It is therefore unlikely that if the high threshold has been correctly applied to a case, the issue of ILR will arise.
Finally, perhaps unsurprisingly, the court overturned the order compelling the Home Secretary to grant indefinite leave in order to remit the decision instead (para 98):
This case concerns the exercise of a statutory power, not a duty, and that exercise is subject to the Secretary of State’s published policies. As I have already said, the Secretary of State retains a residual discretion, even when her policy appears to give the answer in the general run of cases. Neither the statutory power, nor the residual discretion is the court’s to exercise. The Judge was right to quash decision 4, but the case must be remitted to the Secretary of State for her to reconsider it in the light of this judgment.
Conclusion
The case expands on Ellis in finding that where someone with pre-2012 discretionary leave falls for refusal on the grounds of criminality, they will still be eligible for indefinite leave after completing ten years, as long as they haven’t been personally excluded by a minister on non-conducive grounds.
Although at first glance it might seem as though it overturns the decision in Nunes, the court in that case held that historic criminality will not normally be a reason to depart from the terms of the pre-2012 policy. The missing piece is that the terms of the pre-2012 included provisions for an applicant with criminality to be refused indefinite leave until they have completed ten years, even where the conviction is historic. The difficulty I have with this is that the current discretionary leave guidance only has this to say with respect to the effect of criminality on the transitional provisions:
Those granted DL for 6 months because of the refusal or withdrawal of asylum or humanitarian protection on grounds of criminality and who do not fall within the restricted leave policy, must normally wait 10 years before being eligible to apply for settlement.
However, Mr Jimoh was not granted six months of discretionary leave; he was granted three years at a time, which is the standard, non-excluded duration of leave. Further, the finding that the entirety of the pre-2012 discretionary leave policy, including the parts not reproduced under the transitional provisions of the current guidance, applies to people in Mr Jimoh’s position is certainly new.
It does feel somewhat unreasonable for an applicant to have to access historic policy documents from over ten years ago that are no longer available on the standard Home Office website in order to understand the policy that applies to their application today. But I suppose they are ultimately aided by the finding that they can only be refused settlement for so long.