The petitioner sought judicial review of a decision of the Upper Tribunal (UT) to refuse permission to appeal a First-tier Tribunal (FTT) ruling, but a judge in the Court of Session dismissed the petition.

‘Discretionary leave to remain’

Lord Boyd of Duncansby heard that the petitioner Sajad Karimi was first granted discretionary leave to remain (DLR) in April 2019 for a period of three years, which expired on 19 April 2015.

On 9 October 2015 he made an application the extend his DLR, but this was refused by the Secretary of State for the Home Department, following which he made a further application on 16 December 2015, which was also rejected.

The petitioner appealed to the FTT after a further application for DLR on 23 March 2016 was again refused by the Home Office, but the tribunal rejected his appeal, as did the UT.

The tribunal was told that the petitioner had three convictions all arising on the same day, 12 February 2013; one involving racial abuse and another for interfering with the police in the execution of their duties outside a nightclub, and a third for impeding emergency workers outside a hospital.

The petitioner was sentenced to a community payback order with a requirement of 135 hours of work related service to be completed within four months.

The FTT judge observed that it was clearly the case that he was being seriously considered for a period of imprisonment, but in any event under the immigration rules there are provisions dealing with the undesirability of permitting a person concerned to remain in the UK in the light of his of her conduct, including convictions, and the Home Office policy on discretionary leave also states that criminal and extremists “should not normally benefit from leave on a discretionary basis” because it is a UK Government “priority to remove them from the UK”.

However, on behalf of the petitioner it was submitted that section 3.6 of the policy on discretionary leave applied, which states that it is unlikely that a person will be refused under the character, conduct or association grounds for a single conviction that results in a non-custodial sentence outside the relevant timeframe of 24 months, although it was not suggested that the FTT judge should have considered the three convictions as one conviction.

It was argued that the FTT judge was “wrong” to consider that a conviction which resulted in a non-custodial sentence was a serious one justifying refusal of the application.

The FTT judge appeared to have gone beyond the sentence itself to look at the nature of the offences and “speculate” on whether or not the sentence imposed was an alternative to prison.

However, the court rejected the submission that the only consideration for the tribunal was whether a sentence of imprisonment had been imposed.

‘No error of law’

In a written opinion, Lord Boyd of Duncansby said: “It is clear from the rules that non-custodial disposals are relevant and can result in mandatory refusal. I also reject the submission that the judge was not entitled to look at the nature of the offences. It is therefore an exercise which looks at what the applicant did and that cam only mean looking at the nature of the offences where these are prayed in aid.”

Further, under Home Office policy, “those granted discretionary leave before 9 July 2012 may apply to extend that leave when their period of DL expires. All such applications …must be made on the appropriate application form no more than 28 days before their existing leave expires”.

The FTT interpreted that to mean that the application must be made no more than 28 days before the expiry of the existing leave, and as the application had been made after the expiry of DLR the FTT held that the application should be dealt with under the new policy as opposed to a the more favourable old policy - a decision endorsed by the UT judge in refusing permission to appeal.

The petitioner argued that both the FTT and UT had “erred” in their interpretation of the policy.

It was submitted that the policy, read properly, meant that the application could not be made until after DLR had expired - it could be made in the 28 days prior to the expiry date, but there was no end date.

However, the court also rejected that argument.

Lord Boyd said: “The question for me is whether it was arguable that the FTT had misinterpreted the policy. In my opinion it did not; the policy is clear beyond peradventure.

“The application to be made is one to extend the existing DLR beyond the date of its expiry. That is what is meant by the first sentence.

“Any ambiguity is swept away with the words ‘All such application’ ie an application to extend DLR. They are to be made no more that 28 days before the expiry of existing leave.

“Such an interpretation is also consistent with wider considerations of immigration law. Once DLR has expired the person holding DLR becomes an overstayer and liable to prosecution.”

The judge concluded: “This is a judicial review of the UT’s decision not to grant leave to appeal. It is I suppose possible that a different FTT judge would come to a different decision on the facts but it cannot be said that he was not entitled to reach the decision he did. There was no error of law in the UT’s decision to refuse leave to appeal.”