A recent Upper Tribunal decision upheld the refusal of indefinite leave to remain (ILR) for a 68 year old Zimbabwean woman, highlighting how strict criminality rules can affect settlement applications even after many years.
Her Story
The applicant arrived in the UK in December 2001, having fled Zimbabwe under traumatic circumstances including sexual violence and the disappearance of her husband. A tribunal previously granted her human rights protection in 2011, recognising her fear was genuine, her past suffering real, and her place in the UK justified. She was then issued discretionary leave to remain, renewed twice. Her daughter later died from Covid in April 2020 and the applicant became the main carer for her British citizen granddaughter. Those caring responsibilities continue to this day.
In July 2023 she applied for settlement based on six years of continuous discretionary leave under the immigration rules as they stood before July 2012. Her application was refused. Instead she was granted three more years of discretionary leave, because of a 2005 conviction involving the use of a false passport in order to get a National Insurance number and work. The conviction had led to a prison sentence.
Why the Home Office and Tribunal Rejected Her ILR Application
Under paragraph 9.4.1 of the Immigration Rules, applications must be refused if the applicant received a custodial sentence of 12 months or more and ten years have not passed since the end of the sentence. This rule applies even when the custodial sentence was many years ago and here the Home Office lawfully applied it.
She contested the refusal, pointing to Home Office guidance suggesting discretion when appropriate. But both the Home Office and Upper Tribunal found that the decision fell within permissible policy application. The tribunal saw no error in the refusal.
What This Means
Even long past convictions can prevent settlement under strict criminality rules. The law draws firm lines regardless of the applicant’s personal circumstances, such as being a devoted carer for a British child. That said, in some situations it may be possible to remain in the UK on discretionary leave and that remains a useful option for those ineligible for ILR.
How We Can Help
Each case must be considered carefully. If you or someone you know faces refusal and is affected by criminality rules, professional advice is vital. Circumstances like care responsibilities, past trauma or strong human rights connections may not remove legal barriers, but they can guide future strategic options.
Contact Soma Barzinji [email protected] for personalised support and guidance.