AZ (AP) v Secretary of State for the Home Department, [2020] CSOH 15 (Outer House, Court of Session, 7 February 2020)

The Outer House has dismissed a petition in AZ (AP) v SSHD seeking both: (i) reduction of a decision by the Home Office to refuse an application for indefinite leave to remain (ILR), and (ii) reduction of part of the Home Office policy in respect to discretionary leave to remain.  

The petitioner, a citizen of Afghanistan, sought reduction of the decision to refuse ILR on the basis that the Home Office had failed to consider the peculiarities of the Scottish system in respect to higher education tuition fees. While it was accepted by the petitioner that Home Office policy on Discretionary Leave provided that ILR would not normally be granted on the basis that it would qualify an applicant for a student loan, it was argued that account had to taken of the fact that under the Scottish system a grant of ILR ‘would mean that the petitioner would have her tuition fees paid for her’.  

However, no reference was made by the petitioner to this peculiarity in her initial application for ILR. In light of this, it was held that the Home Office was not under a duty to consider this. The Home Office policy on Discretionary Leave stated only that, ‘…it would not normally be appropriate to grant a child ILR because they would like to qualify for a student loan”;? as such, it was open to the petitioner to raise the peculiarities of the Scottish tuition fee system in her initial application. Furthermore, as the policy did not prevent consideration of the distinctive nature of the Scottish system, the Court held that no valid reason existed for reduction of the part of Discretionary Leave policy sought.? 

Read the judgment here.  

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