ON APPEAL FROM THE UPPER TRIBUNAL (Immigration and Asylum Chamber)
Dove J and UTJ Gill
AND THE HIGH COURT, QUEEN'S BENCH DIVISION (Administrative Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
Vice-President of the Court of Appeal (Civil Division)
LORD JUSTICE UNDERHILL
LORD JUSTICE SIMON
| (1) MS
- and –
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
- and –
Ms Amanda Weston (instructed by Birnberg Peirce & Partners) for MBT
Mr Robin Tam QC and Ms Julie Anderson (instructed by the Treasury Solicitor) for the Secretary of State
Hearing date: 14-16 March 2017
Written Submissions: 21, 29, 31 March 2017
Crown Copyright ©
Lord Justice Underhill :
(1) MS is a Sikh of Indian nationality. He was born on 15 October 1972 and so is now aged 44. He came to this country in 1995 and claimed asylum shortly afterwards. His claim was refused on the basis that he was excluded from the protection of the Refugee Convention because he had been involved in terrorist activities. A decision was made to deport him. He appealed. In 2000 the Special Immigration Appeals Commission ("SIAC") accepted that he had indeed been involved in terrorism, but it found that his removal to India would be in breach of article 3 of the European Convention on Human Rights ("the ECHR") because he would be at risk of torture by the Indian authorities. He has remained in the UK ever since with various forms of limited leave. He is married and has a family and a job.
(2) MBT is a national of Tunisia. He was born on 20 December 1966 and so is now aged 50. He came to this country and claimed asylum in 1999. He had been convicted in France of terrorism-related offences, and accordingly his claim also was refused on the basis that he was excluded from the protection of the Refugee Convention. He also, however, was granted limited leave to remain on the basis that his return to Tunisia would involve a breach of his rights under article 3 of the ECHR; and there have been various extensions of his leave since. He is married and has a family.
Both Claimants wish to be granted indefinite leave to remain ("ILR") but the Secretary of State has refused on the basis that that would be contrary to the RLR policy.
THE BACKGROUND LAW
THE REFUGEE CONVENTION AND THE ECHR
"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations."
There are substantially identically-worded exclusions – see articles 12 and 17 – in the so-called Qualification Directive, which establishes a regime for "humanitarian protection" in EU law: the Directive both incorporates the requirements of the Refugee Convention and to some extent widens the protected class through the medium of "subsidiary protection". I will for convenience refer to the situations covered by heads (a) to (c) as situations where the person in question is guilty of "serious crimes", though that is not quite accurate since conduct under head (c) may not be a crime, nor may he have been convicted.
"The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."
I will likewise for convenience include this exclusion under the general rubric "serious crime", though it covers also refugees who are a danger to national security.
THE DOMESTIC STATUTORY BACKGROUND AND THE RULES
(1) Sub-section (1) (b) provides for leave to be "either for a limited or for an indefinite period". Sub-section (1) (c), which I set out in full at para. 83 below, gives the Secretary of State power to impose conditions in the case of limited leave to remain; there is no such power in the case of ILR.
(2) Sub-section (2) requires the Secretary of State to lay before Parliament from time to time to time "statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter". The Immigration Rules are made, and are laid before Parliament, on that basis.
"the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct (including convictions which do not fall within paragraph 322(1C)), character or associations or the fact that he represents a threat to national security"
(Paragraph 322 (1C) grades convictions by recency and length of sentence.)
THE PREDECESSORS TO THE RESTRICTED LEAVE POLICY
(1) Normally discretionary leave would be granted for a standard period of three years, which would be extendable on application for a further such period or periods. However the period for applicants who were excluded but irremovable was limited to six months.
(2) In due course persons with discretionary leave would become eligible to apply for ILR. The general rule under the policy was that they could apply after six years, though in 2012 that period was increased to ten, in conformity with changes made in the Immigration Rules as regards other classes of migrant. However, for excluded cases the minimum period of eligibility to apply for ILR was ten years from the start. The original statement of the policy made it clear that eligibility was not equivalent to entitlement – saying that in excluded cases the minimum period was "at least 10 years, and potentially never [my emphasis]".
"20. The policy applied by the Secretary of State is - as I think is made clear by what was granted - that for someone such as the claimant, that is to say someone who is able to remain here only because of the inability to return under the Human Rights Act, a leave of six months at a time is appropriate; appropriate of course if the individual behaves himself otherwise and so long as it remains unsafe for him to be returned.
21. This policy relating to those who are not within the protection of the Refugee Convention because of Article 1 F (b) seems to me to be entirely reasonable. The rationale behind it I have not had spelled out before me, but it seems obvious that what is desired is to keep open the possibility of return and the need to consider at regular and relatively short intervals whether return can be effected because, as a general approach, those who would not qualify because of the commission of a serious offence should not generally be considered to be able to remain within this country. One can understand why that policy has been adopted.
22. Accordingly, in principle, to award only six months is not in the least unreasonable. But the policy has, as it were, a cap. It is recognised that there will come a time when - provided the individual has behaved himself in this country - it would be proper to regard him as having put behind him, as it were, the original offending. Thus if someone has been here for ten years and subjected to a series of discretionary leaves for that period he will normally be able to remain here indefinitely. He will, after all, be expected by then to have made his life in this country, to have settled here, perhaps to have established family life here. The view is, again as it seems to me, entirely reasonably taken that generally speaking - and of course each case has to be considered on its own merits - such an individual will have leave to remain indefinitely and thus will be entitled to settle here."
The statement in para. 22 that a person in the excluded but irremovable category who has been here for ten years, and behaved themselves, will normally be entitled to ILR is important for the issues in this appeal. It should be noted at this stage that it is not stated by Collins J as a proposition of law but rather as a statement of his understanding of the Secretary of State's then policy.
"Whether that [decision] should result in an immediate grant of indefinite leave is not for me to say although it may be that it is very close to any reasonable borderline. There would have to be strong justification for a refusal to regard someone like the claimant - who has been here now for well over twelve years - to have to wait any longer before being granted settlement, provided of course that he still cannot be removed and that there is nothing against him other than the original conviction which has created all the difficulties for him."
It can be fairly inferred from that passage that although, as I have said, Collins J's earlier remarks were intended as a summary of the policy rather than a proposition of law that he would have regarded a policy that provided for any delay in the grant of ILR of much longer than ten years as (in the normal case) unreasonable.
"The rationale of the discretionary leave policy is not simply to ensure regular reviews so that foreign national prisoners [being the relevant category in that case] can be removed from the United Kingdom when the opportunity arises. As outlined earlier, it is also designed to plant road blocks in the way of foreign national prisoners settling here. That does not mean that settlement will not occur. [Counsel for the Secretary of State] conceded that in the [cases of two of the claimants] settlement seemed increasingly likely as their Article 8 rights strengthened with time. However, once this preventative aspect of the policy is appreciated it seems to me impossible to contend that any of the decisions, including the earlier decisions to grant discretionary leave for six months only, were irrational or disproportionate."
THE RESTRICTED LEAVE POLICY
"With effect from 2nd September 2011 all cases excluded from the protection of the Refugee Convention by virtue of Article 1F but who cannot be immediately removed from the UK due to Article 3 of the European Convention of Human Rights will be subject to a new, tighter, restricted leave policy.
Such cases should usually only be granted restricted discretionary leave to remain for a maximum of six months at a time, with some or all of the following restrictions:
- A condition restricting the person's employment or occupation in the UK
- A condition restricting where the person can reside
- A condition requiring the person to report to an immigration officer or the Secretary of State at regular intervals;
- A condition prohibiting the person studying at an education institution
In addition, relevant information on all Article 1F cases will be referred by the UK Border Agency to the Independent Safeguarding Authority (ISA) to consider whether the individuals concerned should be barred from working/volunteering in ISA-regulated fields.
This policy applies to all relevant individuals, whether they are seeking leave or renewal of leave to remain, including cases in which a previous grant of leave to remain was for a period longer than six months.
The power to attach conditions to leave is provided by s.3(1)(c) of the Immigration Act 1971. A person who knowingly fails to observe a condition of their leave commits an offence by virtue of s.24(1)(b)(ii) of the Immigration Act 1971. Where appropriate, this policy will be enforced by the prosecution of individuals who do not comply with the conditions of their leave."
"Public interest. The public interest in maintaining the integrity of immigration control justifies frequent review of these cases with the intention of removing at the earliest opportunity. Therefore we want to ensure close contact and give a clear signal that the person should not become established in the UK.
Public protection. It is legitimate to impose conditions designed to ensure that UKBA is able to monitor where an individual lives and works and/or to prevent access to positions of influence or trust.
Upholding the rule of law internationally. The policy supports the principle that those excluded from refugee status, including war criminals, cannot establish a new life in the UK and supports our broader international obligations. It reinforces the message that our intention is to remove the individual from the UK as soon as is possible."
That threefold rationale remains central to the policy in the later form with which we are concerned.
THE 2015 POLICY
"1.1 Purpose of instruction
1.1.1 This guidance explains the circumstances in which the Home Office will consider granting restricted leave to individuals who cannot be removed because this would breach their rights under the European Convention on Human Rights (ECHR) and:
- are excluded from the Refugee Convention for Article 1F reasons, or who would be excluded were a Convention reason to apply (i.e. those excluded from a grant of Humanitarian Protection), or
- have been refused asylum under Article 33(2) of the Refugee Convention
1.1.2 The instruction provides specific guidance on:
- the categories of persons who may be granted restricted leave under this policy;
- the duration of leave and conditions that may be attached to any grant of restricted leave;
- conducting an active review in cases granted restricted leave."
1.2.1 There may be circumstances in which asylum seekers have committed war crimes, crimes against humanity, serious non-political crimes outside the country of refuge or acts contrary to the purposes and principles of the United Nations, or who are a danger to national security or are otherwise non-conducive to the public good. This includes those who espouse extremist views. For more information, see Exclusion under Article 1F of the Refugee Convention. Exclusion may either be agreed by Special Cases Unit (SCU, in OSCT) or may be imposed following an allowed appeal.
1.2.2 Our policy is to remove such individuals wherever possible because they are not welcome in the UK. However, in cases where removal cannot currently be enforced for ECHR reasons we will deny the benefits of refugee status and Humanitarian Protection and instead grant a short period of restricted leave to which tight restrictive conditions may be attached according to the particular circumstances of each case.
1.2.3 This policy applies to anyone where there is an ECHR barrier to removal, including country situations which meet the Article 15 (c) threshold or where the person would ordinarily qualify for discretionary leave because they are in the terminal stages of illness and removal meets the very high Article 3 threshold established by case law. Such individuals must not be granted Humanitarian Protection or discretionary leave but placed on restricted leave in accordance with this policy.
1.2.4 As those who fall within the scope of this policy have committed serious international crimes and/or represent a danger to the security of the UK, only Article 3 considerations will normally outweigh the public interest in removing them because it is an absolute right and the extent of the public interest cannot be taken into account. Where qualified rights are engaged, such as Article 8 ECHR, only in the most compelling compassionate circumstances could their family or private life, or medical considerations, outweigh the public interest in removal in these cases. It is expected there will be very few such cases, but where there are such cases this policy applies.
1.2.5 Such cases will be reviewed regularly with a view to removal as soon as possible and only in exceptional circumstances will individuals on restricted leave ever become eligible for settlement or citizenship. Such exceptional circumstances are likely to be very rare.
1.3 Policy intention behind Restricted Leave
1.3.1 The policy objectives in excluding individuals from the Refugee Convention and/or refusing asylum or Humanitarian Protection and instead granting shorter periods of restricted leave with specific conditions is for:
[The threefold rationale set out at para. 22 above is reproduced in identical terms.]
"Restricted leave should in most cases be limited to a maximum of six months at a time to emphasise its short-term nature and because it would be at odds with the aim of this policy to permit such a person to re-enter the UK."
The second reason given may seem rather opaque, but it refers to the fact that leave to remain granted for a period of six months or less automatically lapses if the person leaves the country. One consequence of restricting the grant in this way is that persons with restricted leave are in practice unable to travel abroad (though, as Ms Harrison pointed out, many of those who are excluded but irremovable will have no valid travel documents in any event). Paragraph 4.2.2 reads:
"All cases must be assessed individually. A shorter period than six months should be granted where removal appears to be reasonably likely within six months or where, in exceptional cases, the risk posed by the individual warrants the case being kept under review more frequently."
"One or both of the following residence conditions should usually be imposed:
- to notify the Secretary of State of the home address and any change of address;
- to seek the prior consent of the Secretary of State to any change of address."
Paragraph 4.5.6 provides that "each case must be considered on the individual facts and risks".
"These individuals are in the UK on a temporary form of leave, pending their removal from the UK when circumstances permit. The rationale for restricting study is that it underlines the temporary nature of the leave. It also reduces pressure on public finances and, for privately funded courses, ensures that the person does not occupy course spaces that would otherwise be taken up by British Citizens or lawful migrants. It is also in the wider public interest to ensure that migrants who are welcome in the UK are afforded the opportunities that come from education, ahead of those on restricted leave."
"Cases which were granted Discretionary Leave before 2 September 2011 should remain on their existing leave until it falls for renewal. When the renewal application is received, the case should be transferred to the Special Cases Unit to be considered in line with this policy and, if removal is not an option, be granted restricted leave with appropriate conditions unless exceptional circumstances justify departure from the published policy. This may mean that conditions are placed on who [sic] have not been subject to conditions before, for example they may have not had any restrictions on their employment. Reasons for imposing new conditions must be explained in the decision letter and the proportionality of them should be considered in the light of the risk the person presents and their compliance with Home Office requirements during previous periods of limited leave."
"4.12.1 Those excluded from the Refugee Convention and/or Humanitarian Protection may make applications for indefinite leave to remain on the basis of long residence, for example because they have lived in the UK lawfully for 10 years or more. The requirements are at paragraph 276B of the Immigration Rules. Consideration must be given to all the factors listed in paragraph 276B (ii) and in particular consideration must be given to the person's conduct which led to them being excluded from the Refugee Convention and/or Humanitarian Protection when looking at character, conduct and associations under paragraph 276B (ii)(c). Usually, given our international obligations to prevent the UK from becoming a safe haven for those who have committed very serious crimes, the conduct will mean that the application should be refused, but decisions must be taken on a case-by-case basis.
4.12.2 Consideration must be given to each of the general grounds for refusal under paragraph 276B (iii). Paragraph 322 (1C) sets out the grounds for refusing indefinite leave to remain where a person has a criminal conviction. For the purposes of this rule, the conviction does not have to be a UK conviction, but any overseas conviction must be for an offence which has an equivalent in the UK. For example, overseas convictions for homosexuality or proselytising would be disregarded. Consideration must also be given to the rest of the general grounds for refusal at paragraph 322.
4.12.3 Excluded individuals may seek to rely on N, R (on the application of) v Secretary of State for the Home Department  EWHC 1581 in which it was held at paragraphs 21 and 22:
[Paras. 21-22 of Collins J's judgment , which I have quoted at para. 16 above, are then set out in full.]
4.12.4 Decision-makers must carefully consider the facts of an individual case against the specific facts in the case of R on the application of N to determine whether they are analogous and whether the principles set out in that case are applicable to the case under consideration.
4.12.5 Where a person does not qualify for indefinite leave to remain, consideration must be given to whether there continues to be an ECHR barrier to removal. If there is not, then the case must be prioritised for removal. If there is, then the person must be granted restricted leave within the terms of this policy."
The Meaning of the RLR Policy as regards the Grant of ILR
(1) Although the basic policy for migrants who are excluded but irremovable is that they should receive only short periods of leave, there will come a time when, provided they have behaved themselves, they should be entitled to ILR.
(2) That time will normally come after ten years (evidently Collins J derived that figure from the DL policy: see para. 12 (2) above).
(3) Nevertheless every case must be decided on its own merits.
The grant of ILR on those "principles" cannot easily be described as either "exceptional" or "very rare".
"The various elements of the stated rationale are all in principle legitimate aims, though it will be necessary to consider the extent to which they are specifically engaged in the appellant's case. More needs to be said, however, about the stated wish to give a clear signal that the person should not become established in the United Kingdom. The rationale of the previous discretionary leave policy was described by Cranston J in [Mayaya] as being 'not simply to ensure regular reviews so that foreign national prisoners [the specific category of persons in issue in that case] can be removed from the United Kingdom when the opportunity arises', but also 'to plant road blocks in the way of foreign national prisoners settling here', though settlement might in practice still occur. In other words, the grant of short periods of leave emphasised the intended impermanence of the individual's stay in this country and made it more difficult to put down roots here and to build up a private life, thus reducing the prospect of removal being prevented on Article 8 grounds when the opportunity otherwise arose. The current restricted discretionary leave policy, by providing for the imposition of specific conditions on the grant of leave, is intended to reduce further the opportunity to put down roots and thereby to reinforce the road blocks planted in the way of settlement here. It does not prevent the establishing of a private life but makes it more difficult and so increases the chance that the delay before removal can be effected does not operate to prevent removal altogether. That is a legitimate aspect of immigration control".
"31. [Counsel for the claimant] submits first that the purpose of the policy, in so far as it relates to the creation of road blocks in the way of settlement in the United Kingdom, cannot apply at all to the appellant, since he has lived in this country since 2000 and will have long since established a new life here. I disagree. The purpose remains relevant and legitimate even in relation to a person who has been in the United Kingdom for many years. The appellant's own stay here has been imbued, as [counsel for the Secretary of State] puts it, with a sense of impermanence. Until 2008 he was awaiting a decision on his asylum claim. That claim was then rejected but he succeeded in the tribunal under Article 3 on the basis of the prevailing conditions in Tunisia. He has known since then of the intention to remove him to Tunisia as soon as a change in conditions makes it possible. He was granted 6 months' discretionary leave under the discretionary leave policy as it stood in November 2008 and can have had no legitimate expectation of anything more than successive grants of 6 months' discretionary leave since that time. There was a value in November 2008, and there is still a value, in laying down road blocks to settlement and to the further building up of private life.
32. There is no direct evidence that conditions in Tunisia have been kept under review by the Secretary of State but there is no reason to believe that this has not been done, with a view to removing the appellant to Tunisia as soon as possible. There may of course come a point where the appellant has been in the United Kingdom for so long and/or the prospect of his removal to Tunisia is so remote, that the only course reasonably open to the Secretary of State is to grant him indefinite leave to remain. That point had not been reached, however, at the date of the March 2012 decision under challenge in these proceedings. As at that date the Secretary of State was entitled to continue to approach the matter on the basis of the policy on discretionary leave and to limit the period of leave to six months in accordance with that policy."
Although the overall thrust of that passage was against the claimant, the second half of para. 32 involves a recognition, echoing the observations of Collins J in N, that a time might come where the Secretary of State was obliged to grant him ILR, notwithstanding his exclusion on account of having committed terrorist offences.
"Mr George remains liable to deportation, even though it cannot at present be carried out. His position in the United Kingdom must be regularised, but that does not entail a recognition of indefinite leave to remain. The Secretary of State's grant to him of successive limited leaves is perfectly proper. Whether or not it may become appropriate after the passage of time to re-grant indefinite leave is a matter for her."
Mr Tam drew attention to the statement that whether in due course the appellant might be re-granted ILR was a matter for the Secretary of State. That is no doubt true, but it does not help with the question of whether, or in what circumstances, a time might come where it was unlawful for her not to do so.
THE FACTS AND THE PROCEDURAL HISTORY UP TO 2015
"… [We] are satisfied that the Secretary of State has proved to a high degree of probability the allegations of terrorism identified in the Open Statements in each of these appeals in respect of each Appellant. We are satisfied that each of the Appellants has endangered national security. Furthermore … we are satisfied to the requisite standard that each of the Appellants is a danger to national security. We therefore conclude that the Secretary of State has shown that it would be conducive to the public good in the interests of national security to deport the appellants because of their involvement in international terrorist activity."
It accordingly found that he was excluded from the scope of the Convention under article 1F. However, as already noted, it went on to accept that MS would face a real risk of torture if returned to India, notwithstanding assurances to the contrary received from the Indian government, and that his removal would accordingly be in breach of his rights under article 3.
"B. You must reside at the address shown above and you must notify the Secretary of State of any change of address
C. You must not enter or change employment, paid or unpaid, or engage in any business or profession without the prior written consent of the Secretary of State.
D. You must report to an Immigration Officer at (address provided) on 21 September 2013 and monthly thereafter…
E. You must not enrol in any course of study without the prior consent of the Secretary of State."
THE UT PROCEEDINGS
(1) It held that the Secretary of State had failed in either her decision of 2 May 2014 or her more recent decision of 16 January 2015 to give any consideration to whether in his case, given that he had been in the country for over eighteen years, the time had come when he should be granted ILR notwithstanding his past involvement in terrorism: it referred in this regard to both N and Kardi.
(2) It found that she had failed to give any consideration to a request made by him for permission to undertake a course of study as a domestic gas engineer.
However it declined to quash the decision and order it to be retaken, since the six-month period of leave granted in May 2014 had already expired and the grant in January 2015 was about to: MS would thus be required to make a fresh application, and the Secretary of State to make a fresh decision, in any event. It observed at paras. 152-3 of its judgment that in making that decision she would have to take into account the matters which it had decided.
THE MS2 PROCEEDINGS
THE APPLICATION AND THE DECISION
(a) that he continue to reside at his current address and notify the Secretary of State of any change – a footnote stated that this meant that he could not spend more than three consecutive nights, or more than ten nights in any six-month period, away from home without the prior written consent of the Secretary of State;
(b) that he should not enter or change any employment without the Secretary of State's consent;
(c) that he report to an Immigration Officer at yearly intervals;
(d) that he should not enrol on any course of study without the Secretary of State's consent;
(e) that he should have no recourse to public funds.
I summarise the terms of the decision letter at paras.125-128 below.
"A combination of his links to Sikh extremist groups, historic terrorist activities in India and India's concerns about related threats from terrorist organisations, leads us to judge that MS would be of interest to the Indian authorities. As such, his removal would lead to a risk of violation of the UK's obligations under Article 2 and 3 of the ECHR."
The submission to the ministers says, among other things:
"S has been in the UK for 20 years, is not assessed to be a security threat, is married to a British citizen and has three children born in the UK."
"(1) The decision of the defendant dated 18 February 2016 be quashed.
(2) The defendant must reconsider the application by the claimant for indefinite leave to remain in accordance with the judgment herein."
THE ISSUES ON THESE APPEALS
(A) The challenge to the RLR policy. This comprises
(1) the ultra vires ground (raised by MS only), for which permission has not been given;
(2) the Alvi ground;
(3) the fettering discretion ground;
(4) the article 8 ground;
(5) the section 55 ground, for which permission has not been given.
(B) The challenges to the individual decisions. As regards MS, we are concerned only with the decision of 18 February 2016 which was quashed by Collins J in MS2: the earlier decisions challenged in MS1 are no longer material. As regards MBT, we are likewise now concerned with the decision of 25 March 2015 rather than the earlier decision of 21 August 2013.
(A) THE CHALLENGE TO THE RLR POLICY
(1) THE ULTRA VIRES GROUND
"[I]f [a person who is not a British citizen] is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely-
(i) a condition restricting his employment or occupation in the United Kingdom;
(i)(a) a condition restricting his studies in the United Kingdom;
(ii) a condition requiring him to maintain and accommodate himself, and any dependants of his, without recourse to public funds;
(iii) a condition requiring him to register with the police;
(iv) a condition requiring him to report to an immigration officer or the Secretary of State; and
(v) a condition about residence."
(2) THE ALVI GROUND
"63. Various expressions have been used to identify the test which should be used to determine whether or not material in the extraneous document is a rule which requires to be laid before Parliament. It is not easy to find a word or phrase which can be used to achieve the right result in each case. … I would prefer to concentrate on the word "rule" which, after all, is the word that section 3(2) uses to identify the Secretary of State's duty …. The Act itself recognises that instructions to immigration officers are not to be treated as rules, and what is simply guidance to sponsors and applicants can be treated in the same way. It ought to be possible to identify from an examination of the material in question, taken in its whole context, whether or not it is of the character of a rule or is just information, advice or guidance as to how the requirements of a rule may be met in particular cases.
64. I see no escape from the conclusion that the question whether or not material in an extraneous document is a rule, or a change in the rules, will have to be determined on the facts of each case. …"
At paras. 93-94 (p. 2238 D-F) Lord Dyson said:
"93. … The court has to do its best to provide a solution which (i) is consistent with such clues as are to be found in the statute, (ii) is not administratively unworkable and (iii) is reasonably certain and easy to apply, thereby minimising the risk of unwelcome litigation.
94. In my view, the solution which best achieves these objects is that a rule is any requirement which a migrant must satisfy as a condition of being given leave to enter or leave to remain, as well as any provision 'as to the period for which leave is to be given and the conditions to be attached in different circumstances' … [I]t seems to me that any requirement which, if not satisfied by the migrant, will lead to an application for leave to enter or remain being refused is a rule within the meaning of section 3(2). That is what Parliament was interested in when it enacted section 3(2). It wanted to have a say in the rules which set out the basis on which these applications were to be determined."
At para. 120 (p. 2244 F-G) Lord Clarke said:
"120. It seems to me that, as a matter of ordinary language, there is a clear distinction between guidance and a rule. Guidance is advisory in character; it assists the decision maker but does not compel a particular outcome. By contrast a rule is mandatory in nature; it compels the decision maker to reach a particular result."
He went on to agree with Lord Dyson's formulation at para 94 of his judgment, commenting at para. 122 (p. 2245 A-B) that
"… this is a principled, clear and workable approach. The touchstone is criticality: if a change in practice has the potential to determine the outcome of any application for leave to enter or remain then it must be laid before Parliament."
Lord Walker and Lord Wilson also adopted Lord Dyson's formulation.
"If a concessionary policy statement says that the applicable rule will always be relaxed in specified circumstances, it may be difficult to avoid the conclusion that the statement is itself a rule "as to the practice to be followed" within the meaning of section 3(2) which should be laid before Parliament. But if the statement says that the rule may be relaxed if certain conditions are satisfied, but that whether it will be relaxed depends on all the circumstances of the case, then in my view it does not fall within the scope of section 3(2). Such a statement does no more than say when a rule or statutory provision may be relaxed. I have referred to DP5/96 at para 9 above. It was not a statement of practice within the meaning of section 3(2). It made clear that it was important that each case had to be considered on its merits and that certain specified factors might (not would) be of particular relevance in reaching a decision. It was not a statement as to the circumstances in which overstayers would be allowed to stay. It did not have to be laid before Parliament."
"She submitted both orally and in writing that the RLR policy was in truth in the nature of a rule for a number of reasons. Firstly, it is inflexible in that every person who is excluded from the Refugee Convention but who would be at risk of a breach of Article 3 if they were returned is made the subject of the RLR policy and will only be granted RLR. This demonstrates inflexibility in the RLR policy making it in effect a rule. Further she relied upon the evidence obtained under the FOI request which demonstrated that in all cases of this kind RLR had been granted and without exception for a period of six months. The inflexibility of the RLR policy was demonstrated therefore in its application to all persons irrespective apparently of their personal circumstances. Furthermore, it appeared from the decision letters and other correspondence in MBT's case that the fact that a person had not reoffended in the United Kingdom was irrelevant and further the existence of dependent children did not appear to deflect the respondent from applying the RLR policy. Submissions were also made both in this part of the case and elsewhere contending that the conditions were inflexible as they were uniformly applied and although the detail of conditions might vary, the types of condition contemplated by the RLR policy (restricting residence, employment, reporting for example) were applied in all cases. This approach was borne out, again, by the evidence which had been obtained under the FOI request and that within the respondent's evidence."
"Applying the test posed in Alvi … together with the approach of Lord Dyson in Munir .., whilst I accept that the Restricted Discretionary leave policy applies to all cases who are excluded from the Refugee Convention by virtue of Article 1F but who cannot be removed by virtue of Article 3 of ECHR I find that the policy is not dealing with whether leave to remain has to be granted. That has to be taken as a given because of the contravention of the Human Rights Act should deportation be exercised. The objective of the policy is to guide decision makers as to how long leave should be granted for and what, if any, conditions need to be attached to the grant of leave. As such it is a concessionary policy concerning the grant of leave to persons outside the immigration rules. In other words the policy is dealing with how the grant of restricted discretionary leave should be administered. In dealing with that issue the policy does not lay down a rigid framework which has to be followed. Rather, it provides guidance to assist the decision maker as to the duration of leave and which conditions should be attached but it does not compel any particular outcome in all cases."
In the following paragraphs she went on to make good that assessment by reference to the particular provisions of the policy. At para. 59 she observed that the policy that leave should only be granted for six months at a time was prefaced by the word "usually" and permitted a grant for a shorter or longer period if the case so required. At paras. 60-69 she demonstrated that the policy did not mandate the imposition of conditions under the various heads: the language used was that of discretion. She concluded, at para. 70.
"It follows from the analysis of the provisions of the policy that it is flexible. There are some presumptions but they are clearly rebuttable. It is providing a framework of guidance to enable caseworkers administering the restricted discretionary leave policy to determine the nature and, where relevant, duration of conditions to be attached to any decision on leave. It does not compel a particular outcome. In my judgment it is a concessionary policy outside the immigration rules and did not have to be laid before Parliament."
"Thus, in summary, whilst the RLR policy is an instrument about which the s.3(2) question should be posed, we are satisfied that the combination of the flexibility in the RLR policy, flexibility which is further enhanced in the most recent policy effective from 23 January 2015 indicating that there will be some albeit rare cases in which RLR will not be imposed, together with the flexibility in relation to the conditions noted by Patterson J, lead us to the conclusion that the RLR policy is not in the nature of a rule which should have been laid before Parliament. True it is that the evidence obtained by the applicants in response to the FOI request … (showing that all 56 people currently granted RLR had reporting, prohibition of study without written consent and residence conditions imposed upon them, all bar two had employment conditions imposed, all 56 had been granted RLR for a duration of six months at a time and none had been granted RLR for a period more or less than six months) suggests that in the relatively limited number of cases in which the RLR policy has been applied, similar outcomes in respect of the various applicants have arisen. We are satisfied that, whilst the outcomes show that the decision makers placed weight (which they were fully entitled to do, as the individuals concerned had engaged in terrorist-related activity in the past) on the presumption that the duration of leave will usually be six months and the presumption in favour of the imposition of all four conditions, the fact is that employment restrictions were not imposed on two out of fifty-six individuals. In our view, this does not show inflexibility but it shows weight being placed on the presumption. It is also important in our view to examine the RLR policy itself and its terms to see whether it is in reality a rule as to the practice to be followed in respect of these cases. On examination of the RLR policy, we are satisfied that it is not."
"In order to be sufficiently flexible, the policy would have to permit consideration of individual circumstances at the point of deciding whether they should be dealt with - or continue to be dealt with - under the policy. The policy does not provide any guidance on the circumstances which may inform that decision. It simply provides that the default position is that the RLR policy would be applied to all excluded persons. This is the same whether conduct giving rise to the exclusion was 20 years ago or 1 year ago and whether lawful residence in the UK is of 20 years or 1 year's duration and whether or not any similar restrictive measures have been deemed necessary during any period of residence in the UK."
"[T]he Respondent's policy cannot be said to be advisory in character, assisting the decision maker but not compelling a particular outcome. I find the contrary to be the case - it lacks any flexibility and constrains a decision-maker to imposing a NRPF condition if an applicant has not met identifiable and specific criteria. It is, therefore, in the nature of a rule as to the practice to be followed in the administration of the 1971 Act for regulating the stay in the United Kingdom of persons required to have leave to enter, in that it is a rule relating to the conditions to be attached to such leave. For that reason, in my conclusion it should have been laid before Parliament pursuant to section 3(2) of the 1971 Act."
That may well have been the right decision as regards the instruction in that case but I do not believe that the same can be said as regards the RLR policy, which can indeed be said, for the reasons I have given, to "assist the decision-maker but not compel a particular outcome".
(3) THE FETTERING DISCRETION GROUND
(4) THE ARTICLE 8 GROUND
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"76. The Court recalls its well established case-law that the words 'in accordance with the law' require the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual - if need be with appropriate advice - to regulate his conduct.
77. For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise. The level of precision required of domestic legislation - which cannot in any case provide for every eventuality - depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed."
The final sentence of para. 77 is important. In cases involving the exercise of highly intrusive state powers the rule of law requires that the scope of any discretion be defined with a high degree of specificity. The present case is not like that. Conditions of the kind identified in section 3 (1) (c) of the 1971 Act, as elaborated in section 4 of the RLR policy, do no doubt to some extent inhibit the exercise of private or family life, but they are not inherently comparable in their intrusiveness to having your telephone tapped (Malone) or being subjected to police stop-and-search (Gillan and Quinton), still less to being summarily taken away from your family and deported (Lupsa). And if the power to impose such conditions in question is in fact exercised arbitrarily, judicial review is an available remedy: it is illegitimate to characterise a policy as not "in accordance with the law" simply because it would be capable of applied unreasonably. The same goes for the reference to Al-Nashif. The absence of procedural safeguards which the Court found in that case consisted in the absence of any right at all to mount a judicial challenge to the deportation of a stateless person resident in Bulgaria on claimed grounds of national security. That situation is not remotely comparable to the present case. I can see nothing in the terms of the RLR policy which is inherently contrary to the rule of law.
"We are in no doubt for reasons which will already have become obvious that the interference which arises under the RLR policy, both as to time limited periods of leave and also as to the conditions which are imposed upon that leave, is necessary for public safety, the economic wellbeing of the country, the prevention of crime and disorder and, in some cases, national security. Leaving aside the fact sensitive assessment of proportionality, we see no objection in principle to the interference with Article 8 rights which may arise through the limitation of the time period for leave or the conditions placed upon it. The reasons why they are necessary are appropriately and adequately explained in [the 2012 and 2015 Instructions] providing the rationale for the RLR policy. Understood in this way and in accordance with the approach in Razgar, the interferences with Article 8 which occur are lawful and within the scope of Article 8. Although as a generality Article 8 may contain in its application some positive obligations, it is a qualified right. The issue in relation to any interference with Article 8, or any obstacle to the development or enhancement of Article 8 rights, is whether that interference is necessary in the various interests of a democratic society set out above. Once it has been concluded that it is necessary then the interference is justifiable and within the scope of the Article 8 right."
It went on at para. 120 to say that although it would have reached that conclusion without reference to authority its view was consistent with what Richards LJ had said at para. 29 of his judgment in Kardi – see para. 44 above.
"The essence of the conclusions … in Kardi were that the restrictions in that case had a limited impact and were slight restrictions. The factual circumstances of the instant cases … illustrate that the imposition of short periods of leave together with restrictions of the kind described by the RLR policy can have greater impacts than they did in that case. However, there are a number of important points which need to be made about the RLR policy in connection with Article 8."
"130. Firstly, the decision to grant … six months leave to remain does not interfere with the development of family life in principle. At its height, it may have an impact on the quality of that family life bearing in mind the potential insecurity which being granted successive periods of time limited leave may create. However, bearing in mind the objective of retaining the opportunity to remove someone excluded from the Refugee Convention by virtue of Article 1F at the earliest opportunity, the provision of such time limited leave is not in and of itself disproportionate in so far as it may interfere with the quality of the development of Article 8 rights and insofar as it is subject to the overall governing consideration that there may come a point in time when the failure to grant ILR will be unreasonable bearing in mind the particular circumstances of the case.
131. Secondly, similar considerations apply to the restrictions which can be imposed by way of conditions on the time limited leave. In our view in principle they are a proportionate interference provided that they are carefully measured against the individual circumstances of the case (as required by the policy itself) and are no more than is necessary to achieve the objective of the policy set out above. This conclusion does not mean that in each and every case the imposition of time limited leave and all of the conditions contemplated by the policy would be proportionate. The policy must be applied in a fact sensitive manner on a case by case basis.
132. Given that family life may continue notwithstanding a time limited grant of RLR, very strong evidence would be needed to prevail over the public interest and public protection considerations which are given effect in the three purposes of the RLR policy … so as to make it unreasonable for the respondent not to grant RLR for more than six months or not to impose the usual conditions. This is only likely to occur very rarely indeed, save that it may be easier, depending on the circumstances, for an individual to establish a case for departing from the usual condition prohibiting studies than the other three conditions mentioned".
(5) THE SECTION 55 GROUND
CONCLUSION ON THE CHALLENGE TO THE RLR POLICY
(B) THE INDIVIDUAL DECISIONS
"Where a Contracting State tolerates the presence of an alien in its territory thereby allowing him or her to await a decision on an application for a residence permit, an appeal against such a decision or a fresh application for a residence permit, such a Contracting State enables the alien to take part in the host country's society, to form relationships and to create a family there. However, this does not automatically entail that the authorities of the Contracting State concerned are, as a result, under an obligation pursuant to Article 8 of the Convention to allow him or her to settle in their country. In a similar vein, confronting the authorities of the host country with family life as a fait accompli does not entail that those authorities are, as a result, under an obligation pursuant to Article 8 of the Convention to allow the applicant to settle in the country. The Court has previously held that, in general, persons in that situation have no entitlement to expect that a right of residence will be conferred upon them (see Chandra and Others v. the Netherlands (dec.), no. 53102/99, 13 May 2003; Benamar v. the Netherlands (dec.), no. 43786/04, 5 April 2005; Priya v. Denmark (dec.) no. 13594/03, 6 July 2006; Rodrigues da Silva and Hoogkamer v. the Netherlands, no. 50435/99, § 43, ECHR 2006-I; Darren Omoregie and Others v. Norway, no. 265/07, § 64, 31 July 2008; and B.V. v. Sweden (dec.), no. 57442/11, 13 November 2012).
The situation there considered is closely analogous to that of migrants who are excluded but irremovable, who likewise present the host country with a fait accompli. However it was common ground before us, as noted at para. 102 above, that decisions under the RLR policy did not consist simply in the refusal of ILR, and that viewed as a whole there was liable to be at least some interference with article 8 rights. In striking the proportionality balance, so far as necessary, it will be important for the Court to bear in mind that the interference with private and family life in these cases is typically of a limited character: see paras. 108-109 above. The assessment is also likely to involve aspects on which particular respect must be paid to the judgement of the Secretary of State. In all cases involving terrorist offences full weight must be accorded to her view that it is not in the public interest to allow this country to become a safe haven for terrorists and to any other, more specific, aspects of the case requiring a judgement on matters of national security or foreign relations. Particular respect should likewise be paid to any view she may express as to the public acceptability of the grant of ILR to migrants who have committed certain kinds of offending.
The Decision Letter
"33. Paragraph 322 (5) is a broad consideration that takes account of a range of matters not limited to criminal convictions or the risk of reoffending alone. By statute rehabilitation of offenders is not relevant to immigration decisions so offending must always be taken into account. However, it is recognised that the Courts have indicated that there will be occasions where a concept of rehabilitation of offenders may be relevant on the basis that there will be some circumstances where it is legitimate to consider that the individual can put their offending 'behind them'. However, even where the rehabilitation of offenders' provisions can apply the most serious offending is excluded from them in recognition of the fact that some offences cannot be regarded as diminishing in all significance by the mere elapse of time and adherence to law abiding conduct which is expected of all. Consideration has been given to whether the nature of the reason for exclusion from Article 1F of the Refugee Convention is one that can be regarded as posing an especially serious threat to the community in the UK and overseas. Any possibility for deterrence of such involvement by others or reengagement by past offenders is especially important to the public interest. It is a key part of the UK's international stance that it condemns terrorism and crimes against humanity and will not tolerate or condone such conduct. The UK maintains a policy of exclusion of those who advocate terrorism action. Other examples of the UK's firm stance on terrorism is given by the resettlement policy for Mandate Refugees which excludes those who have been involved in terrorism of crimes against humanity. The UK Government will not harbour terrorists or those who commit crimes against humanity save where it is bound by Article 3 ECHR not to remove them for the time being. Consistent with the need to maintain a firm approach to terrorism and crime against humanity, whilst the possibility of granting permanent settlement in the UK to those found to be involved in terrorism or crimes against humanity is not excluded altogether, it is not likely to be justified save in exceptional circumstances given the adverse impact on the public interest. Such exceptional circumstances cannot be defined in advance but cases are likely to be self-evident from their compelling nature.
34. The circumstances of your case have been examined to determine if they are such as to justify the grant of permanent settlement notwithstanding the judicial findings in relation to terrorism. It is noted that you have been resident in the UK for 20 years as a result of the Article 3 ECHR obstacle to removal. That period is not regarded as so exceptional as to justify the grant of ILR in itself. It is noted that during that period there have been no convictions and consideration has been given to the evidence provided at the hearing to demonstrate that you have provided due assistance to your family and immediate community. Consideration has been given also to your family circumstances and the submissions made in relation to them in support of the application for ILR. Taking account of all the matters that weigh in your favour it has been determined they are not sufficient to displace the serious grounds pursuant to paragraph 322 (5) to justify the grant of ILR. However, your circumstances are considered as sufficient to justify the grant of a longer period of RL than would be usual."
The final sentence is the only explanation offered for the grant of a two-year period. The most obvious explanation, though it is no more than an inference on my part, is that it represents a first step, and that if circumstances are the same at the end of the two-year period, a longer period of leave, or indeed ILR, will then be considered.
The Reasoning of Collins J
"The importance of the instruction in 4.12 is that it recognises that, despite the proper maintenance of the view that it is not conducive to the public good that a person be allowed to remain, it may be appropriate to grant him ILR. Further, it recognises that one who has been here lawfully, in that he has had leave to remain in being for at least 10 years may qualify for ILR. It must be borne in mind that if a person such as the claimant whose presence in the UK is not conducive to the public good can be removed his leave, whether limited or indefinite, can be brought to an end by a deportation order. There will of course be a right of appeal, but that will apply whether or not any leave is still subsisting, if, as will almost certainly be the case, human rights grounds are relied on."
I note at this point that his reading of the effect of the policy does not correspond to mine: see para. 39 above.
"It seems clear from this that there is no reason to believe that it would be possible to remove him to India in the foreseeable future and it is clear that he is no longer a risk. Thus on its face the approach set out in N which is referred to in the instructions on the application of the RLR policy should apply to this case."
"That is not in conformity with the RLR policy which recognises the possibility of rehabilitation by lapse of time."
He also refers to the emphasis placed on the importance of excluding people who advocate terrorism but continues:
"That is no doubt appropriate, but it fails to take into account the assessment that the claimant was no longer to be considered a risk to the security of the UK since he no longer advocated terrorist action."
He quotes the statement in para. 33 of the letter that "exceptional circumstances cannot be defined in advance but cases are likely to be self-evident from their compelling nature". He continues, at para. 19:
"While I recognise that it is for the defendant to decide what amount to exceptional circumstances, it is necessary for her to take account of all relevant matters and to show in a given case that that has been done. The omission to refer to the lack of any risk to security and the very remote possibility of return to India within the foreseeable future is important. I put to Ms Anderson that, if the evidence showed that there could never be any chance of return within a person's lifetime, it would mean that to maintain limited leave was unreasonable. She was not willing to accept even that on the basis that it would run contrary to the need to show the world that the UK would not accept terrorists. Such an approach is not only unreasonable but contrary to the RLR policy itself."
"28. The only purpose now of a grant of limited as opposed to indefinite leave is to leave open the opportunity to remove the claimant and make clear to him that his presence here is not conducive to the public good and that, if he could be, he should be removed. He has already had full opportunity to establish not only family life but private life. Thus there is no need for any of the conditions which can only be imposed if limited leave as opposed to indefinite leave is granted. It could be said that the 9 years he was here without conditions points clearly in that direction.
29. In my judgment, if this case is not one in which the time has come to grant ILR, it is difficult to see what circumstances would qualify for ILR. The last sentence of paragraph 33 of the decision letter which said that exceptional circumstances which would justify ILR could not be defined in advance but would be likely to be self-evident from the compelling nature I have already criticised. But, if it is to be applied, I am satisfied that they are shown here."
"It is noted that a longer period of limited leave or indefinite leave to remain may arguably be in your children's best interests because it would reduce the level of uncertainty regarding your status in the UK. However, it is considered that your children's best interests in this regard are outweighed by the public interest reasons for removing you from the UK."
Paras. 37 and 38 read:
"37. Therefore, it is considered that there are no exceptional circumstances in your case because the decision to grant you six months' Restricted Leave will not result in a breach of the UK's obligations under article 8 of the ECHR, and having considered all the available evidence, it is considered that you do not qualify for leave to remain outside the Immigration Rules on the basis of Article 8.
38. The Secretary of State has an obligation to maintain effective immigration control, prevent crime and disorder and protect the rights and freedoms of others, specifically due to the acts of terrorism you previously committed and the need for the UK not to act as a refuge for those who are excluded from the Refugee convention due to their criminality and due to committing acts of terrorism."
(Something has gone wrong with the English in para. 38, but I reproduce it as it appears.) Despite the introductory "therefore", those two paragraphs evidently go beyond a consideration of section 55 of the 2009 Act. Para. 37 is concerned with article 8; and para. 38 can perhaps be read as considering whether there are exceptional circumstances justifying the grant of ILR for the purpose of the RLR policy, though if so it would have been better if that had been done explicitly.
The UT Proceedings
"(1) Was it unlawful to refuse to grant MBT ILR and to grant him RLR given that:
(i) The Respondent refused to consider whether he should be granted ILR until he had completed 10 years DL,
(ii) He had resided lawfully in the UK since 13 May 1999 as an asylum seeker, there was a delay of 5 years before he was granted DLR in July 2004, four years between his application of 2005 and grant of 2009 and four years between his application of 2009 and grant of 2013 during which periods there was little or no contact from the respondent;
(iii) He had not been subject to any national security or other restriction, had lived a law-abiding life in the UK and was 'rehabilitated';
(iv) He has a wife and four British citizen children all settled in the UK, the children knowing no life outside England.
(2) Could the RLR policy rationally be applied to MBT?"
(Issue (1) (i) relates to the 2013 decision with which we are not now concerned.)
"The Upper Tribunal misdirected itself as to whether the requirement of fair dealing required the respondent to consider (i) disapplying the ILR policy and/or (ii) granting settlement to the Applicant in accordance with a written indication to him in July 2004 and her discretionary leave policy. The tribunal erred in law in concluding that the consideration of whether to grant settlement on an "exceptional" basis by the Respondent's post-issue decision dated 20 March 2015 could or did meet the Respondents' obligation to deal fairly and lawfully with the Applicant."
Lord Justice Simon:
Lady Justice Gloster:
Note 1 The Home Office view appears to be that article 33 (2) provides grounds for refusal of asylum rather than exclusion from the scope of the Convention. That may be right, though I am not sure what substantial difference the distinction makes, but it is more convenient to refer to it for present purposes as a ground of exclusion.
[Back] Note 3 I appreciate that the RLR policy does itself contain guidance about the imposition of a “no recourse to public funds” condition: see para. 30 above. But that is not a condition about which particular complaint is made in either case; and it was not, as I understand it, Ms Weston’s submission that the lawfulness of the entire policy could be impugned even if this particular condition had the character of a rule. [Back] Note 4 We were reminded by Mr Tam that such cases do occur. Obvious examples where there has been profound political change such that previous threats to the article 3 rights of an excluded asylum-seeker can be discounted include South Africa and Kosovo. [Back] Note 5 Essentially the same point is of course made inN, but Richards LJ’s statement is more directly apposite, because he is stating what the position is in law, rather than, as Collins J was, the effect of the Secretary of State’s then policy as he understood it. [Back] Note 6 I should mention another related factor which may arguably be relevant in some cases, namely the strength of the case that the migrant is indeed guilty of the conduct which has led to his exclusion. The point does not arise in either of the cases before us since there are judicial findings of guilt. But that may not always be the case: article 1F refers only to “serious reasons to consider” that the applicant is guilty of the crimes in question. [Back] Note 7 The numbering re-starts at 39 after para. 40, so that there are two paras. 39 and 40. I suspect that this anomaly reflects the exercise of fitting case-specific reasoning into boiler-plate paragraphs. [Back]
Note 1 The Home Office view appears to be that article 33 (2) provides grounds for refusal of asylum rather than exclusion from the scope of the Convention. That may be right, though I am not sure what substantial difference the distinction makes, but it is more convenient to refer to it for present purposes as a ground of exclusion. [Back]
Note 3 I appreciate that the RLR policy does itself contain guidance about the imposition of a “no recourse to public funds” condition: see para. 30 above. But that is not a condition about which particular complaint is made in either case; and it was not, as I understand it, Ms Weston’s submission that the lawfulness of the entire policy could be impugned even if this particular condition had the character of a rule. [Back]
Note 4 We were reminded by Mr Tam that such cases do occur. Obvious examples where there has been profound political change such that previous threats to the article 3 rights of an excluded asylum-seeker can be discounted include South Africa and Kosovo. [Back]
Note 5 Essentially the same point is of course made inN, but Richards LJ’s statement is more directly apposite, because he is stating what the position is in law, rather than, as Collins J was, the effect of the Secretary of State’s then policy as he understood it. [Back]
Note 6 I should mention another related factor which may arguably be relevant in some cases, namely the strength of the case that the migrant is indeed guilty of the conduct which has led to his exclusion. The point does not arise in either of the cases before us since there are judicial findings of guilt. But that may not always be the case: article 1F refers only to “serious reasons to consider” that the applicant is guilty of the crimes in question. [Back]
Note 7 The numbering re-starts at 39 after para. 40, so that there are two paras. 39 and 40. I suspect that this anomaly reflects the exercise of fitting case-specific reasoning into boiler-plate paragraphs. [Back]