England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Upper Tribunal (Immigration and Asylum Chamber)
Ockelton V-P and UTJ Martin

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/05/2018

Lord Justice Underhill :

INTRODUCTION

1. The Respondent is a national of Rwanda, of Hutu ethnicity. He is aged 62. He is a bishop of the Anglican Church. At the time of the Rwandan genocide in 1994 he was Bishop Co-Adjutor of the Kigali diocese. There are issues, to which I will return, about whether or to what extent he was complicit in the genocide or an apologist for it in the immediate aftermath. In 1997 he left Rwanda and spent one or two years in Canada. In 1998 he became a Missionary Bishop and Representative of the Archbishop of West Africa in Cameroon.
2. In January 2004 he came to this country, on a student visa, to study at a theological college in Birmingham and was subsequently granted leave to remain as a minister of religion until 31 January 2007 (though he was strictly without leave between 1 October and 3 November 2006 as a result of a late application). He has held various positions in the parish ministry and as a teacher.
3. Prior to the expiry of his leave in 2007 the Respondent made a further application. That prompted an investigation into his history in Rwanda, and in June 2008 the application was refused on the ground that his conduct rendered the grant of leave undesirable. That decision was subsequently withdrawn, and in March 2009, before any fresh decision was taken, he applied for asylum in this country.
4. By a decision dated 10 March 2011 ("the 2011 decision") the Secretary of State refused the Respondent's application for asylum on the basis that there were "serious reasons for considering that he had committed … a crime against humanity" by reason of complicity in the Rwandan genocide, and that he was accordingly excluded from the protection of the Refugee Convention by virtue of article 1F (a), which reads:

"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)-(c) …"

The letter is 25 pages long and contains very detailed reasons for the Secretary of State's conclusion. The reasons are avowedly based on a report compiled by UK Border Agency's Special Cases Directorate, which itself drew on various sources (including a report referred to below called the African Rights Report). However, it was concluded that the Respondent's return to Rwanda might involve a breach of the UK's obligations under article 6 of the European Convention on Human Rights, and he was accordingly granted six months discretionary leave to remain, which would expire on 9 September 2011. Under section 83 of the Nationality, Immigration and Asylum Act 2002 the Respondent had no right of appeal against that decision.

5. On 25 August 2011 the Respondent applied for further leave to remain. That application was refused by letter from the Secretary of State dated 20 March 2014 ("the 2014 decision"). I shall have to return to aspects of this decision in due course, but at this stage I need only say that she relied on the suitability provisions of section S-LTR.1 of Appendix FM to the Immigration Rules, and specifically paragraph S-LTR.1.6, which provides (so far as material) that leave should not be granted where:

"the presence of the applicant in the UK is not conducive to the public good because their conduct …, character, associations, or other reasons, make it undesirable to allow them to remain in the UK".

She said that the Respondent fell within the terms of that paragraph because of "your previous conduct in Rwanda leading to your exclusion from the Refugee Convention". She relied on the reasons given in the 2011 decision.

6. The Respondent appealed to the First-tier Tribunal. I need not summarise his grounds, but he included with them a notice under section 120 of the 2002 Act claiming that he was entitled to indefinite leave to remain ("ILR") under paragraph 276B of the Rules, since he had now been lawfully resident in the UK for ten years.
7. The relevant parts of paragraph 276B as it stood at the material time read:

"276B The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:

(i) (a) [sic] he has had at least 10 years continuous lawful residence in the United Kingdom.

(ii) having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his:

(a)-(b) …; and

(c) personal history, including character, conduct, associations and employment record; and

(d)-(f) …; and

(iii) the applicant does not fall for refusal under the general grounds for refusal.

(iv)-(v) …"

The "general grounds for refusal" referred to under head (iii) are to be found in Part 9 of the Rules. They include paragraph 320 (5), which is in similar terms to paragraph 276B (ii) (c).

8. The Respondent's appeal was heard at Birmingham on 3 June 2015 by a Tribunal consisting of Upper Tribunal Judge Renton and First-tier Tribunal Judge Pirotta. He was represented by Mr Adam Pipe of counsel, who also appears before us. The Secretary of State was represented by a Senior Home Office Presenting Officer, Mr Wilding. Both parties lodged documentary evidence about the Rwandan genocide in general and the Respondent's alleged conduct in connection with it in particular, together with expert reports. The Respondent also gave oral evidence and was cross-examined about the allegations against him.
9. It was not part of the Respondent's case before the FTT that he qualified for asylum. This was because he was, as will appear, in good standing with the Rwandan government, and he was accordingly unable to say that he would be at risk of persecution on return. The appeal proceeded on the basis that the only issue was whether he was entitled to ILR under paragraph 276B, as claimed in his section 120 notice; and, more particularly, whether the conduct on which the Secretary of State had relied in refusing his claim in the 2014 decision meant that he was disqualified under heads (ii) (c) and (iii). Ms Julie Anderson, who appears before us for the Secretary of State, suggested that this was not an entirely satisfactory way to proceed since there had been no prior decision of the Secretary of State on that question. However, it was common ground that the provisions in question were to substantially the same effect as paragraph S-LTR.1.6, on which the Secretary of State had relied in the 2014 decision; and in any event Mr Wilding agreed to proceed on this basis.
10. By a decision promulgated on 2 July 2015 the FTT allowed the Respondent's appeal "to the extent of finding that [the Secretary of State's] failure to consider the long residence grounds set out in the [Respondent's] Section 120 Notice is not in accordance with the law, bearing in mind our finding that [he] qualifies for leave to remain on that basis". I will return to its reasoning in due course.
11. The Secretary of State sought permission to appeal to the Upper Tribunal. Four grounds of appeal were pleaded. The headings are (1) "Material Misapplication of Law", (2) "Failure to Give Adequate Reasons for Finding", (3) "Procedural Unfairness, and (4) "Material Misdirection of Law"; and a number of particular criticisms are advanced under those headings.
12. Permission was granted by Upper Tribunal Judge Martin. She said:

"I grant permission to appeal on the basis that it is arguable that the First-tier Tribunal may have erred in concluding that the fact that the appellant [i.e. the respondent before us] is excluded from the Refugee Convention under Article 1F (a) is not determinative under paragraph 276B (ii) of the Immigration Rules."

On the face of it that ground is a good deal more limited than those pleaded in the grounds of appeal. However, it was common ground before us, by reference to the decision of the Upper Tribunal in Ferrer (Limited Appeal Grounds; Alvi) [2012] UKUT00304 (IAC), that the totality of the pleaded grounds remained open to the Secretary of State in the Upper Tribunal.

13. The appeal was heard on 29 January 2016 by a Tribunal comprising Mr Mark Ockelton (the Vice-President of the Upper Tribunal) and UTJ Martin. The parties were again represented by Mr Pipe and Mr Wilding. By a decision promulgated on 19 May 2016 the Secretary of State's appeal was dismissed. Again, I will return to the Tribunal's reasoning in due course.
14. This is an appeal against that decision. The application for permission initially came before me on the papers. I had some difficulty identifying the true basis of the appeal from the pleaded grounds and directed an oral hearing. In advance of that hearing Ms Anderson filed amended grounds of appeal and skeleton argument. After hearing submissions on the basis of those amended grounds I gave permission. I gave a short judgment giving my reasons for doing so, in which I made some observations with the aim of elucidating the issues and drawing attention to some difficulties.

THE 2014 DECISION LETTER

15. The structure of the 2014 decision letter is as follows.
16. Paras. 5-9 rehearse the fact that the 2011 decision had found the Respondent to be excluded from the protection of the Refugee Convention under article 1F (a). The letter cross-refers to the terms of that decision, saying that there is no need to repeat them. The remainder of the letter addresses the application for further leave to remain.
17. Paras. 10-14 consider whether the Respondent's return to Rwanda would involve a breach of article 3 of the Convention and conclude that it would not. Paras. 15-36 revisit the question of whether his return would involve a breach of article 6 and likewise conclude that it would not. We are not concerned with either of those issues.
18. Paras. 33-41 consider the Respondent's claim under article 8, which the Secretary of State addresses in accordance with Appendix FM to the Immigration Rules. Paras. 37-39 read as follows:

"37. There are serious reasons for considering that you have committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instrument drawn up to make provisions in respect of such crimes under Article 1F(a) of the Geneva Convention. Furthermore, in the 2002 White Paper, 'Secure Borders, Safe Haven' the government made a specific commitment that the United Kingdom should not provide a safe haven for war criminals or those who commit crimes against humanity. It is therefore considered that you have failed to meet the relevant test for suitability under S-LTR.1.6. of the Immigration Rules. S-LTR.1.6. states:

38. [Para. S-LTD.1.6 is quoted in full.]

39. It is considered that your previous conduct in Rwanda leading to your exclusion from the Refugee Convention makes it undesirable to allow you to remain in the UK. Your application to be granted limited leave to remain in the UK on Article 8 grounds is refused under paragraph S-LTR."

19. Paras. 40-41 consider whether the Respondent is entitled to leave "outside the Rules". Para. 41 reads:

"As already indicated above you have been excluded from the protection of the refugee convention under Article 1F (a). In order to protect the wider public interest, it is vital for the UK to maintain effective immigration control, more so in respect of individuals who have committed acts deemed as being undesirable. In pursuit of that aim and having weighed up your interested, it is believed that any interference with your family and/or private life would be legitimate, necessary and proportionate and in accordance with law. It is not accepted that Article 8 would be breached by your removal from the United Kingdom."

THE FTT's REASONS

20. Paras. 1 and 2 of the FTT's decision explain the procedural history and the issues, namely:

"… whether the Appellant can satisfy the requirements of paragraph 276B(ii) and (iii) of HC 395, and therefore also paragraph S-LTR.1.6 of Appendix FM of HC 395."

21. Paras. 3 and 4 are headed "Evidence". Para. 3 lists the documentary material that was before the Tribunal. This was very extensive: we were told that it amounted to six bundles. It included the principal materials which were the basis of the 2011 decision – the UKBA 2010 report and at least some of the reports on which it was based. None of this material has been placed before us on this appeal. Para. 4 refers to the fact that the Respondent gave evidence and was cross-examined, but it says that it is unnecessary to repeat what he said because it was recorded in "the Record of Proceedings" – that is, the notes kept by the Judge(s) in the course of the hearing, which are retained on file. We have not seen them either. Para. 4 also says that the Tribunal has taken account of Mr Pipe's skeleton argument, but the submissions in it are not summarised. The remainder of the Decision, paras. 5-14, comes under the heading "Discussion". It is necessary to quote from it quite fully.
22. Para. 5 sets out a fundamental point about the Tribunal's approach. Because, to anticipate its eventual conclusion, it believed that the appeal should succeed even if the allegations made against the Respondent about his role in the genocide were true, it regarded it as unnecessary to make findings about those allegations. Thus, while it recorded that the Respondent "contest[s] most if not all of the allegations made against him by [the Secretary of State]", it said that "we will decide this appeal by taking [the Secretary of State's] case at its highest which means by assuming [her] allegations … to be factually correct".
23. It is common ground that the Tribunal took that approach entirely of its own motion and without canvassing it with the parties first. Singh LJ believes that it was wrong to do so, and that it was not in a position to make the necessary judgments about the Respondent's application for leave to remain without making positive factual findings. I understand his concern about this, and I am not sure that if I had been in the Tribunal's position I would have taken the same course. But I cannot see that it is objectionable in principle as long as it was conscientiously followed through. In any event, I do not believe that the objection is open to the Secretary of State. It was not one of her grounds of appeal to the UT that the FTT was wrong to proceed on the basis of assumed facts, nor – consistently with that – was it one of the initial grounds of appeal to this Court. In her Amended Grounds Ms Anderson did take the point that it was wrong of the FTT to proceed in this way. However, in a revised version filed shortly before the hearing she said (see para. 10) that the point was not being maintained as such: her case was only that if the FTT was to pursue this course the Secretary of State's case had to be accepted in full.
24. That being its avowed approach, the Tribunal proceeds at paras. 6-8 to summarise "the [Secretary of State's] case as put by Mr Wilding at the hearing". That formulation is important. As I have said, the reasons in the 2011 decision letter are very full and refer extensively to the voluminous documents that were put before the Tribunal. The Tribunal evidently, and reasonably, looked to Mr Wilding to provide some kind of overview or summary of the essential points; and Mr Pipe, who was there, confirmed that that is indeed what Mr Wilding did. The three paragraphs broadly correspond to what Mr Pipe told us were the three main heads of Mr Wilding's submissions. They read:

"6. The Respondent's case as put by Mr Wilding at the hearing is that the Appellant is complicit in the genocide owing to his position in the Anglican church in Rwanda and his actions or lack of them in the Kigali and Shyogwe area in April to June 1994. It is common ground that during that period the interim Government of Rwanda instigated and organised the mass killings of Tutsis. As recorded in the African Rights Report at pages 129 to 152 of Document C of the Respondent's bundle, at the height of the killings there was no attempt by the Anglican or other churches to intervene or even condemn. Indeed some bishops had supported the genocide and even participated in the killings, although this is not an allegation made against the Appellant [my emphasis]. In any event, senior Anglican figures had close connections with the interim Government.

7. The African Rights Report states that the Appellant had many meetings with the Interahamwe and members of the interim Government in the Shyogwe area at the relevant time. After the Appellant took control of his parish following the departure of Bishop Musabyimana, he arranged for Tutsis to be excluded from refuge. He did not use his frequent journeys to Kigali to assist Tutsis, and refused to help those in hiding such as Esperance Umurungi and her husband.

8. In May 1994 the Appellant was one of those chosen to travel abroad as a propagandist to convince outsiders that the Government was legitimate. The Appellant wrote a letter from Shyogwe blaming the rebels for the troubles and arguing that the Government was doing its best to bring back peace. Later in order to convey the same message the Appellant travelled to Nairobi where he denied the genocide in a TV broadcast. Later still during visits to the UK, Canada, and New York the Appellant did not condemn the genocide. Indeed, he deliberately avoided the use of the word 'genocide'."

That summary is at points rather allusive and assumes a certain knowledge of the background. Because, as I have said, we have not ourselves seen the materials that were before the Tribunal I am not in a position authoritatively to gloss what it says. But I should perhaps spell out two points which are uncontroversial background:

(1) Shyogwe was one of the main locations where the mass killing of Tutsis took place.

(2) The Interahamwe were the Hutu paramilitary group which was responsible for most of the killings. It was closely associated with the then interim government.

25. It is important to identify the key allegations against the Respondent appearing from that summary:

(1) He was present in Shyogwe during the time of the killings and by his presence as a senior churchman, and his failure to take any action to intervene or condemn them, he was to be regarded as having condoned them. However, the Tribunal makes it clear in the penultimate sentence of para. 6, which I have italicised, that it was not part of the Secretary of State's case that he "supported the genocide [or] … participated in the killings", even though other bishops were alleged to have done so. This is obviously a very important point: if the case against the Respondent were that he had participated in the killings the issues would be very different.

(2) He subsequently "arranged for Tutsis to be excluded from refuge" and did nothing to help those at risk.

(3) He was an apologist for the government and a "genocide-denier" both at the time and in the immediate aftermath.

26. Para. 9 starts by saying that despite the Respondent's denial that his behaviour fell within the terms of article 1F (a), the Tribunal would decide the appeal on the basis that it did: that is of course essentially the same approach as set out in para. 5 (see para. 22 above). It continued:

"We remind ourselves that such a context is not determinative of this appeal, and Mr Wilding did not argue to the contrary. Article 1A(f) [sic] is absolute in its application to entitlement to refugee status, but paragraph 276B(ii) of HC 395 and paragraph S-LTR.1.6 of Appendix FM contain other factors to be considered. This means that redemption is possible, and that therefore what the Appellant has done since 1994 is relevant and carries weight. It is not necessarily the case that somebody involved in a crime against humanity in 1994 is an undesirable immigrant in 2015."

27. As trailed in that paragraph, the Tribunal goes on to consider "what the [Respondent] has done since". Para. 10 reads as follows:

"After the genocide, the Appellant became the first senior Anglican churchman to return to Rwanda in August 1994 in order to help with reconciliation. In May 1995, he co-ordinated the visit of the then Archbishop of Canterbury George Carey to Rwanda. He was appointed the diocesan Bishop of Kigali in July 1995, but the appointment was controversial, and the Appellant resigned from that post in April 1997 in the belief that it would assist reconciliation. Prior to his resignation, he had instigated the decision to make the church at Ruhanga a memorial to the genocide in May 1995, and in June 1995 at a burial ceremony for victims killed in a Catholic parish church at Nyarubuye, the Appellant went on record to acknowledge that the church leadership had erred in the past and had cause to repent and apologise to society at large for its shortcomings. Further, on 30^th May 1996 the Appellant issued a statement in which he acknowledged and repented the fact that owing to his cowardliness and weakness he had not taken various opportunities to condemn and speak out against the genocide. The Appellant sought forgiveness for his failings. This statement was described in the African Rights Report as half-hearted, but there is no reason for us to doubt the Appellant's acknowledgement of his failings and to repent."

28. Paras. 11 and 12 recite factually the Respondent's subsequent career in the church, in Cameroon and in this country, as I have already summarised it. Para. 13, and the first part of para. 14, read as follows:

"13. We find it significant that the Appellant is not now and has never been considered by the Rwandan authorities as a genocide perpetrator. He has never been indicted in respect of any genocide allegations, and his name does not appear on any of the lists of people wanted for genocide crimes. Indeed, the Appellant is looked upon by the Rwandan Government as one of its leading expatriate citizens. The Appellant has been regularly invited by the Rwandan High Commission in the UK to participate in and officiate at the genocide commemoration services held at Southwark Cathedral, and to attend other functions as part of a Rwandan delegation such as the Commonwealth Reception held at Buckingham Palace. Nobody has objected to the Appellant's presence at these functions including the British government. In addition, the Appellant has been invited on two occasions in 2006 and October 2014 to meet with President Paul Kagame during his visits to the UK.

14. The Appellant has lived in the UK since January 2004. He now lives in the UK with his wife and two of his three adult children, one of whom has indefinite leave to remain in the UK in her own right. Another adult child lives in Italy. The documentary evidence produced to us contain many testimonials as to the Appellant's work in the UK as a Priest. … The Appellant's past has never been a secret, and he has never hidden his past from the Respondent. The Appellant was allowed to visit the UK on five occasions between 1995 and 2003, and to live here since January 2004. We find it hard to believe that the Respondent now considers the Appellant to be an undesirable alien ..."

29. It is necessary to spell out the implications of the findings in paras. 10 and 13 which (again) assume a background knowledge of the relevant history. The government of Rwanda has since the second half of 1994 been led by Paul Kagame, who is now President and is a Tutsi. He was the leader of the forces which deposed the interim government and expelled the Interahamwe. His government is in no way associated with the genocide: on the contrary, while anxious to promote reconciliation, it has been active in prosecuting the perpetrators, including seeking the extradition of prominent suspects. That is why the Tribunal attached such significance both to the Respondent's return to Rwanda in August 1994 and his subsequent work there (para. 10) and his continuing good standing with the government as an expatriate (para. 13).

THE UT's REASONS

30. I can take the UT's reasons shortly, since the ultimate question before us is whether the FTT made any error of law. Its essential conclusion (at para. 14) was that the Tribunal's finding about the Respondent's conduct since the genocide were such that "it was amply open to [it] to conclude … that, despite his history, he was at the present time not a person whose character, conduct and associates make it undesirable to grant him indefinite leave".
31. At para. 16 the UT said:

"We appreciate that the result was not a foregone conclusion. A different Tribunal might have reached a different result. We should say in addition that we do not endorse the concept of 'redemption' which the First-tier Tribunal introduced into its discussion. Its doing so did not, however, import any error: its findings of fact and assessment in relation to the claimant's history as a whole were amply sufficient to support the conclusion that it reached. The fact (if it be a fact) that a different Tribunal might have reached a different conclusion is not of itself sufficient to establish error."

THE SUBSEQUENT CASE-LAW

32. Neither the FTT nor the UT made reference to any authority, but there have since been two decisions of this Court which are relevant to the arguments before us.

MS

33. In R (MS (India)) v Secretary of State for the Home Department [2017] EWCA Civ 1190, [2018] 1 WLR 389, this Court considered the lawfulness and effect of a policy (the "Restricted Leave Policy") first published by the Secretary of State in September 2011 which addresses the grant of leave to non-nationals who are excluded from the protection of the Refugee Convention by article 1F but whose removal would breach their Convention rights. The policy has been issued in different forms at different times, but its effect can be sufficiently summarised for present purposes as being that leave should normally only be granted to such "excluded but irremovable" individuals for short periods, and thus that ILR would only be granted exceptionally. The rationale for the policy was expressed in the 2011 version (being the version in force at the time of the Respondent's section 120 notice) as being:

"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."

In the version issued in January 2015 the rationale is re-stated in substantially the same terms. The third element is also described, in the section of the policy dealing with ILR, as "our international obligations to prevent the UK from becoming a safe haven for those who have committed very serious crimes".

34. In MS the Restricted Leave Policy was held to be lawful; in particular the threefold rationale which I have set out above was held to be legitimate. At paras. 115-123 of my judgment (pp. 427-9), with which Gloster and Simon LJJ agreed, I set out some of the considerations relevant to whether ILR should, exceptionally, be granted to an individual who was excluded but irremovable. At para. 120 I considered the relevance of length of residence, pointing out that:

"[E]ven a migrant with 'ordinary' discretionary leave to remain will not normally be eligible for ILR until they have been here for ten years ..., and the considerations underlying the Secretary of State's policy would normally require that a migrant in the excluded category should have to wait much longer than that."

At para. 121 I considered the relevance of the gravity of the conduct which had led to the individual's exclusion, pointing out that, while it would by definition be serious, there were degrees of seriousness. At para. 122 I said:

"A third relevant consideration will be the extent to which the migrant has changed since he or she committed the offences that have led to their exclusion from humanitarian protection. (This could be described as 'rehabilitation', but I prefer to avoid a term which carries baggage from its use in other contexts.) In some cases the conduct will have occurred when they were very young. But, whether that is so or not, good evidence that the migrant have repudiated his or her past conduct and turned their lives round so as to become valuable members of society (to the extent that the restrictions on their leave may have allowed) should weigh in the necessary assessment, particularly where there has been some very positive contribution to society."

Babar

35. In Secretary of State for the Home Department v Babar [2018] EWCA Civ 329 the Respondent was a former officer in the narcotics squad of the Pakistan police who had been refused asylum on the basis that he had been responsible for the serious ill-treatment of suspects but who could not be removed because he would be himself at risk of serious ill-treatment if returned. After he had been in the UK for 14 years he applied for ILR under paragraph 276B and was refused. The FTT allowed his appeal, essentially on the basis that he had led a respectable life in this country and "turned over a new leaf". The UT found an error of law and re-made the decision itself; but it came to the same conclusion for broadly the same reasons.
36. The Secretary of State's appeal to this Court was allowed. Sir Patrick Elias delivered the leading judgment, with which Arden and Singh LJJ agreed. He quoted at some length from my judgment in MS. At para. 20 he said:

"Neither the FTT nor the UT had the benefit of Underhill LJ's judgment when reaching their decision, but it lays down in unequivocal terms the appropriate test to adopt  when applying public interest considerations to rule 276B adjudications in cases of this nature: there must be compelling circumstances to justify a departure from the general rule, namely that for those excluded from the Refugee Convention, the public interest in removal will be so strong that it would make granting indefinite leave to remain inappropriate."

His reasons for allowing the appeal appear at paras. 32-35, as follows:

"32. I do not accept that the commission of these offences against humanity necessarily and inevitably meant that Mr Babar could in no circumstances be granted ILR. For reasons I have set out above, paragraph 276B envisages the possibility that even where such very serious offences have been committed in the past, all the relevant factors should be considered and the circumstances may be sufficiently compelling to justify granting ILR.

33. However, in my judgment the UT judge did not give proper weight to the very powerful justification for denying settlement to those who have committed crimes against humanity. The UK should not be a safe haven for those who have committed such offences, and it would be a breach of the UK's international obligations, and would undermine its international standing, to be seen to give protection to such individuals save in very exceptional circumstances. As para. 3.1.1 of the 2015 Asylum Policy Instruction on Restricted Leave points out, article 1F is intended to protect the integrity of the asylum process and is designed to ensure that individuals should not be allowed to avoid being returned to their country of origin where they may be held accountable for their actions. Upholding the international rule of law requires no less.

34. The weight to be given to this factor is reflected in the fact that only very compelling considerations can outweigh the strong public interest in denying settlement to such persons. In my judgment the judge did not apply that test. It is true that he did refer to the fact that there must be exceptional circumstances and he recognised that granting ILR in a case where the applicant had been excluded from the Refugee Convention would be very rare. But in my judgment he did not fully appreciate that the circumstances must be truly compelling before it could be appropriate to grant ILR. ...

35. I would add that if, contrary to my view, the judge did give appropriate weight to this factor, then his assessment of where the public interest lay was perverse. I reach this conclusion bearing in mind the injunction that this court should be reluctant to set aside decisions of the expert tribunal particularly when making assessments of this nature: see Lady Hale in AH (Sudan) v Secretary of State for the Home Department [2008] 1 AC 678, para. 30. But there was nothing truly exceptional in the considerations which told in Mr Babar's favour and they do not in my view begin to compel the conclusion that ILR should be granted. The fact that an applicant has a good work record, years of blameless residence in the UK, and close knit family relationships is by no means unusual in a case of this nature. If these considerations were sufficient to claim ILR for all those excluded from the Refugee Convention, it would significantly undermine the important public interest in the UK acting in accordance with its international obligations and maintaining its international reputation."

THE APPEAL

37. Although the Secretary of State's grounds of challenge to the decision of the FTT have been put in various ways at different stages, it became clear from Ms Anderson's submissions that her essential point is that the Tribunal failed to appreciate the great weight that has to be given in a case of this kind to the public interest in not allowing the UK to become a safe haven for those who have committed crimes against humanity or cognate offences, and that accordingly they should only exceptionally be given leave to settle here. She relied in particular on para. 33 of the judgment of Sir Patrick Elias in Babar, emphasising the importance of upholding the international rule of law, and she submitted that the error in the tribunals' approach in that case was essentially the same as that made here. The FTT had carried out an ordinary balancing exercise, with no explicit reference to the Secretary of State's "no safe haven" policy. It had been referred to para. 37 of the 2014 decision letter, in which that policy is mentioned (see para. 18 above). The effect of its decision was that the Respondent would become entitled to ILR at the same date as any other person without his (assumed) record: that gave no weight at all to the Secretary of State's policy and the judgment of the public interest which it represented. The point could be characterised as being that the Tribunal had misdirected itself or that its decision was perverse.
38. Ms Anderson is right that the FTT did not refer to the "no safe haven" policy. I am bound to say that I think the omission is venial, because we were told by Mr Pipe, without contradiction, that Mr Wilding made no reference to it in his submissions: certainly the Restricted Leave Policy was not put before either Tribunal. (I pointed out at the permission hearing that it would be useful to know how the Secretary of State's case had been put in the FTT, but no relevant material was produced to us.) However, the Secretary of State did formally rely on the terms of the decision letter, which does, as Ms Anderson said, refer to the underlying policy; and I would be slow to disallow reliance on an important point involving the public interest only because it had not been sufficiently emphasised below. I have no doubt that the FTT's decision would have been differently expressed if it had been made after the decisions in MS and Babar; but the real question is whether it nonetheless carried out substantially the right exercise – or, to put the same thing another way, whether it is clear from its reasoning that it would have reached the same conclusion if it had had the guidance in those cases available to it.
39. The starting-point is that if the matter is viewed simply through the lens of paragraph 276B (ii) (c) I do not believe that the FTT's reasoning can be impugned. The Respondent's (assumed) conduct during the genocide, as summarised at paras. 24-25 above, was indeed shameful even though it is not to be compared with that of those actually involved in the killings. But in deciding whether the grant of ILR twenty years later remains undesirable it is not only legitimate but necessary to take into account what has happened in the intervening years; and that is equally so in the context of the Restricted Leave Policy – see para. 122 of my judgment in MS (para. 34 above). In that regard, the Respondent's record in promoting reconciliation (involving a public acknowledgement of both his own failings and those of the Church) is summarised at para. 10 and 13 of the FTT's Reasons (paras. 27-28 above). Some weight can also be attached to his general record of service in the Church since 1994. The Tribunal only gives a summary of this aspect of the Respondent's record, and in a case of such sensitivity I would have preferred to see rather more detail. But we are an appellate court: the Tribunal heard the Respondent give evidence and saw the full documentary material, and Ms Anderson has not suggested that its summary is inaccurate. On the basis of the picture so summarised this case is very different from Babar, or indeed from MS (and its sister case of MT considered in the same judgment). The Respondent is not relying simply on having led a respectable life since coming to this country: he can rely on the positive acts which he has taken in the interests of reconciliation and to mitigate the consequences of his conduct. I agree with the UT that the case may be near the borderline; but I cannot say that the FTT's conclusion was not open to it.
40. That does not directly address Ms Anderson's point about the need to uphold the international rule of law. But although the FTT makes no express reference to this element, para. 13 of its decision, as discussed at para. 28 above, does in substance directly address it. As it points out, no international institution has shown any interest in pursuing the Respondent as a genocide perpetrator; and he is in positively good standing with the Rwandan government, which is – as I have said – zealous in pursuing such perpetrators. Thus the need not to inhibit the return of individuals to their country of origin where they may be held accountable for their actions, emphasised by Sir Patrick Elias at para. 33 of his judgment in Babar, is simply not a factor here. In the specific circumstances of this case I do not think that explicit reference to the need to prevent this country becoming a safe haven for those falling within the terms of article 1F (a) would have added anything of substance to the exercise which the Tribunal undertook.
41. That disposes of Ms Anderson's principal argument. Another element, however, emerged in her oral submissions. She drew attention to some passages in the 2011 decision letter which could be read as indicating a more active involvement by the Respondent in the killings at Shyogwe than the FTT's summary suggests, and in particular to a sentence saying "It is alleged you distributed weapons to the killers"^[1]. Her argument was that the FTT's failure to refer to this part of the evidence showed that it had not, as it said it would, taken the Secretary of State's case at its highest. Singh LJ sees force in this argument, and that has given me pause; but in the end I do not think I can accept it. Again, I feel obliged to point out that this was not a ground pleaded either initially or in the Amended Grounds; and, if it had been, one or other of the parties might have produced the underlying documents so that we could take a more rounded view. However, I would prefer not to decide the issue on this basis. Even if the point had been pleaded, I do not think that it would be fair to criticise the FTT for not referring to this particular passage in what was a very long and detailed letter. As I have said, its summary of the case against the Respondent – see paras. 24-25 above – proceeded on the basis that he did not participate in the killings at Shyogwe, and that is obviously quite inconsistent with an allegation that he distributed weapons to the killers. The summary was based on the way the case was put to the FTT by Mr Wilding; and Ms Anderson confirmed that she was not submitting that it mis-stated the substance of the case which the Secretary of State was intending to prove.
42. Ms Anderson made one other point, which I can deal with more briefly. She objected to the Tribunal's reference, in para. 9 of the Reasons (see para. 26 above), to the possibility of "redemption". She submitted that this was inappropriately theological terminology. There is nothing in this. The language is arguably slightly inapt, but it is clear enough that the Tribunal simply meant to refer to the point, which is uncontroversial, that in a case where an applicant has been guilty of serious misconduct in the past their subsequent conduct may show that they have changed so as no longer to be fairly regarded as failing to meet the suitability criteria. To be fair to Ms Anderson, by the end of her oral submissions she made it clear that she was not pressing this point.

CONCLUSION

43. I would for those reasons dismiss the Secretary of State's appeal. I have to say that I have not found the case altogether easy. That is partly because of the approach which the FTT took to its fact-finding in this case. But, more generally, Singh LJ rightly emphasises the special gravity of the crime of genocide; and any degree of complicity in the horrors of the Rwandan genocide, such as must be assumed against the Respondent, obviously raises a serious question about whether he is suitable to be granted leave to settle in this country. But it was for the FTT to answer that question, and it is important to bear in mind that it is the specialist tribunal. It gave clear reasons, albeit economically expressed, why the Respondent's record since the genocide – in which he was not an active participant – was such that he should not now be regarded as unsuitable. I can see no error of law in its assessment, and I believe that it must be respected. This is, I repeat, a case very unlike Babar, for the reasons summarised at paras. 10 and 13 of the FTT's decision.

Lord Justice Singh:

44. I am grateful to Underhill LJ for setting out the factual and legal background to this appeal. I have the misfortune to disagree with him and Irwin LJ as to the outcome of this appeal.
45. This case turns on the meaning and application of para. 276B of the Immigration Rules (HC395). In particular it turns on sub-para. (ii), which provides:

"having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence …"

46. This Court had occasion recently to consider the same provision of the Immigration Rules in Tanvir Babar v Secretary of State for the Home Department [2018] EWCA Civ 329, in which the main judgment was given by Sir Patrick Elias (with whom Arden LJ and Singh LJ agreed). At para. 12 Sir Patrick Elias said:

"Paragraph 276B (ii) is poorly drafted; the words 'there are no reasons why' are confusing. There will often be something in the character or conduct of the applicant which, taken on its own, would constitute a reason why it would be undesirable to grant ILR. But it is well established that rules of this nature should be read sensibly, recognising that they are statements of the Secretary of State's administrative policy (see the observations of Lord Brown JSC in Mahad v Entry Clearance Officer [2009] UKSC 16; [2010] 1 WLR 48, para. 10) and the paragraph plainly envisages that there will be cases where, assessing the factors as a whole, it would not be in the public interest to refuse indefinite leave even though some factors may point in favour of refusing it. A recent policy statement from the Secretary of State issued to staff and entitled 'Long Residence' confirms that this is the correct approach. When dealing with the public interest it states:

'You must assess the factors in paragraph 276B(ii) to decide whether a grant of indefinite leave would be against the public interest. You must look at reasons for and against granting indefinite leave using the factors listed and, where necessary, weigh up whether a grant of indefinite leave would be in the public interest.' "

47. At paras. 14-19 Sir Patrick Elias considered the relevant policies adopted by the Secretary of State, which had been subject of this Court's decision in MS (India) v Secretary of State for the Home Department [2017] EWCA Civ 1190; [2018] 1 WLR 389, in which the main judgment was given by Underhill LJ.
48. At para. 20, having noted that neither the FTT nor the UT in that case had had the benefit of Underhill LJ's judgment when reaching their decisions (which is also true in the present case), Sir Patrick Elias continued:

"… It lays down in unequivocal terms the appropriate test to adopt when applying public interest considerations to Rule 276B adjudications in cases of this nature: there must be compelling circumstances to justify a departure from the general rule, namely that for those excluded from the Refugee Convention, the public interest in removal would be so strong that it would make granting indefinite leave to remain inappropriate. …" (emphasis added)

49. As this Court made clear, at para. 32 in Babar, the commission of offences against humanity does not necessarily and inevitably mean that a person can in no circumstances be granted ILR. Para. 276B envisages the possibility that, even where such very serious offences have been committed in the past, all the relevant factors should be considered and the circumstances may be sufficiently compelling to justify granting ILR. However, Sir Patrick Elias continued, at paras. 33-34:

"33. … in my judgment the UT judge did not give proper weight to the very powerful justification for denying settlement to those who have committed crimes against humanity. The UK should not be a safe haven for those who have committed such offences, and it would be a breach of the UK's international obligations, and would undermine its international standing, to be seen to give protection to such individuals save in very exceptional circumstances. As para. 3.1.1 of the 2015 Asylum Policy Instruction on Restricted leave points out, article 1F [of the Refugee Convention] is intended to protect the integrity of the asylum process and is designed to ensure that individuals should not be allowed to avoid being returned to their country of origin where they may be held accountable for their actions. Upholding the international rule of law requires no less.

34. The weight to be given to this factor is reflected in the fact that only very compelling considerations can outweigh the strong public interest in denying settlement to such persons. In my judgment the judge did not apply that test. It is true that he did refer to the fact that there must be exceptional circumstances and he recognised that granting ILR in a case where the applicant had been excluded from the Refugee Convention would be very rare. But in my judgment he did not fully appreciate that the circumstances must be truly compelling before it could be appropriate to grant ILR. In fairness to the judge, he relied upon the discussion by Collins J in the N case without the benefit of the judgment of Underhill LJ in MS which explained that the appropriate test for someone excluded from the Refugee Convention is in fact far more stringent than Collins J's words might suggest. It is perhaps not surprising that the UT judge failed to give the powerful weight to this factor which the conduct of the applicant required." (Emphasis added)

50. It is important to emphasise that, although the UK's international obligations in this context are reflected in the Secretary of State's policies, they are not dependent on those policies. The "public interest" to which Rule 276B refers does not depend only on the views of the Secretary of State. Although those views are entitled to respect, ultimately the guardian of the public interest is the Court (or Tribunal) itself. I would emphasise also that the present case concerns, as Babar did not, the crime of genocide, which was created by international law after the horrors of World War II and is one of the gravest crimes known to international law.
51. In my view, the FTT (and the UT) failed to apply the correct legal test, as it has now been authoritatively set out by this Court. It may be understandable why they did so, both because they did not have the benefit of the two recent judgments of this Court in MS (India) and Babar and because of the way the case was presented to them at the time. Nevertheless, in my view, this Court must now correct the error of law into which the FTT fell.
52. It might be said that, even if the FTT did fail to direct itself correctly according to law, the outcome would have been no different, given the strong findings which it made, in particular at paras. 10-13 of its determination. It could be said that, unlike the facts of relatively common cases such as Babar itself, the facts of this case were highly unusual. I recognise that.
53. Nevertheless, I am not confident that, if the FTT had applied the correct legal test, the outcome would have been the same. This is because, in my view, the second error into which the FTT fell was that it failed to make all relevant findings of fact. It decided (of its own accord) to proceed on the basis of an assumption, taking the Secretary of State's case "at it highest which means by assuming the allegations of the Respondent to be factually correct": see para. 5 of its determination.
54. The FTT then summarised what it understood the Secretary of State's case to be at paras. 6-7 as follows:

"6. The Respondent's case as put by Mr Wilding at the hearing is that the Appellant is complicit in the genocide owing to his position in the Anglican church in Rwanda and his actions or lack of them in the Kigali and Shyogwe area in April to June 1994. It is common ground that during that period the interim Government of Rwanda instigated and organised the mass killings of Tutsis. As recorded in the African Rights Report at pages 129 to 152 of Document C of the Respondent's bundle, at the height of the killings there was no attempt by the Anglican or other churches to intervene or even condemn. Indeed, some bishops had supported the genocide and even participated in the killings, although this is not an allegation made against the Appellant. In any event, senior Anglican figures had close connections with the interim Government.

7. The African Rights Report states that the Appellant had many meetings with the Interahamwe and members of the interim Government in the Shyogwe area at the relevant time. After the Appellant took control of his parish following the departure of Bishop Musabyimana, he arranged for Tutsis to be excluded from refuge. He did not use his frequent journeys to Kigali to assist Tutsis, and refused to help those in hiding such as Esperance Umurungi and her husband."

55. The difficulty is that it is not at all clear what the FTT in fact understood to be the Secretary of State's case "at its highest". I am well aware that many of the allegations were and remain contested by the Respondent. However, on one reading of the documents which are before this Court, the Secretary of State's case, was that:

"… In summary, there are serious reasons for considering that you were directly involved in the killings at Shyogwe, including the requests for weapons and ensuring Tutsis were excluded from the protection of the parish": see para. J(a) in the decision letter refusing asylum dated 10 March 2011.^[2]

56. Para. J (b) went on, in reliance on the African Rights Report, to state that witness testimony put the Respondent at meetings with relevant people, including the interim Government of Rwanda at the time, and suggested that he had conspired with them: "It is alleged you distributed weapons to the killers". Furthermore, elsewhere in the decision letter of 10 March 2011 there was reference to various activities in which the Respondent was alleged to have taken part after the genocide had taken place, including "deliberate involvement in the campaign of mis-information": see para. I (f).
57. In my view, the only way in which this case can satisfactorily be determined, in accordance with the correct legal test, is for it to be remitted back to the FTT so that it can make all relevant findings of fact properly on evidence. Otherwise, there is a real danger that the FTT never fully appreciated the true gravity of what the Respondent may (and I stress may) have done during the genocide in Rwanda in the early 1990s. It is only after a thorough understanding of the true factual position on that side of the balance that the FTT could, properly directing itself as to the law, weigh the other factors in the Respondent's favour, which it summarised at paras. 10-13 of its determination.
58. For the reasons I have given, I would allow the Secretary of State's appeal in this case and remit the matter to the FTT.

Lord Justice Irwin :

59. I have had the advantage of reading in draft the judgments of both Underhill LJ and Singh LJ. I am in agreement with the conclusion of Underhill LJ and would dismiss the appeal. Because of the importance of the issues in the case, and in the light of the disagreement, I will summarize my reasons very briefly.
60. I agree with Singh LJ that the international obligations of the UK bearing on the grant of residence to those who have been involved in genocide or crimes against humanity arise from international law, and in particular from Article 1Fa of the United Nations Charter. Those obligations are of prime importance. The Secretary of State's policy is a consequence, not the source, of those obligations.
61. All are agreed that the commission of such offences does not inevitably mean there can be no grant of ILR, although there will need to be "compelling" or "exceptional" reasons for such a grant: see the judgment of Underhill LJ in MS, and of Sir Patrick Elias in Babar.
62. I agree with Underhill LJ that such an exercise must involve a consideration of what the applicant for ILR did, and of what he or she has done since. All the circumstances will be borne in mind.
63. Singh LJ is concerned that the Tribunal made assumptions as to what this Appellant did, and did not make findings. Moreover, he is concerned whether the assumption by the Tribunal of the Secretary of State's case "at its highest" incorporated all the allegations which might be derived from the material available.
64. I agree with Singh LJ thus far: it was in my view undesirable to make assumptions rather than reach conclusions as to the conduct to be ascribed to the Appellant, particularly without prior announcement to the parties. For the sake of clarity and certainty it would have been a much preferable course to make findings as the basis on which the judgment proceeded.
65. However, I agree with Underhill LJ that, on the facts of this case, the approach taken was not fatal to the decision. As he has explained (in paragraphs 25 and 41 above) the Secretary of State did not in the end advance the case that the Appellant participated in the killings at Shyogwe, even by the supply of weapons. That is important in my view. Firstly, there was sufficient clarity as to the basis of the decision, although I repeat that explicit findings would be preferable. Secondly, it was highly material that the Appellant cannot be taken to have participated in killings. Against that background, I cannot disagree with the conclusion that this was an exceptional or compelling case. If the current Rwandan government sees the Appellant not as a perpetrator of genocide but as a man who has repented of his cowardice, as a peacemaker, and as a fit person to be included in official Rwandan events, then it does not seem to me wrong to conclude that his case is "exceptional" or "compelling". This is not merely a case of good or lawful behaviour over a period of residence. Were it so, it seems to me the decision would have been very likely to go the other way.

Note 1    That does not say who made the allegation. The two previous sentences refer to other information derived from the African Rights report and from unspecified “witness testimony”; but it is not clear whether either or both is meant to be the source for what is said about distributing weapons. We were not, as I have said, shown either the UKBA 2010 report or the materials on which it was based.     [Back]

Note 2    The decision letter of 10 March 2011 was based on the UK Border Agency’s Special Cases Directorate Report on War Crimes Cases Research and Analysis dated July 2010: see para. 15 of the decision letter.    [Back]