England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT (QUEEN'S BENCH DIVISION)
Collins J

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/11/2018

Underhill LJ:

INTRODUCTION

1. The Respondent to this appeal, who is the Claimant in the underlying proceedings, is an Algerian national, now aged 49. He came to this country in August 1995 and claimed asylum, which was refused in September 1997. His immigration history thereafter is complicated, but for the purposes of the issues before us the only elements that I need mention prior to the making of the application which gives rise to these proceedings are as follows:

(a) On 18 December 2001 the Secretary of State certified, pursuant to section 21 of the Anti-Terrorism, Crime and Security Act 2001, that he believed that the Claimant was a risk to national security and that he suspected that he was a terrorist; he made an order for his deportation.

(b) On 29 October 2003 the Special Immigration Appeals Commission ("SIAC"), chaired by Collins J, dismissed the Claimant's appeal against the making of the certificate and against deportation. It expressly found that he had actively assisted terrorists linked to Al Qaeda and was a risk to national security.

(c) On 8 February 2007 SIAC, chaired by Stanley Burnton J, dismissed an appeal against a further deportation order. It noted that the Claimant had not challenged the 2003 finding but it nevertheless reviewed the evidence and expressly accepted that the finding had been correct.

(d) Between 2009 and 2013 there were a series of hearings in SIAC, all chaired by Mitting J. In his judgments, most particularly in 2013, he held that the Claimant had for many years had no involvement in terrorist activities.

(e) The Secretary of State's attempts to deport the Claimant were finally stymied, after considerable litigation involving not only him but a number of other Algerians, by the decision of this Court in BB v Secretary of State for the Home Department [2013] EWCA Civ 9, and the decisions of SIAC of 25 January 2013 and 18 April 2016, that, in the absence of assurances which it is accepted will not be forthcoming in the foreseeable future, their return to Algeria would be in breach of their rights under article 3 of the European Convention on Human Rights. He is thus effectively irremovable.

(f) In June 2013 the Claimant was granted restricted leave to remain, subject to conditions, for a period of six months. He was granted a further such period, with the same conditions, in February 2015. The decision was justified by reference to the Secretary of State's Restricted Leave Policy ("the RLP"). It was challenged by judicial review on the basis that as it then stood the RLP by its terms applied only to applicants who had been excluded from asylum under article 1F of the Refugee Convention, which the Claimant had not. The Secretary of State accepted that that was so and withdrew the decision.

2. In 1999 the Claimant married a French national. They have four children. As a result of childhood polio he has for many years been confined to a wheelchair. He also suffers from serious mental ill-health: he has in the past been diagnosed as suffering from a major depressive disorder with psychotic symptoms.
3. On 19 August 2015, pending the outcome of his challenge to the February decision, the Claimant applied for further leave to remain. His primary position was that he should be granted indefinite leave to remain ("ILR"), but in the alternative he sought unconditional discretionary leave for a period of at least two and a half years. On 11 December 2015 the Secretary of State granted him six months' leave outside the Rules (so-called "LOTR"), with conditions, but as a result of a blunder which has never been explained or apologised for the decision referred to a criminal offence which the Claimant was mistakenly said to have committed; and the decision had to be withdrawn.
4. On 8 January 2016 the Secretary of State made the decision which gives rise to the present proceedings, namely to grant LOTR for six months, subject to the following conditions (in summary):

to reside at his current address and seek the Secretary of State's consent to any change; and "to seek prior written consent if he seeks to spend more than three consecutive nights, or 10 nights in any rolling six month period, away from his residence";

not to be employed or be engaged in any business without the Secretary of State's consent;

not to enrol on any course of study without the Secretary of State's consent;

to report monthly to an immigration reporting centre.

5. On 7 April 2016 the Claimant commenced judicial review proceedings in the High Court challenging the lawfulness of the decision of 8 January.
6. The Claimant's claim was heard by Collins J on 15 and 16 November 2016. It was heard the week before a separate claim also concerning a grant of limited leave to a claimant with a history of involvement in terrorism – MS v Secretary of State for the Home Department (generally now known as "MS2", to distinguish it from separate Upper Tribunal proceedings involving the same claimant). Collins J handed down judgment in MS2 on 9 December and in the present case on 16 December. In both cases he held that the Secretary of State's decision was unlawful: much of his reasoning was common to both and his judgment in this case cross-refers to his judgment in MS2. His order in this case (not finalised until 12 January 2017), reads, so far as material, as follows:

"(1) The decision of the defendant dated 8 January 2016 to be quashed.

(2) The defendant must reconsider the application by the claimant for indefinite leave to remain in accordance with the judgment herein.

(3) It is declared that the condition requiring the consent of the defendant if the claimant wished to leave his residence for specified periods is unlawful."

7. The Secretary of State appealed against Collins J's decision in both this case and MS2. The appeal in MS2 was allowed: see R (MS (India)) v Secretary of State for the Home Department [2017] EWCA Civ 1190, [2018] 1 WLR 389. The present appeal was stayed to await the outcome in MS2.
8. This is the Secretary of State's appeal against Collins J's decision, though there is also a Respondent's Notice from the Claimant seeking to uphold it on different grounds. The Secretary of State has been represented before us by Ms Julie Anderson. The Claimant has been represented by Ms Charlotte Kilroy. Both counsel also appeared below.

SUBSEQUENT DEVELOPMENTS

9. Even apart from the allowing of the appeal in MS2, events have moved on since Collins J's decision.
10. The six months' leave granted to the Claimant by the decision of 8 January 2016 expired on 8 July. On 7 July he made an application for further leave in broadly, though not entirely, the same terms as his application of 19 August 2015. The Secretary of State did not respond for over eighteen months, and during that interval the RLP was revised, among other things so as to cover not only individuals excluded under article 1F but those who would have been excluded if they had made a protection claim (thus filling the lacuna referred to at para. 1 (f) above).
11. On 23 March 2018 the Secretary of State made a decision granting the Claimant two years' restricted leave, subject to conditions. The conditions cover the same heads as those in the previous leave but they are not identical. In particular, he is required only to notify the Secretary of State of any change of address, rather than to seek his consent; the condition requiring him to seek consent if he was going to be away from home for more than the specified periods was abandoned; and the obligation to report is now only every three months instead of monthly. The Claimant has commenced judicial review proceedings in the Upper Tribunal in respect of that decision, but they have been stayed pending the outcome of this appeal.
12. The fact that a further decision has now been made and challenged means that, even if Collins J was right to hold that the original decision was flawed and fell to be quashed, as per paragraph (1) of his order, it is pointless to order that the decision now be re-taken, as per paragraph (2). But neither party suggested that it followed that the present appeal did not have to be decided, and there was wide-ranging argument before us. However, since the lawfulness of the decision of 8 January 2016 as such is now of historic interest only I do not believe that it is necessary to consider the full range of the points argued before us. While I think we are obliged to decide whether the decision of 8 January 2016 fell to be quashed, I do not propose to go beyond what is strictly necessary for that purpose except where doing so may be of assistance to the Upper Tribunal in the pending proceedings. In that regard, however, I should also make it plain that I am not to be taken to be expressing any view on the lawfulness of that decision, which was not in issue before us. Although there are inevitably areas of overlap, it is a different decision, taken over two years after the decision with which we are concerned and under the revised RLP, and we were not addressed directly about it.

THE APPLICABLE LAW

13. It is unnecessary for the purpose of this appeal that I set out the underlying statutory provisions or the full history and terms of the RLP and its predecessors. I performed that exercise in my judgment in MS2, to which reference can be made if necessary: see paras. 8-47 (pp. 396-407). I need only refer to two points.
14. Conditions. The Secretary of State's power to impose conditions on the grant of leave to remain derives from section 3 (3) of the Immigration Act 1971. It is important to note that the power applies only to the grant of limited leave to remain.
15. The RLP. In bare summary, the Secretary of State's policy is that, for reasons which are articulated in the RLP, in the case of migrants who are "excluded but irremovable", only short periods of restricted leave should be granted, "to which tight restrictive conditions may be attached according to the particular circumstances of each case", and that ILR should be granted only "in exceptional circumstances". In MS2 at first instance Collins J held that on his construction of the RLP the Secretary of State was obliged, absent any special reason to the contrary, to grant ILR after an applicant who was excluded but irremovable had been in the UK for ten years. In this Court we disapproved that construction: see paras. 37-42 of my judgment (pp. 405-7). We accepted that in considering what constituted exceptional circumstances justifying the grant of ILR the duration of the applicant's residence was potentially relevant – see para. 120 (pp. 427-8) – but we held that there was no ten-year benchmark and that a much longer period would be required before this became a potentially decisive consideration. We held that such a policy was lawful and involved no breach of article 8 of the European Convention of Human Rights. We gave some guidance as to the other factors relevant to assessing what constituted exceptional circumstances: see paras. 115-124 of my judgment (pp. 421-6).

THE DECISION LETTER

16. Given the limited nature of the issues which it is necessary for us to decide, I need not attempt a comprehensive summary of the terms of the Secretary of State's decision letter. In particular, I need not set out the details of the reasoning as regards the refusal of ILR or the grant of leave for a period limited to six months. The Secretary of State's essential point is that she is committed to overcoming the various legal barriers to the Claimant's deportation, and that in those circumstances the grant of any long period of leave was inappropriate. I should, however, identify the basis on which she justified the imposition of the conditions summarised at para. 4 above. I take them in turn.
17. Residence. Para. 77 of the decision letter starts by saying that the residence condition ensures that the Claimant can be located for the purpose of his deportation being enforced as soon as it becomes possible. It is tacitly admitted that that need would be sufficiently satisfied by a requirement that he notify her of his current address and any subsequent change; but the paragraph goes on to say that the requirement of the Secretary of State's consent to any change of address is appropriate "in order to allow full consideration of the known risk factors", including not only any risk that he might pose to individuals in any community to which he moved (apparently, though this is not spelt out, because of his past terrorist associations) but also any risk that there might be to him.
18. Employment. At para. 78 two reasons are given for this condition – (a) to ensure that he does not enter into any inappropriate employment given that his presence in the UK is not conducive to the public good (sc. because of his past involvement in terrorism); and (b) to send out a message that individuals with his history "cannot establish a new life in the United Kingdom" and that the intention remains to remove him as soon as it becomes possible.
19. Study. I will set out para. 79 in full. It reads:

"The purpose of the study condition is that it again underlines the temporary nature of the leave. It reinforces the view that your client remains liable to deportation and should not be establishing further roots in the United Kingdom. It also reduces pressure on public finances and, for privately funded courses, ensures that your client does not occupy course spaces that would otherwise be taken up by a British Citizen or lawful migrants whose deportation is not conducive to the public good and prevented only by a temporary human rights barrier. Furthermore, the condition ensures that your client does not undertake any course of study that would be inappropriate such as any courses of study that would place him in a position of trust or influence in relation to other students."

20. Reporting. Para. 80 reads:

"The purpose of the reporting condition is again to ensure that your client can be located when it becomes possible to effect his deportation, in order to satisfy the Secretary of State that he is not absconded, and ensure that your client notifies the Secretary of State of any change in his circumstances at the earliest opportunity."

THE DECISION OF COLLINS J

21. The first part of Collins J's judgment set out the Claimant's immigration history. I have already given a sufficient summary above.
22. At para. 25 Collins J sets out the evidence about the effect on the Claimant of the continuing uncertainty about his longer-term immigration status, referring in particular to his evidence, supported by that of a psychiatrist, Dr Deeley, that the imposition of repeated periods of short-term leave, with restrictive conditions (in particular the condition of monthly reporting), badly affected his mental health. He had earlier observed (see para. 15) that "the adverse effect on the claimant's health, whether or not it is capable of constituting a breach of his human rights, is a relevant consideration in deciding whether any particular conditions are needed, assuming a power to impose them", noting that it would be necessary to consider that point later.
23. At para. 26 Collins J sets out and criticises the passage in the decision letter which refers to the evidence of the effect on the Claimant's mental health of the imposition of short periods of leave with conditions. He makes an explicit finding that "the adverse effect of the defendant's decisions on the claimant and his wife and family has not been properly taken into account in the decision letter".
24. What appears to be Collins J's dispositive reasoning is at paras. 27-29 of his judgment. These read:

"27. I have considered in MS the approach that should be adopted to considering the grant of ILR or extended limited leave for a person whose presence here is properly regarded as not conducive to the public good. Although he is not excluded by Article 1F, there can be no doubt that the claimant's activities which led to his detention under the 2001 Act and being made subject to a control order were such as would have justified his exclusion. Ms Kilroy submitted that there was a need for cogent evidence against an individual to justify a 1F exclusion and that did not exist in this case. While obviously I cannot recall now what was before me in closed hearing when I dealt with the claimant's appeal in SIAC in 2003, I concluded that the tribunal had no doubt that he had been involved in terrorist activities. Thus if the grant of limited leave and conditions was lawful without any specific policy or parliamentary approval, to equate the claimant with one subject to the RLR policy was reasonable.

28. I have recounted the history of the way in which the claimant has been dealt with and the salient facts of his case in some detail because, whether or not he has properly been treated as if he were subject to the RLR policy, the question is whether he now should be granted ILR or at least a substantial period of limited leave. I have in MS dealt with the approach that in my view should be adopted to consideration of ILR in cases such as this. Where there is a proper view reached that the individual is one whose presence in the UK remains and will continue to remain not conducive to the public good, all will depend on whether the time has been reached when it is unreasonable to expect removal in a reasonable time and the individual has been here without any misbehaviour for at least 10 years. It can then be considered that he has put his past behind him. In this case, there is no suggestion that he remains a security risk: so much was made clear by Mitting J in 2012. Equally, there is no evidence of any risk that he will abscond. Mitting J as long ago as 2009 considered that the risk of absconding was 'as close to nil as one could get without actually arriving at nil'. Thus the use of the reason that it will avoid absconding to justify the reporting condition ignores the reality that there is no risk of absconding, nor has there been for over 7 years.

29. The employment condition is said to be justified in order to ensure that the claimant does not enter into inappropriate employment given that his presence is not conducive to the public good. He might abuse a position of trust or influence and he should not be employed in a position which required an enhanced CRB check. This ignores the clear finding of SIAC that he is no longer a threat. The study condition is said to reinforce the view that he remains liable to deportation and should not be establishing further roots here. That relates to his private life which, for the same reasons as I set out in MS, is of marginal relevance in this case. The claimant will rely on his family life rights in the highly improbable eventuality that the Secretary of State will be able to remove him. I have no doubt that there is no justification for the imposition of any of the conditions. He is not a risk to security, there is no reasonable possibility of him seeking to radicalise or influence others to commit unlawful acts, there is no risk that he may abscond and he already has established roots there through his marriage and family life. Thus he is in much the same position as MS and I do not need to repeat the legal basis on which I decided MS's case."

25. I need to identify several different strands in that reasoning:

(1) Collins J proceeds on the basis that it was reasonable of the Secretary of State to treat the Claimant's case substantially as if the RLP applied to it: see para. 27. Ms Kilroy had argued that that was not a proper approach, both because it was wrong in principle and because the Claimant's case could not fairly be treated as analogous to that of a person excluded under article 1 (f). As to the former point, Collins J returns to address it at paras. 30-32 of his judgment: see para. 27 below. As to the latter, he rejects it for the reasons given in para. 27 itself, namely that SIAC's findings in 2003 would have justified the Claimant's exclusion from rights under the Refugee Convention had any application been made.

(2) Taking that approach, he applies the construction of the RLR that he had adopted in MS2 – that is, in short, that other things being equal a migrant in the excluded but irremovable category should be granted ILR after ten years' residence: see in particular the middle of para. 28.

(3) In the second half of para. 28 and in para. 29 he considers whether any of the conditions imposed by the Secretary of State were necessary and concludes that they were not. It should be noted that he was not doing so in the context of a decision that limited leave should be granted and in order to decide whether this or that condition was lawful. Rather, as I understand it, he had in mind the fact that if there were a good reason why conditions were needed a grant of ILR would not be appropriate, notwithstanding the passage of ten years, since conditions can only be attached to a grant of limited leave: see para. 14 above. The consideration of whether conditions were necessary is thus to some extent a proxy for a consideration of whether there were any particular reasons why the Claimant should not be granted the ILR to which (on his reading of the RLP) he would otherwise be entitled.

(4) That being his dispositive reasoning, the logic of his consequent order that the Secretary of State should reconsider the application "in accordance with this judgment" was that the Claimant should be granted ILR; and the order is tantamount, while respecting constitutional propriety, to an order to that effect.

26. Collins J does not at any point in that reasoning appear to rely on article 8; and indeed it will be noted that in para. 29 he says that "for the same reasons as I set out in MS"^[1] the Claimant's private life "is of marginal relevance in this case". He had, however, as we have seen, referred to article 8 in the context of the impact of the imposition of conditions on the Claimant's mental health and criticised the Secretary of State for failing properly to take that factor into account, and there is also a clear, albeit implicit, reference to it in para. 33 which I set out below. Although it is far from clear, my reading of the reasoning overall is that Collins J's primary decision was that the decision to withhold ILR was unlawful because it was contrary to the RLP as he construed it; but that he also intended to hold that if that had not been the case the decision to grant short periods of restricted leave with conditions constituted a disproportionate breach of the Claimant's article 8 rights because of the effect on his mental health. (I am inclined to think that the logic of the latter alternative, as developed by Collins J, is that the Claimant should have been granted ILR; but it could be deployed in support of a less ambitious argument that he should at least have been granted leave for a substantially longer period, and with no, or less restrictive, conditions, which was the alternative basis of his original application.) The parties, however, proceeded on the basis that Collins J had not ultimately made any decision based on article 8; and for reasons that will appear it does not in the end matter if they are right about that.
27. At paras. 30-32, as I have said, Collins J considered Ms Kilroy's submission that it was unlawful in principle for the Secretary of State to apply the RLP in the Claimant's case since he did not fall within its terms. She relied on the well-known observations of Lord Dyson in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245, about the need for a policy relating to detention to be transparently identified through formulated policy statements. Collins J did not regard those observations as applicable to the very different kind of decision made in the present case, and he concluded, at para. 32, that he was "not persuaded that the conditions, if justified, could not have been imposed without a policy".
28. Para. 33 of the judgment, which appears to be intended by way of an overall summary, reads:

"There has been singularly poor administration in the treatment of the claimant. That in itself does not mean that he has been or is being treated unlawfully. However, I am satisfied as is shown by the history that there is now no reasonable need for limited leave. The possibility of removal is remote in the extreme. While I am not persuaded that the effect of maintaining short leave and conditions is to breach Article 3 of the ECHR, there can be no question that that is having an adverse effect on his mental health. Thus it must be clearly justified if it is to be regarded as reasonable. Overall, I have no doubt that the time has come when to maintain limited leave because of the supposed need for conditions is unreasonable."

As noted above, the reference to having to "justify" the maintenance of short leave with conditions appears to be a reference to article 8.

THE GROUNDS OF APPEAL

GROUNDS 1-3: ILR

29. The Secretary of State's grounds of appeal were originally pleaded prior to the decision of this Court in MS2, and the original grounds 1 and 2 advanced elaborate arguments challenging various elements in Collins J's reasoning about the approach to be taken to the grant of ILR in his case. But following the decision in MS2 the grounds were amended to add a new ground 1, which is straightforwardly that he erred in law by following his own decision in MS2, which has since been overturned, and adopting a ten-year benchmark for the grant of ILR.
30. In my view that ground is plainly well-founded. The existence, as held in MS2, of a ten-year benchmark is central to the reasoning at para. 28 of his judgment. Ms Kilroy sought to argue that Collins J's reasoning was not solely based on that point. That is true in the sense that he made other criticisms of the reasoning in the decision letter, some of which I will have to consider below, but that is not an answer to this ground of appeal. The effect of paragraph (2) of the order of 12 January 2017 is that the Secretary of State is ordered to reconsider the original decision "in accordance with" what has now been held to be an erroneous view of the law.
31. Although the original grounds 1 and 2 (re-numbered 2 and 3) were not abandoned, I see no advantage in considering them here. It will be sufficient for the purpose of the pending challenge to the decision of 23 March 2018 for the Upper Tribunal to know that the correct approach to be followed, as far as the applicable policy is concerned, is now established by the decision of this Court in MS2.^[2] The Tribunal may wish to consider also the approach taken to the facts of MS's own case, at paras. 136-9 (p. 434); but it is important always to remember that each case must turn on its own facts and the Claimant's case and MS's are not identical.

GROUND 4: CONDITIONS

32. There was in the original grounds of appeal a ground 3, now re-pleaded and numbered ground 4. This challenges Collins J's finding at para. 29 of his judgment that there was no justification for the imposition of any of the conditions imposed by the decision of 8 January 2016. Since some at least of the points raised may be relevant to the conditions imposed by the decision of 23 March 2018, I think we should consider the Secretary of State's challenge to this aspect of the decision.
33. Ground 4 reads:

"The learned Judge erred by finding that no form of condition could be applied to any grant of leave to remain to G. In particular, he erred:

(i) by applying the premise that it was necessary for the Secretary of State to prove that there was a current risk of absconding as a precondition to application of any condition under s 3 concerning residence and reporting; and

(ii) by assuming that G had an automatic right of access to benefit from the UK's facilities for employment, education and public funds such that unlimited access must be provided unless the Secretary of State could prove a case-specific detriment to the UK by allowing such access; and

(iii) by adopting a flawed approach to the facts relevant to his consideration of conditions including by assuming on the limited materials available to the learned Judge that 'there was no reasonable possibility of him [G] seeking to radicalise or influence others to commit unlawful acts'."

34. In her skeleton argument and oral submissions Ms Anderson did not seek directly to develop those points, but she referred to Kardi v Secretary of State for the Home Department [2014] EWCA Civ 934, in which this Court held that it was in principle justifiable for the Secretary of State to seek to impose "roadblocks" to the integration of applicants who were excluded but irremovable in order to reduce the risk that if the opportunity to remove them arose in the future they would have become so settled that it would be disproportionate to remove them (see para. 29 of the judgment of Richards LJ). The effect of Kardi was also considered by this Court in MS2: see paras. 43-45, 118 and 120 of my judgment (pp. 407-9 and 427-8). Ms Anderson submitted, to quote from her speaking note, that:

"Collins J misdirected himself as to the applicability of the Kardi approach in finding it had no application to those who were already established in the UK and in finding the current conditions could only be justified by a current risk of absconding, national security threat or other current basis so ignoring the justification in principle in Kardi for not giving unconditional leave."

35. I am not sure how the point based on Kardi relates to the three points pleaded in ground 4. I will consider it first and then return to the pleading.
36. In Kardi the claimant had been in the country for twelve years, but there had been a real prospect of his removal throughout that period, so that his stay "was imbued with a sense of impermanence", and there was a possibility that removal might yet be effected. In those circumstances Richards LJ held that there was "still a value in laying down road blocks to settlement and to the further building up of private life" (para. 31). But he went on at para. 32 to accept that

"[t]here 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"

saying only that that point had not been reached at the date of the decision under challenge. This Court picked up on the latter point in MS2, where I observed, at para. 118 of my judgment (p. 427 C-D), that:

"It gets more difficult in the kind of case that is at issue in these appeals – that is, where there is no foreseeable likelihood of removal becoming possible; where the migrant poses no risk to national security; and where there is no risk of repetition of the kind of conduct which has led to their exclusion – and where indeed he or she has made a settled and respectable life in this country. In such a case the policy of granting only short successive periods of discretionary leave, in order to create (in Richards LJ's language in Kardi) 'road blocks to settlement and to the further building up of private life' will have failed to achieve its object."

37. Collins J did not refer to Kardi in his judgment in this case. I think that that is simply because, on his primary reasoning – namely that on the true construction of the RLP the Claimant was entitled to ILR – it was not relevant: he was not engaged in the exercise of deciding whether the grant of a particular period of limited leave and/or the imposition of a particular set of conditions could be justified. That being so, I do not believe that any point based on Kardi, even if it had been pleaded, adds anything to the point made by ground 1.
38. It is fair to say, however, that at para. 22 of his judgment in MS2 Collins J did make some observations which suggest that he was sceptical about parts of Richards LJ's reasoning in Kardi. It may well be that if he had directly considered the point in the present case he would indeed have held that, the Claimant having been in the UK for 23 years and with no foreseeable prospect of removal, the time had come when the roadblocks approach no longer had a role to play. But since he did not do so it is not necessary for us to consider whether he would have been right. It will be for the Upper Tribunal hearing the challenge to the decision of 23 March 2018 to decide whether in the circumstances of the Claimant's case, and in the absence of any other justification, the roadblocks approach is capable of justifying either the decision to grant only two years' leave, rather than ILR, or any of the conditions imposed.
39. I turn to the other justifications advanced for the conditions imposed by the Secretary of State. Collins J gave reasons for rejecting those justifications: see paras. 28 and 29 of his judgment. Those reasons are (partially) challenged by the three points pleaded under ground 4, but Ms Anderson did not amplify those points either in her skeleton argument or in her oral submissions: her focus was exclusively on the Kardi point. In those circumstances I can take them briefly.
40. As to (i), the first point to note is that the Secretary of State does not seek to challenge Collins J's finding that there was no risk of the Claimant absconding, notwithstanding that that risk was expressly referred to in para. 80 of the decision letter, and implicitly also in para. 77 (see paras. 17 and 20 above). Given his circumstances – including but not limited to the fact that he is confined to a wheelchair – that seems realistic. Rather, what is said (or in any event implied) is that other justifications for these conditions were advanced in the decision letter. I accept that that is so; but I do not accept that Collins J proceeded on the basis that it was the only justification. In so far as other justifications were advanced he explains why he rejected them, and his conclusions are not challenged (at least by this ground).
41. As to (ii), it is hardly a fair characterisation of Collins J's reasoning to say that he proceeded on the basis that the Claimant was entitled to "unlimited access" to the benefits of "employment, education and public funds" unless some case-specific detriment to the UK were shown. All that he was saying was that there was no requirement for a study or employment condition such as to justify the withholding of ILR in circumstances where he believed that it ought otherwise to be granted. No specific reason is pleaded why that assessment was wrong. (I should add that I rather doubt how significant the employment and study conditions are in practice, given the Claimant's state of health.)
42. As to (iii), we were not taken through "the limited materials available to the … Judge". In those circumstances it is impossible for us to say that they did not justify his conclusion.
43. I do not therefore believe that this ground of appeal is established. That does not mean that, to the extent that the Upper Tribunal in the pending proceedings is concerned with the justification for the conditions imposed by the decision of 23 March 2018, it will be bound to reach the same conclusion as Collins J. It will have to base its decision on the particular justifications advanced for the conditions there imposed, the nature of the challenge to them and any evidence adduced.

Overview

44. That is all that it is necessary to say about the Secretary of State's grounds of appeal. Ground 1 is established; and it follows that, subject to the points raised by the Respondent's Notice, Collins J was wrong by paragraph (1) of his order to quash the decision of 8 January 2016. I find it unnecessary to say anything about grounds 2 and 3. I would reject ground 4.

THE RESPONDENT'S NOTICE

45. The Claimant's Amended Respondent's Notice seeks to uphold Collins J's judgment on what are pleaded as four additional grounds, but which fall under two broad headings. I take them in turn.

(1) Article 8

46. The Claimant pleads, as ground (1) in his Amended Respondent's Notice:

"The SSHD's decision to grant G six months LOTR with conditions was unlawful because it constituted a disproportionate interference with his right to private life under Article 8 ECHR which was furthermore not in accordance with the law. …"

Formally, I think, that is advanced not as an alternative basis on which Collins J in fact decided the case but as an alternative basis on which he should have decided it. It may be debatable whether the former way of putting it would not be open to the Claimant: see para. 26 above. But it is unnecessary to resolve the point.

47. In my view Collins J's order quashing the decision of 8 January 2016 can indeed be upheld on "article 8 grounds", but it is unnecessary and undesirable to go beyond a very limited and specific point. He held in terms at para. 26 of his judgment (see para. 23 above) that the Secretary of State had failed properly to take into account the evidence of the adverse effect on the Claimant's mental health of the repeated grant of short periods of leave, with (restrictive) conditions; and he reverted to that point, as we have seen, in the summary at para. 33. There is no challenge to that conclusion in the Secretary of State's grounds of appeal. On ordinary principles it would follow that the decision should be quashed, and would have to be re-taken, unless the error was immaterial. I do not believe that to be the case here. I do not need to, and do not, say that if the Secretary of State had taken the evidence properly into account she would have granted ILR; but it is clearly arguable that she might have reached a different decision about the length of the period of leave granted and the restrictiveness of the conditions, as was indeed done in the decision of 23 March 2018.
48. Ms Kilroy's submissions as regards article 8 went much wider than that. But we need go no further than is necessary to decide whether there are alternative grounds for upholding paragraph (1) of Collins J's order. The only reason for doing so would be in order to decide any points of principle that will be relevant to the pending proceedings. I do not believe that there are any such points, but in deference to Ms Kilroy's submissions I should briefly explain why.
49. The pleaded ground asserts (a) that the grant of only six months' leave with conditions was a disproportionate interference with the Claimant's private life and (b) that it was not in accordance with law. Submission (b) depends on the "Lumba point" which I consider separately below. As for (a), I did not understand it to be being argued that it was a breach of the Claimant's article 8 rights to grant him anything less than ILR: I do not say that such an argument is impossible in principle, but it might be regarded as ambitious in the light of para. 124 of my judgment in MS2 (pp. 429-430). Rather, the argument appears to be that six months was too short a period and/or the conditions imposed were too restrictive. But both the period and the conditions differ significantly as between the decisions of 8 January 2016 and 23 March 2018. A ruling by us on whether the earlier decision breached the Claimant's article 8 rights would not assist on whether the later decision does so. I would in any event be reluctant to make such a ruling, since we were not taken through the details of the evidence about the impact of the decision on the Claimant and his family.

(2) The Lumba Point

50. As appears at para. 27 above, Ms Kilroy argued before Collins J that it was wrong to treat the Claimant as covered by the RLP when by its own terms it did not apply to him: Lumba established that it was necessary as a matter of principle that a decision of the kind made here had to be made pursuant to a published policy. He rejected that argument, but Ms Kilroy seeks to revive it before us.
51. I see no value in considering whether paragraph (1) of Collins J's order can be upheld on this ground as well. The point is now of historic interest only. It does not arise as regards the decision of 23 March 2018 because the revised version of the policy in force has been changed with the intention that it should cover individuals in the same position as the Claimant: see para. 10 above. I am in fact inclined to think that Collins J was right to hold that the reasoning in Lumba did not apply to the kind of decision with which we are concerned here, but there is nothing to be gained by deciding the question definitively.
52. There is, however, one related point that I should consider. As noted above, Collins J in para. 27 of his judgment rejected an argument by Ms Kilroy that, even if the RLP could in principle be applied by analogy, the Claimant's case was, on its facts, not analogous to that of someone who had been excluded under article 1F. He held in terms, relying on the SIAC decision in 2003, that "the claimant's activities … were such as would have justified his exclusion". That finding is potentially relevant to the pending challenge because the class of persons whom the RLP has been revised in order to cover is (in short) those who would be excluded if they had made a protection claim. The effect of para. (4) of the Respondent's Notice is that Collins J's finding was wrong. Ms Kilroy argued before us that all that SIAC had to decide in 2003 was whether there was a "reasonable suspicion" that the Claimant had been involved in terrorist activities whereas the test required to satisfy article 1F was more demanding: she relied on the decision of the Supreme Court in Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54, [2013] 1 AC 745.
53. I can see no error in Collins J's conclusion. Ms Kilroy's point might have had force if the SIAC decision had turned on the level of suspicion required to be proved. But it did not. We were shown a copy of the open judgment, which confirms Collins J's statement that "the tribunal had no doubt that [the Claimant] had been involved in terrorist activities". Although the concluding paragraph begins by making a finding in terms of the statutory language of "reasonable suspicion", it continues:

"We have no doubt that he has been involved in the production of false documentation, has facilitated young Muslims to travel to Afghanistan to train for Jihad and has actively assisted terrorists who have links with Al Q'aeda. We are satisfied too that he has actively assisted the GSPC [being a Salafist group designated as a proscribed organisation under Part 2 of the Terrorism Act 2000]. We have no hesitation in dismissing his appeal."

DISPOSAL

54. In summary my conclusions are:

(1) Collins J was wrong to quash the decision of 8 January 2016 for the principal reason he gave, namely that (in effect) the Claimant was entitled to ILR. But:

(2) The decision was liable to be quashed nevertheless because the Secretary of State failed properly to take into account the evidence of the impact on the Claimant of the repeated grant of short periods of leave coupled with restrictive conditions. Had she done so it was arguable at least that she should have granted a longer period of leave and/or imposed less restrictive conditions.

55. The formal consequence of those conclusions is not entirely straightforward. However, since paragraph (1) of the order of 12 January 2017 provides simply that the decision of 8 January 2016 should be quashed, without specifying any particular reason, it seems to me that it must stand, despite the more limited basis on which I would hold the decision to be unlawful; and that to that extent the appeal should be dismissed. The substance of my conclusion that Collins J's principal reasoning was wrong would, other things being equal, be given effect to by amending paragraph (2) so as to provide that the decision be re-taken in accordance with the judgment of this Court rather than in accordance with his judgment. But in fact, as I have already said, in the light of the decision of 23 March 2018 it is pointless now to direct that the earlier decision be re-taken, and I accordingly think that the correct order is simply that the appeal be dismissed save that paragraph (2) should be set aside. That may seem an inadequate reflection of the fact that the Secretary of State has succeeded on the main point in issue; but the true position will be apparent from the terms of this judgment.

Lord Justice Bean:

56. I agree.

Lord Justice Newey:

57. I also agree.

Note 1    The reference appears to be to paras. 22-28 of his judgment in MS2, which contains a discussion of article 8 and in particular of the decisions of this Court in Kardi (see below) and Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803, [2016] 1 WLR 4203, and of section 117B (4) and (5) of the Nationality, Immigration and Asylum Act 2002. There was some debate before us about exactly how that fits in with the reasoning in the present case, including submissions about the construction of the brief reasons that Collins J gave for resolving disputed points about the terms of the orders to be made in the light of his judgments. We do not need to resolve these arcane points.    [Back]

Note 2    That is of course subject to any material change that may have been effected by the revised RLP. My understanding is that, so far as relevant, the effect of the revisions is simply to state more clearly what had already been decided in MS2 that it meant, but we were not directly addressed about this.    [Back]