ON APPEAL FROM the UPPER TRIBUNAL (Immigration & Asylum Chamber)
DEPUTY UPPER TRIBUNAL JUDGE SYMES
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SINGH
SIR PATRICK ELIAS
| TANVIR BABAR
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Zane Malik (instructed by Malik Law Chambers) for the Respondent
Hearing date : 1 February 2018
Crown Copyright ©
Sir Patrick Elias :
"any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee…."
The relevant law
"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) 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) age; and
(b) strength of connections in the United Kingdom; and
(c) personal history, including character, conduct, associations and employment record; and
(d) domestic circumstances; and
(e) compassionate circumstances; and
(f) any representations received on the person's behalf; and
(iii) the applicant does not fall for refusal under the general grounds for refusal."
"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."
"1.2.3 This policy applies to anyone where there is an ECHR barrier to removal ...
1.2.4 As those who fall within the scope of this policy have committed serious international crimes and/or represent a danger to the security of the UK, only Article 3 considerations will normally outweigh the public interest in removing them because it is an absolute right and the extent of the public interest cannot be taken into account. Where qualified rights are engaged, such as Article 8 ECHR, only in the most compelling compassionate circumstances could their family or private life, or medical considerations, outweigh the public interest in removal in these cases. It is expected there will be very few such cases, but where there are such cases this policy applies.
1.2.5 Such cases will be reviewed regularly with a view to removal as soon as possible and only in exceptional circumstances will individuals on restricted leave ever become eligible for settlement or citizenship. Such exceptional circumstances are likely to be very rare."
"4.12.1 Those excluded from the Refugee Convention and/or Humanitarian Protection may make applications for indefinite leave to remain on the basis of long residence, for example because they have lived in the UK lawfully for 10 years or more. The requirements are at paragraph 276B of the Immigration Rules. Consideration must be given to all the factors listed in paragraph 276B (ii) and in particular consideration must be given to the person's conduct which led to them being excluded from the Refugee Convention and/or Humanitarian Protection when looking at character, conduct and associations under paragraph 276B (ii)(c). Usually, given our international obligations to prevent the UK from becoming a safe haven for those who have committed very serious crimes, the conduct will mean that the application should be refused, but decisions must be taken on a case-by-case basis.
4.12.2 Consideration must be given to each of the general grounds for refusal under paragraph 276B (iii). Paragraph 322 (1C) sets out the grounds for refusing indefinite leave to remain where a person has a criminal conviction. For the purposes of this rule, the conviction does not have to be a UK conviction, but any overseas conviction must be for an offence which has an equivalent in the UK. For example, overseas convictions for homosexuality or proselytising would be disregarded. Consideration must also be given to the rest of the general grounds for refusal at paragraph 322.
4.12.3 Excluded individuals may seek to rely on N, R (on the application of) v Secretary of State for the Home Department  EWHC 1581 in which it was held at paragraphs 21 and 22:
"21. This policy relating to those who are not within the protection of the Refugee Convention because of Article 1 F (b) seems to me to be entirely reasonable. The rationale behind it I have not had spelled out before me, but it seems obvious that what is desired is to keep open the possibility of return and the need to consider at regular and relatively short intervals whether return can be effected because, as a general approach, those who would not qualify because of the commission of a serious offence should not generally be considered to be able to remain within this country. One can understand why that policy has been adopted.
22. Accordingly, in principle, to award only six months is not in the least unreasonable. But the policy has, as it were, a cap. It is recognised that there will come a time when - provided the individual has behaved himself in this country - it would be proper to regard him as having put behind him, as it were, the original offending. Thus if someone has been here for ten years and subjected to a series of discretionary leaves for that period he will normally be able to remain here indefinitely. He will, after all, be expected by then to have made his life in this country, to have settled here, perhaps to have established family life here. The view is, again as it seems to me, entirely reasonably taken that generally speaking - and of course each case has to be considered on its own merits - such an individual will have leave to remain indefinitely and thus will be entitled to settle here."
"4.12.4 Decision-makers must carefully consider the facts of an individual case against the specific facts in the case of R on the application of N to determine whether they are analogous and whether the principles set out in that case are applicable to the case under consideration.
4.12.5 Where a person does not qualify for indefinite leave to remain, consideration must be given to whether there continues to be an ECHR barrier to removal. If there is not, then the case must be prioritised for removal. If there is, then the person must be granted restricted leave within the terms of this policy."
"In my view the policy should be read as prescribing that ILR should, for all the policy reasons stated elsewhere in section 1, only in exceptional circumstances be granted to migrants who were excluded but irremovable. Para. 22 of Collins J's judgment, and in particular the reference to a ten-year norm, is not being referred to as stating the usual rule but only as applicable in a case on exceptional facts such as those of N."
"40 That puts the focus on the phrase "in exceptional circumstances". That language is of course very familiar in the immigration context because of the debate about its meaning in paragraph 398 of the Immigration Rules, where it is used to describe when the public interest in the deportation of a foreign criminal will be outweighed by other factors. In MF (Nigeria) v Secretary of State for the Home Department  EWCA Civ 1192,  1 WLR 544, this Court held that the phrase did not connote "a test of exceptionality" but rather a situation involving a departure from the general rule, which was only to be justified in compelling circumstances: see paras. 40-41 in the judgment of the Court delivered by Lord Dyson MR (p. 560). That approach was endorsed by the Supreme Court in Ali v Secretary of State for the Home Department  UKSC 60,  1 WLR 4799: see paras. 37-38 of the judgment of Lord Reed (pp. 4815-6)."
"41. Although the Court was in those cases concerned with a rule and not a policy, that is not a material difference for our purposes, and I think the phrase must have the same meaning here. The statement that exceptional circumstances are likely to be very rare is a prediction and does not as such qualify the nature of the approach required (cf. the distinction made by the Appellate Committee in para. 20 of its opinion in Huang v Secretary of State for the Home Department  UKHL 11,  AC 167, at p. 188 A-B)."
The hearings below
37. The upshot of those policy positions is that consideration of further leave and settlement applications for excluded persons is always subject to the active review process which assesses their ongoing protection needs. From September 2011 all future consideration of these applications should be under the restricted leave policy rather than DLR rubric. The test is one of "exceptional circumstances" and the benchmark is clearly intended to be a high one, encapsulated in the general warning given to decision makers that such cases are anticipated as being "very rare". Whilst the public policy position of putting roadblocks in the way of the settlement of such individuals is firmly entrenched and must be given appropriate weight, the proviso in N has been adopted within the guidance, acknowledging that there will be cases where a person has nevertheless established themselves so firmly in this country and conducted themselves such that it would be right to treat the original offending as being firmly behind them.
38. No challenge has been made to the findings of the First-tier tribunal as to the facts of the case. In the light of those facts, and drawing together the threads identified above, I consider that the decision to refuse indefinite leave to remain was wrong. This is because
i) The Appellant has now lived in this country for many years, including an initial period of some seven years in which it appears no exclusion point was raised against him;
ii) His family, with whom he has lived throughout his life in Pakistan and in this country, have put down roots here, his daughters in particular having grown up and spent their formative years here, and now being wholly assimilated in the United Kingdom where they have pursued their legal studies with success and have cause to look forwards to careers here, confident as to the full support of their parents;
iii) His wife and daughters see him as the head of the family and absolutely central to their lives here;
iv) He has worked here in the past and run a business, and been assessed by the Independent Safeguarding Authority as posing no risk to the public;
v) His probable command responsibility for violence against suspects with the police force in Pakistan in the 1990s, whilst utterly reprehensible and rightly censured by the international community (as has been firmly recognised in his case by repeated short grants of leave to remain integration) is nevertheless at the lower end of those international crimes that the law stigmatises. Given that the Respondent's policy itself recognises the possibility of the grant of leave to remain in this class of cases, however rare in practice, this makes it clear that it is not intended that the bare commission of any international crime is not itself seen as ruling out that possibility.
39. Like the First-tier Tribunal, therefore, though for more nuanced reasons, it is my conclusion that the balance under the Rules should have been struck in his favour and that the grant of indefinite leave to remain is appropriate, given that the roots he has put down here for many years have become firmly established notwithstanding the roadblocks placed in his path, making this one of the "very rare" cases which the policy positions struck by the Secretary of State recognise as apposite to the grant of settlement.
Grounds of appeal.
Lord Justice Singh
Lady Justice Arden