England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/12/2016

Mr Justice Collins:

1. The claimant in this case is an Algerian national. He came to this country in August 1995 and attempted to obtain leave to enter using a false French passport. When its falsity was detected, he claimed asylum. Following an initial indication that he was living in Pakistan and feared persecution there, in due course his claim was based on fear of persecution in Algeria. This was because of his activities on behalf of an organisation called the Fronte Islamique de Salut (FIS) which when he joined it in 1989 was recognised by the Algerian government. His residence in Pakistan was relevant since, because of the situation in Algeria, Algerians were being expelled from Pakistan and the Algerian authorities in their efforts to combat terrorism had, as was accepted by the Secretary of State, a tendency to question those who had been to Pakistan and, like the claimant, had visited Afghanistan.
2. His claim was refused on 1 September 1997. He appealed. His appeal was dismissed by a Special Adjudicator on 12 December 1999. The adjudicator was unimpressed with the claimant as a witness and decided that he did not believe him and that his account was not credible. The claimant suffered from polio as a child and for the past 10 years or so has been confined to a wheelchair, but his disability meant that he would not have been liable to military service, which was, he said, something that he feared.
3. He then applied for confirmation of a right of residence in the UK as the spouse of an EEA national, namely his French wife. This was initially refused because of his failure to provide evidence that his wife was qualified under the relevant Regulations, but on 5 June 2001 he was issued with the confirmation he had sought. But on 18 December 2001 the Secretary of State certified that he believed the claimant's presence in the UK was a risk to national security and suspected that he was a terrorist within the meaning of Section 21 of the Anti-Terrorism, Crime and Security Act 2001. The basis for the certification was stated thus:-

"You are an active supporter of the Salafist Group for Call and Combat (GSPC), which is designated a proscribed organisation under Part 2 of the Terrorism Act 2000 and which has links to Usama Bin Laden's terrorist network. Your activities on behalf of the group and of extremist fighters in Chechnya include sponsoring young Muslims in the UK to go to Afghanistan to train for Jihad."

At the same time, a decision was made to make a deportation order against the claimant.

4. The claimant was detained pursuant to the 2001 Act. He appealed to SIAC. His appeal was heard by a tribunal chaired by me, judgment being given on 29 October 2003. While most of the evidence relied on against the claimant was heard in closed session, the conclusion was that the tribunal had no doubt that he had been involved in the production of false documentation, had facilitated young Muslims to travel to Afghanistan to train for Jihad and had actively assisted terrorists who had links to Al Qaeda. Further, the tribunal was satisfied that he had actively assisted the GSPC. Accordingly, his appeal against both certification and the decision to make a deportation order was dismissed.
5. In April 2004 the claimant was released on bail. Following the decision of the House of Lords in A and others v. Secretary of State for the Home Department [2005] 2 AC 68 which rendered unlawful detention under the 2001 Act, in March 2005, after the enactment of the Prevention of Terrorism Act 2005, a control order was made against the claimant. This included inter alia a number of obligations including a condition of residence, a prohibition on attendance of visitors or on meeting named persons without the Secretary of State's consent. There was no prohibition on employment, but the Secretary of State's agreement was required for attendance at any educational course.
6. In August 2005 the Secretary of State decided to make a deportation order against the claimant on the ground that to do so was conducive to the public good. The claimant appealed to SIAC on the grounds that to remove him to Algeria would breach his rights under the ECHR and under the Refugee Convention. On 8 February 2007 SIAC dismissed his appeal on the ground that assurances given by the Algerian government were sufficient to overcome any risk of a breach of Article 3 of the ECHR. It was not submitted by the Secretary of State that the claimant fell within Article 1F of the Refugee Convention, and SIAC did not find it necessary to deal with the Refugee Convention.
7. On 20 October 2005 the claimant was released on bail. He was one of a number of Algerians who had been involved with the same proscribed organisation. There were a number of bail hearings. On 30 July 2009 Mitting J observed in relation to the claimant:-

"In this man's case the risk [to national security] arises from historic events and historic associations with a group led by a man who is now detained. The risk of absconding seems to me at the moment to be as close to nil as one could get without actually arriving at a nil point and the circumstances in which he lives require, I think, quite urgently to be alleviated."

8. At a hearing on 30 July 2010, Mitting J observed that the threat that the claimant then posed to national security was not what it had been when he was first made the subject of the material proceedings. In February 2012 Mitting J said that the claimant 'like all of the Algerian appellants is now a historic case'. On 25 January 2013 SIAC by a panel chaired by Mitting J gave judgment in appeals by the claimant and six other Algerians. At the outset of the judgment, Mitting J observed:-

"There is no evidence or suggestion that any of [the appellants] has done anything which might be thought to have been harmful to the security of Algeria and its people for at least 9 years. In the case of most, that period would be an underestimate."

It has not been suggested that the claimant was then to be regarded as a risk to the national security of the UK in any way which was not linked to harm to the security of Algeria.

9. SIAC was satisfied that the assurances given by the Algerian government were sufficient to remove any risk of material ill-treatment or other breaches of ECHR and so all appeals save that of the claimant were dismissed. That of the claimant was allowed on the ground that his mental condition was such that the risk that he would commit suicide if returned to Algeria could not be properly managed. The panel heard evidence from two consultant psychiatrists. The claimant had been diagnosed to be suffering from a major depressive disorder with psychotic symptoms in 2003, which was aggravated by external events and stresses and by return to detention. He had made a serious suicide attempt on 15 September 2005. Dr Deeley on behalf of the claimant believed that he suffered from a recurrent depressive disorder with psychotic symptoms and PTSD. Dr Latcham on behalf of the Secretary of State believed that the depression from which the claimant suffered was reactive. Both psychiatrists agreed that there was a risk of suicide. When asked what steps could be taken to mitigate the suicide risk, Dr Latcham said that medication had no part to play, but continuous observation did. When asked if the Algerian authorities would have to provide continuous observation to obviate the risk of suicide, Dr Latcham said:-

"Yes. If he was a patient in a psychiatric hospital. I would say if he was returned to Algeria, if he was waiting to be returned to Algeria this court having decided he should go back to Algeria, if he was in hospital at that point I would consider it negligent if he were not to be continually observed. "

Since the panel was not satisfied that he would be given the necessary protection in Algeria, his appeal was allowed.

10. The Secretary of State did not appeal this decision and the bail conditions were discharged. On 6 June 2013 the claimant was granted leave to remain for 6 months. The grant stated:-

"With effect from 2 September 2011, all persons excluded from the protection of the Refugee Convention by virtue of Article 1F and from Humanitarian Protection but who cannot be immediately removed from the UK due to Article 3 of the ECHR will be subject to a new, tighter, Restricted Leave policy."

That was not a proper basis for acting since the claimant had not been excluded from the Refugee Convention by virtue of Article 1F.

11. This leads me to refer to another claim which I heard on 22 and 23 November 2016, R(MS) v. Secretary of State for the Home Department [2016] EWHC 3162 (Admin). MS had been excluded from the Refugee Convention by virtue of Article 1F but could not be returned to the country of his nationality because there was a real risk that his rights under Article 2 and 3 of the ECHR would be breached. In a previous claim, heard by the UT(IAC), MS and a fellow claimant who was in the same position challenged the use of the 2 September 2011 policy (which I will refer to as RLR) on the ground that it was not permitted by Section 3(1)(c) of the Immigration Act 1971 since parliamentary approval was needed for the imposition of the conditions set out in the policy. That claim failed, but an appeal is pending before the Court of Appeal, due to be heard in March. However, it was accepted that I should assume the lawfulness of the RLR policy. One issue in this claim is the contention that the RLR policy could not be used in the claimant's case and that the imposition of conditions which were based on it was not permitted in the absence of at least a policy which allowed such conditions and periods of leave and was applicable to those such as the claimant whose presence was not conducive to the public good but who could not be returned because of a real risk of a breach of their human rights.
12. In addition, it is contended that the stage has been reached when indefinite leave to remain (ILR) or at least a 30 month period of discretionary leave ought to have been granted. If limited leave is still permissible, some of the conditions imposed are unnecessary and unreasonable. In particular, it is submitted that a condition which prohibits the claimant from leaving his address for more than three days or more than 10 days in any 6 months period is unlawful because it amounts to a restraint on his liberty or even imprisonment within the meaning of false imprisonment in the common law tort. This latter claim was also raised in MS where it was argued in greater depth. I stated in my judgment in MS that I would not repeat my reasons for deciding on the points in MS in this claim since I was handing down judgment in both cases at much the same time. Suffice to say that the condition is in my view unlawful in that it does amount to a restraint which, following the decision of the Court of Appeal in R(Gedi) v. Secretary of State for the Home Department [2016] 4 WLR 93, is not permitted by the 1971 Act powers. I was not however, persuaded that it amounted to imprisonment. My full reasons for so concluding are set out in paragraphs 30 to 37 of MS and I do not need to extend this judgment by repeating them.
13. The decision of 6 June 2013 was obviously defective in assuming the claimant had been excluded from the Refugee Convention by Article 1F. On 27 November 2013 the claimant's solicitors applied for further leave to remain. It was pointed out that he did not come within the RLR policy and so he should be granted Discretionary Leave to Remain (DLR) which should be for a minimum of 30 months. In addition, it was submitted that not only were some of the conditions imposed unnecessary but the effect on the claimant's mental health of applying the RLR was such as to breach Article 3 of the ECHR. Reliance was placed on observations of the ECtHR in Pretty v. UK [2002] ECHR 427 at paragraph 52:-

"The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3 where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible."

14. The claimant's fear that he will be returned to Algeria is exacerbating his depression and the risk of suicide. Dr Deeley confirmed that short periods of leave coupled with the conditions imposed were very damaging to the claimant's mental health. Longer periods of leave would, he said, assist but indefinite leave would provide the only sure relief. Ms Anderson submitted that this ground could not succeed since, following the decision of the Court of Appeal in GS (India) v. Secretary of State for the Home Department [2015] 1 WLR 3312, there was a requirement that the treatment contrary to Article 3 be the result of an intentional act by the state. That the court said was a paradigm case. But if there is knowledge, as here, that particular treatment, in this case the imposition of conditions with a view to ensuring removal if possible, is causing suffering to a sufficiently high degree, Article 3 can be breached. So much is apparent from the observations I have already cited in Pretty v. UK.
15. 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. It will be necessary to consider when I have set out the full history of the decisions by the defendant whether that has been properly taken into account.
16. The defendant failed to deal with the letter of 27 November 2013 despite chasing letters. A fresh letter was sent on 11 February 2015 claiming ILR and stating that judicial review would follow a failure to grant ILR by 19 February 2015. The short period was justified because an earlier chasing letter had been sent on 20 January 2015. In the meantime, on 1 April 2014 the claimant had applied for consent to embark on a course at the Open University to develop Algebraic Thinking. Consent was required by one of the conditions imposed. The request was not dealt with until 19 February 2015 when the application was refused. It was said that the condition was intended to underline the temporary nature of the claimant's leave and he should not be establishing further roots in the UK. It was also said to reduce pressure on public finances – I am not sure how – and, for privately funded courses, to ensure that the claimant did not occupy spaces which would otherwise be taken up by British Citizens or those lawfully here. In addition, it was said that the course was 'designed for teachers or teaching assistants' and so was inappropriate since it 'would place him in a position of trust or influence'. The course was, as the literature provided about it made clear, not limited to anyone in particular. Further, the final assertion is clearly nonsense.
17. On 18 May 2015 the claimant made an application to UT(IAC) challenging the decisions to grant limited leave and to refuse the application to join the study course. Following the decision in MS and MT, in November 2015 UT(IAC) refused the defendant's application for a stay and directed that Summary Grounds of Defence be produced by 23 December 2015. The defendant on 11 December 2015 issued a further decision by means of a letter to the claimant's solicitors which granted the same six months leave with the same conditions as had been granted in the decision of 19 February 2015. Summary Grounds of Defence were served on 16 December 2015 in which it was said that the defendant no longer relied on the RLR policy and so the existing application could not proceed.
18. Unfortunately the defendant had made a serious error in the fresh decision. In paragraph 41 of the letter, it was said, in considering whether to grant ILR:-

"In view of your client's conviction for threating (sic) criminal damage for which he was given a twelve months sentence on 24 April 2009, his application for ILR falls for refusal under paragraph 322(1C)(ii) of the Immigration Rules because a period of 15 years has not passed since the end of the sentence."

Reliance was also placed on the SIAC determination that the claimant had been involved in terrorist activities. The conviction in 2009 was also relied on because it was said to mean, as he was a criminal, that his presence in the UK remained not conducive to the public good.

19. The claimant had not been convicted of any offence in this country and so the assertion that he had was untrue. No explanation has been given for this error, but clearly the decision was seriously flawed. In the Summary Grounds of Defence, which of course post-dated the letter of 11 December 2015, it was said:-

"…..[T]he Secretary of State has recognised that there is force in the submission that the applicant fell outside the RL policy because he had not been formally excluded from the Refugee Convention under Article 1F. Accordingly, the decision that these proceedings seek to challenge has been withdrawn and the RL policy will not be applied to this case when considering the application for leave."

I imagine this was drafted before the author was aware of the 11 December 2015 decision so that "will not be" should read "has not been".

20. In paragraph 54 of the 11 December 2015 letter, it is said:-

"The Secretary of State has the power to grant leave outside the Immigration Rules from her residual discretion under the Immigration Act 1971. Discretionary Leave (DL) is a form of leave to remain which is granted outside the Immigration Rules in accordance with the published policy instructions on DL dated 18 August 2013."

While 30 months is normally granted, it was said that regard should be had to the individual's criminal history. Thus the same error is relied on to refuse 30 months. It is then said that non-conducive persons such as the claimant should not be granted leave for any longer than necessary to overcome the barrier to removal, regular reviews were needed and it was "anticipated conditions will change to allow your client to return safely to Algeria in the near future." As will be clear, that assertion is unreasonable. It is then said that s.3 of the 1971 Act gives the right to grant limited leave and to impose conditions outside the Immigration Rules and the Home Office had set out guidance of how to exercise the discretion in the form of the published policy instructions. That can only refer back to the DL policy of 18 August 2013, based on criminality.

21. Following a letter from the claimant's solicitors pointing out the error in believing that the claimant had been convicted in this country of an offence, the defendant withdrew the decision letter of 11 December 2015. It was simply said that the reference to the conviction was an administrative error. Serious errors such as that are unforgiveable and I can only hope that steps have been taken to ensure that extra care is taken to avoid them in the future. However, I must bear in mind that judicial review is based on unlawfulness not poor administration, albeit the decision was unlawful since it was irrational by having regard to an immaterial consideration.
22. There followed on 8 January 2016 the decision which this claim challenges. It did not vary any of the previous decisions in that there was a grant of 6 months with the same conditions. It was said in paragraph 113 that not only did the claimant not fall within the DL or the RLR policies but he did not fall within any other published policy but 'there remains a legal barrier to removal at this time and the only option open to the Secretary of State is to grant LOTR.' LOTR means Leave Outside the Rules.
23. While they may not amount to a policy, there are published instructions to officials on considering LOTR which are dated April 2006. In paragraph 1.1 it is said that there are a limited number of circumstances in which a grant of Discretionary Leave may be appropriate were, for example, removal would breach Article 3 of the ECHR on account of the person's medical condition. In paragraph 1.2 it is said that any grant must be for 'reasons that are particularly compelling in circumstance.' Limited LOTR should be granted for a specified period for the necessary duration of stay required.
24. On 18 April 2016 SIAC reached its decision in relation to the other Algerians whose appeals had been dismissed. The Court of Appeal had directed a reconsideration. All the appeals were allowed because the assurances which had been given by the Algerian authorities could no longer be relied. This coupled with the claimant's medical condition means that the possibility that he might be returnable is even more remote. The medical evidence from both doctors shows that there is not likely to be any improvement in the risk of suicide or in the effect of fear of removal on his mental condition.
25. The claimant has been in the UK since 1995 and since August 2005 not in custody. He married in 1999 and has four children aged 17, 10, 8 and 3. All have obviously been brought up in this country. Thus his family life under Article 8 will be interfered with if he is removed and there will be damage to his wife and children. As I have said, the evidence from the doctors shows that the fear of removal is having a damaging effect on the claimant's mental health and that obviously also affects his wife and children. Thus the short periods of limited leave which are meant to bring home to him that there is an intention to remove him as soon as possible and that there is a reasonable prospect of doing so within a reasonable time will inevitably create stress and so adversely affect his mental state. In a statement made in November 2013 he records that the absence of conditions between January 2013, when SIAC allowed his appeal, and June 2013, when they were imposed under the limited leave, led him to feel a sense of security which began to alleviate his depression and symptoms. This sense of security was shattered by the imposition of conditions and the short periods of limited leave. The monthly requirement to report is particularly worrying for him since he fears that he may be detained on any such occasion.
26. The effect on the claimant's mental health as assessed by Dr Deeley is challenged in the decision letter on the basis that he had not considered the fact that it remained open to the claimant to request a variation of any conditions. Paragraph 97 of the letter concludes:-

"Nevertheless, it is considered that whilst the conditions of [the claimant's] current leave are causing some concern, he is able to seek a variation for any conditions….."

This does not meet the concerns raised by Dr Deeley nor does it deal with the basis of the claimant's concerns, namely the imposition of short periods of leave with any conditions so that it is made clear to him that the belief is that he can and will be removed shortly. In my view, the adverse effect of the defendant's decisions on the claimant and on his wife and family has not been properly taken into account in the decision letter.

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 in which I decided MS's case.
30. Ms Kilroy submits that the decision which is attacked is 'a naked attempt to continue to apply' the RLR policy to someone who does not meet its criteria. She relies on the lack of any reference in the RLR policy or that which deals with Discretionary Leave to the possibility of applying similar limitations and conditions to one who is not within those policies but is granted LOTR. She relies in particular on observations of Lord Dyson in R(Lumba) v. Secretary of State for the Home Department [2012] 1 AC 2012. That case concerned the detention of three claimants pending deportation. The Home Secretary had used a policy of detention which was not disclosed and was contrary to the published policy. Not surprisingly this was considered to have been unlawful. Lord Dyson said:-

"34. The rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised, just as arrest and surveillance powers need to be transparently identified through codes of practice and immigration rules so that the immigration detention powers need to be transparently identified through formulated policy statements.

35. The individual has a basis public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is a lawful exercise of the discretion conferred by the statutes. There is a correlative right to know what that currently existing policy is, so that the individual can make relevant representations in relation to it"

31. Since detention relates to loss of liberty, the need for a known policy is entirely understandable. That was the context in which Lord Dyson was expressing his opinion. Ms Anderson submitted that the decision of the Supreme Court in R(George) v. Secretary of State for the Home Department [2014] 1 WLR 1831 is consistent with the view that there is no need for any special policy to justify the imposition of conditions on limited leave if the cases of those such as Mr George who were because criminals liable to deportation since their presence here was not conducive to the public good. Lumba was not cited in George since the point at issue was whether the inability to remove revived an ILR which had been terminated by the making of a deportation order. Lord Hughes, giving the judgment of the Court, observed in paragraph 31:-

"There is no legal symmetry in indefinite leave to remain co-existing with the status of someone whose presence is not conducive to the public good. It makes perfectly good sense, whilst the legal obstacle remains, for the Secretary of State to be in a position to revisit the terms of leave to enter (sic)."

32. The court was not addressed on any requirement for a policy nor do those observations support the argument that it is shown that no policy is needed except where detention is in issue. But the reasoning of the UT(IAC) in MS & MT does not point in the direction of there being a need for a policy provided that any conditions are not tainted by the principles set out in Gedi. I am not persuaded that the conditions, if justified, could not have been imposed without a policy. Having said that, to avoid any future difficulties, it would be sensible for the defendant to set out a policy which applies to all whose presence is not conducive but cannot be removed.
33. 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.
34. It follows that the decision letter must be quashed and reconsideration must be given to the claimant's application having regard to what I have said in this judgment. The condition restricting his ability to leave his address for the named period is unlawful, but I doubt that that unlawfulness carries with it a claim for damages. Since there is no risk of absconding, reporting requirements are unreasonable.