MS v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins |
| Judgment Date | 09 December 2016 |
| Neutral Citation | [2016] EWHC 3162 (Admin) |
| Docket Number | Case No: CO/2528/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 December 2016 |
[2016] EWHC 3162 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Collins
Case No: CO/2528/2016
Ms Stephanie Harrison, QC andMs Charlotte Kilroy (instructed by Birnberg Peirce and Partners) for the Claimant
Ms Julie Anderson (instructed by GLD) for the Defendant
Hearing dates: 15 th and 16 th November 2016
Approved Judgment
The claimant is an Indian national. He is a Sikh who was involved in terrorist activities. He would be persecuted were he to be returned to India but, as a result of his terrorist activities, he was not entitled to benefit from the Refugee Convention because of Article 1F. However, he cannot be removed because to do so would breach his rights under Articles 2 and 3 of the ECHR since, as has been accepted by the defendant, there is a real risk that he would be subjected to torture or inhuman treatment or even killed.
With effect from 2 September 2011 the defendant through the UKBA issued a policy statement entitled "Policy Statement on Article 1F of the Refugee Convention restricted discretionary leave." It provides as follows:-
"With effect from 2 September 2011, all cases excluded from the protection of the Refugee Convention by virtue of Article 1F but who cannot be immediately removed from the UK due to Article 3 of the European Convention of Human Rights will be subject to a new, tighter, restricted leave policy.
Such cases should usually only be granted restricted discretionary leave to remain for a maximum of 6 months at a time, with some or all of the following restrictions:
• A condition restricting the person's employment or occupation in the UK;
• A condition restricting where the person can reside;
• A condition requiring the person to report to an immigration officer or the Secretary of State at regular intervals; and
• A condition prohibiting the person studying at an education institution.
In addition, relevant information on all Article 1F cases will be referred by the UK Border Agency to the Independent Safeguarding Authority (ISA) to consider whether the individuals concerned should be barred from working/volunteering in ISA-regulated fields.
This policy applies to all relevant individuals, whether they are seeking leave or renewal of leave to remain, including cases in which a previous grant of leave to remain was for a period longer than 6 months.
The power to attach conditions to leave is provided by section 3(1)(c) of the Immigration Act 1971. A person who knowingly fails to observe a condition of their leave commits an offence by virtue of section 24 (1)(b)(ii) of the Immigration Act 1971. Where appropriate, this policy will be enforced by the prosecution of individuals who do not comply with the conditions of their leave."
It will be referred to as RLR (Restricted Leave to Remain).
The claimant together with another, MBT, a Tunisian national who was in the same situation as MS, instituted proceedings before the UT(IAC) in which they argued that the RLR policy was unlawful for a number of reasons. In particular, it was said that it was not permitted by the provisions of section 3(1)(c) of the Immigration Act 1971. It was further submitted that the claimant should have been granted Indefinite Leave to Remain (ILR) since he had been in this country for a very long time, had a wife and children here and there was no possibility of his return within the foreseeable future. The tribunal consisting of Dove J and UT Judge Gill in a judgment given on 4 September 2015 decided that the RLR policy was lawful and so could be applied to the claimants: R(MS and MBT) v. SSHD [2015] UKUT 00539 (IAC). But in relation to MS the tribunal concluded that the policy had not been properly applied because the defendant had failed to consider whether, as it was put, 'the end point has been reached in his particular circumstances'. By 'the end point' the tribunal meant that it should have been considered whether the time had come to grant ILR or leave in excess of 6 months at a time which is what the policy laid down.
The Court of Appeal has granted permission to appeal against the decision that the RLR policy was lawful and the hearing of the appeal is due in March 2017. It was accepted by the claimant's representatives that I should assume the lawfulness of the policy. While the decision in MS and MBT is not binding on me, I would treat it with great respect, having regard in particular to the constitution of the tribunal. I will simply say that in my view the decision was correct.
Since the decision in MS and MBT, the defendant on 18 February 2016 decided to grant the claimant leave to remain for 2 years instead of 6 months but otherwise imposed much the same conditions as had been imposed under the previous grants of limited leave. That is the decision challenged in this claim. There are essentially three matters that I have to determine. First, it is submitted that it is now unlawful because unreasonable to fail to grant ILR. Secondly, it is submitted that the conditions imposed are wholly unnecessary and so unlawful. Thirdly, it is submitted that one of the conditions which requires the claimant to obtain the defendant's consent if he wishes to leave his address for more than specified periods is unlawful because it amounts to a restriction or imprisonment as understood by the common law which is not authorised by the general power to impose conditions contained in s.3(1)(c) of the 1971 Act.
On 15 and 16 November 2016 I heard argument in a claim R(G) v. SSHD (CO/1847/2016). G is an Algerian national who was involved in terrorist activities but whose asylum claim was refused so that Article 1F was not applied to him. But a certificate was issued under the provisions of the Anti-Terrorist Crime and Security Act 2001 which led to his detention and ultimate release on bail with a view to his deportation. He too could not be removed because to do so would breach his human rights. While the RLR policy did not directly apply to him, its limitations and conditions were used in his case. The lawfulness of this and the contention that in his case the time had come for at least a lengthy period of leave if not ILR were raised. In addition, there was argument that the conditions requiring the defendant's consent to being away from his residence for more than particular periods were unlawful. Save that in this case Ms Kilroy was led by Ms Harrison QC, counsel and solicitor in G were the same as in this case. But I do not think it is appropriate to give a joint judgment since the cases are separate and were heard separately. The argument about the condition was more detailed in this case and so I will deal with it in this case in full. Since I intend to hand down judgment in both at much the same time, rather than repeat the reasons given in this case in G, I shall simply indicate in G that my full reasons should be looked at in this case.
I have set out the policy, but it is important to take account of the Asylum Policy Instruction published on 23 January 2015 which gives guidance on the application of the policy. The policy is based on the view that those who are excluded from the Refugee Convention because of Article 1F should not be allowed to remain here since, whether or not they are a danger to national security, their presence is not conducive to the public good. That view is not nor could it be challenged. It is to be noted that exclusion under Article 1F can never be relaxed so serious is the conduct which has led to the exclusion.
The instruction is a lengthy document and so I shall summarise its most relevant provisions. The purpose behind the grant of 6 months leave at a time is to require frequent review of cases to ensure removal as early as possible. In paragraph 1.3.1 it is said:-
"….we want to ensure close contact and give a clear signal that the person should not become established in the UK."
The conditions are imposed to ensure that where a person lives and works can be monitored and, where necessary, access to positions of influence or trust can be prevented.
Duration of leave will in most instances be limited to 6 months. Apart from sending the message that there is normally no prospect of being allowed to remain, reference is made to paragraph 13(2)(b) of the Immigration (Leave to Enter and Remain Order) 2000 (S.I.2000/1161) which provides that, if someone with leave to remain for 6 months or less travels outside the UK, his leave will lapse. If he has longer leave, he should normally be readmitted.
Residence conditions are dealt with in 4.5 of the instruction. The purpose behind them is the obvious need for the Home Office to maintain contact with those covered by the policy and so a need to notify a change of address is essential so that the person's whereabouts are always known. 4.5.2 provides:-
"One of both of the following residence conditions should usually be imposed:
• To notify the Secretary of State of the home address and any change of address and/or
• To seek the prior consent of the Secretary of State to any change of address."
The former option will apply in all cases. The latter may be needed in particular if the person remains a risk to national security and should not be permitted access to a particular area. There may equally be circumstances in which to be in a particular area could mean that there is a risk of harm to the person or his family.
Paragraph 4.5.5 deals with the particular condition which is said to be...
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