R(MS) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Simon,Lady Justice Gloster |
| Judgment Date | 31 July 2017 |
| Neutral Citation | [2017] EWCA Civ 1190 |
| Docket Number | Case Nos: C2/2015/3391 C4/2017/0027 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 2017 |
[2017] EWCA Civ 1190
Lady Justice Gloster
Vice-president of the Court of Appeal (Civil Division)
Lord Justice Underhill
and
Lord Justice Simon
Case Nos: C2/2015/3391
C2/2015/3392
C4/2017/0027
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (Immigration and Asylum Chamber)
Dove J and UTJ Gill
AND THE HIGH COURT, QUEEN'S BENCH DIVISION (Administrative Court)
Collins J
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Stephanie Harrison QC and Ms Charlotte Kilroy (instructed by Birnberg Peirce & Partners) for MS
Ms Amanda Weston (instructed by Birnberg Peirce & Partners) for MBT
Mr Robin Tam QC and Ms Julie Anderson (instructed by the Treasury Solicitor) for the Secretary of State
Hearing date: 14–16 March 2017
Written Submissions: 21, 29, 31 March 2017
Approved Judgment
INTRODUCTION
There are before the Court two connected appeals raising issues about the Secretary of State's "Restricted Leave Policy" ("the RLR policy"). This is the policy governing the grant of leave to remain to asylum-seekers whose claims have been refused because they have committed particularly serious offences, or who are excluded from humanitarian protection, but whom it is impossible to remove. The first appeal is from a decision of the Upper Tribunal (Dove J and UTJ Gill) dated 4 September 2015 refusing applications for judicial review brought by two claimants, MS and MBT, in relation to the lawfulness both of the RLR policy generally and of particular decisions taken under it: I will refer to these as "the UT proceedings". The second is from a decision of Collins J in the Administrative Court dated 9 December 2016 quashing a subsequent decision of the Secretary of State taken under the RLR policy in relation to leave to remain sought by MS: I will refer to these proceedings as "the MS2 proceedings". Where it is necessary to refer to MS and MBT together I will call them "the Claimants".
I will set out the facts of the Claimants' cases, and the nature of their claims, in due course. For present purposes it is sufficient to give a bare outline as follows:
(1) MS is a Sikh of Indian nationality. He was born on 15 October 1972 and so is now aged 44. He came to this country in 1995 and claimed asylum shortly afterwards. His claim was refused on the basis that he was excluded from the protection of the Refugee Convention because he had been involved in terrorist activities. A decision was made to deport him. He appealed. In 2000 the Special Immigration Appeals Commission ("SIAC") accepted that he had indeed been involved in terrorism, but it found that his removal to India would be in breach of article 3 of the European Convention on Human Rights ("the ECHR") because he would be at risk of torture by the Indian authorities. He has remained in the UK ever since with various forms of limited leave. He is married and has a family and a job.
(2) MBT is a national of Tunisia. He was born on 20 December 1966 and so is now aged 50. He came to this country and claimed asylum in 1999. He had been convicted in France of terrorism-related offences, and accordingly his claim also was refused on the basis that he was excluded from the protection of the Refugee Convention. He also, however, was granted limited leave to remain on the basis that his return to Tunisia would involve a breach of his rights under article 3 of the ECHR; and there have been various extensions of his leave since. He is married and has a family.
Both Claimants wish to be granted indefinite leave to remain ("ILR") but the Secretary of State has refused on the basis that that would be contrary to the RLR policy.
MS has been represented before us by Ms Stephanie Harrison QC and Ms Charlotte Kilroy, MBT by Ms Amanda Weston and the Secretary of State by Mr Robin Tam QC and Ms Julie Anderson. The representation was the same in the UT and the Administrative Court, save that Ms Anderson appeared on her own.
The identity of both Claimants was anonymised in the tribunals below and we have thought it right to continue that anonymity.
THE BACKGROUND LAW
THE REFUGEE CONVENTION AND THE ECHR
Article 1 of the Refugee Convention contains the basic definition of the term "refugee" and is thus the key to the substantive rights granted by it. But section F reads as follows:
"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations."
There are substantially identically-worded exclusions – see articles 12 and 17 – in the so-called Qualification Directive, which establishes a regime for "humanitarian protection" in EU law: the Directive both incorporates the requirements of the Refugee Convention and to some extent widens the protected class through the medium of "subsidiary protection". I will for convenience refer to the situations covered by heads (a) to (c) as situations where the person in question is guilty of "serious crimes", though that is not quite accurate since conduct under head (c) may not be a crime, nor may he have been convicted.
I should also refer to a similar exclusion as regards the protection against refoulement granted by article 33 of the Refugee Convention 1. Paragraph 2 of that article reads:
"The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."
I will likewise for convenience include this exclusion under the general rubric "serious crime", though it covers also refugees who are a danger to national security.
The effect of those exclusion provisions, taken by themselves, is that where there are reasonable grounds for believing that a person is guilty of acts of the kind specified he may nevertheless be refused asylum and returned to a country where he is at serious risk of persecution or other serious harm. But that is overlain by the provisions of the ECHR, since it would be a breach of article 3 for him to be returned to a country where there was a real risk that he would be "subjected to torture or to inhuman or degrading treatment or punishment". It is the interaction of these two regimes that produces the situation in which the Claimants find themselves. I shall refer to that situation as "excluded but irremovable" or "excluded".
THE DOMESTIC STATUTORY BACKGROUND AND THE RULES
The basic provisions governing leave to enter the United Kingdom and leave to remain are to be found in section 3 of the Immigration Act 1971. The two which are relevant for our purposes are as follows:
(1) Sub-section (1) (b) provides for leave to be "either for a limited or for an indefinite period". Sub-section (1) (c), which I set out in full at para. 83 below, gives the Secretary of State power to impose conditions in the case of limited leave to remain; there is no such power in the case of ILR.
(2) Sub-section (2) requires the Secretary of State to lay before Parliament from time to time to time "statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter". The Immigration Rules are made, and are laid before Parliament, on that basis.
The Secretary of State also from time to time makes statements of policy on matters not covered by the Immigration Rules, often in the form of "instructions" to case-workers. As long as they do not have the character of rules such policies do not fall within the terms of section 3 (2) and do not therefore have to be laid before Parliament. The question of when a policy or instruction amounts to a rule was considered by the Supreme Court in R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33, [2012] 1 WLR 2208, to which I refer more fully at para. 89 below.
The grant of leave to enter or remain to asylum seekers is covered by Part 11 of the Rules, but applicants who are excluded from humanitarian protection fall outside the scope of those provisions. I need, however, to refer to Part 9, which sets out general grounds for the refusal of leave to enter or remain. These included, at paragraph 322 (2)–(12), "grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom should normally be refused". One of those grounds, at (5), is
"the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct (including convictions which do not fall within paragraph 322(1C)), character or associations or the fact that he represents a threat to national security"
(Paragraph 322 (1C) grades convictions by recency and length of sentence.)
THE PREDECESSORS TO THE RESTRICTED LEAVE POLICY
The position of persons who are excluded but irremovable is not addressed in the Immigration Rules. It has, instead, been dealt with by a series of policies. Immediately prior to the introduction of the RLR policy the relevant policy, which was issued in March 2003,...
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