R (on the application of MS) v Home Secretary
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Dove |
| Judgment Date | 04 September 2015 |
| Neutral Citation | [2015] UKUT 539 (IAC) |
| Date | 04 September 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2015] UKUT 539 (IAC)
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision Notice
The Honourable Mr Justice Dove
Upper Tribunal Judge Gill
Having considered all documents lodged and having heard the parties' respective representatives, Ms S Harrison QC of Counsel, Ms C Kilroy of Counsel for MS, Ms A Weston of Counsel for MBT and Ms J Anderson of Counsel for the respondent at a hearing at Field House on 6, 7 and 10 July 2015
R (on the application of MS) v Secretary of State for the Home Department (excluded persons: Restrictive Leave policy) IJR
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(i) With effect from 2 September 2011, the respondent introduced a policy pursuant to which she granted RLR to persons who were excluded from the Refugee Convention but whose removal would be in breach of Article 3 of the ECHR. The policy is stated to have three purposes, namely the public interest in maintaining the integrity of immigration control; public protection to ensure monitoring of where an individual lives and works and prevent their access to positions of trust, and upholding the international rule of law by supporting broader international obligations to remove individuals excluded from the Convention as soon as possible.
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(ii) Under the RLR policy, the duration for which leave is granted is usually a maximum of six months at a time, with an active review prior to the expiry of the leave when consideration is given to whether the individual can be removed, the intention being to effect removal at the earliest opportunity. The RLR policy also provides for conditions to be imposed, usually as follows: (i) a condition as to the place of residence, specifying the frequency with which the individual is permitted to live away from the designated place of residence; (ii) a condition restricting the individual's employment or occupation; (iii) a condition requiring the individual to report to an Immigration Officer or the Secretary of State at regular intervals; and (iv) a condition prohibiting the individual from studying at an educational institution without the prior consent of the Secretary of State. The RLR policy of 2 September 2011 is a lawful policy. The same applies to the subsequent RLR polices dated 28 May 2012 and 23 January 2015.
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(iii) There is sufficient flexibility within the RLR policy for decision makers to depart from the usual rule of only granting RLR for a maximum of six months at a time and of imposing the conditions described. The flexibility is comprised, inter alia, in the need to consider which of the types of condition are appropriate, the particular terms of the condition imposed and whether or not the point has been reached in the particular case where the only reasonable course available to the Secretary of State is to grant indefinite leave to remain (“ILR”).
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(iv) In considering the duration of the grant of leave and the type and detail of the conditions to be imposed, it will be necessary for decision makers to consider the impact on the best interests of any children as a primary consideration.
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(v) Whilst the imposition of time limited leave may have an impact on the quality of family life, in that, it may be stressful for all members of the individual's family to live under the continual “threat” every six months of the individual concerned being removed, it does not interfere with the continuance of family life.
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(vi) Very strong evidence would be needed to prevail over the public interest and public protection considerations which are given effect in the three purposes of the RLR policy so as to make it unreasonable for the respondent not to grant RLR for more than six months or not to impose the usual conditions.
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(i) The consideration of whether or not the point has been reached where the only reasonable course is to grant ILR will depend upon a variety of factors, including: (a) the reasons why the individual was excluded from the Refugee Convention; (b) whether the applicant has remained blamelessly in the United Kingdom for a lengthy period of time; (c) the prospect of removal of the applicant to his or her home country, involving an appraisal of the political circumstances of the home country bearing in mind that the international reputation of the United Kingdom which can be in point in these cases and (d) the particular circumstances of the applicant and his life in the United Kingdom.
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(ii) This is not an exhaustive list. Failure to consider this aspect of the policy and provide reasons may amount to an error of law. However, there will be cases when the suggestion that the end point has been reached is so hopeless that reasons are not required in relation to this aspect of the policy
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(i) The current Discretionary Leave policy (applicable since 24 June 2014) as well as its predecessor (the policy in place from at least November 2012) states that the RLR policy will apply unless exceptional circumstances justify divergence from the policy. This overarching policy, of not diverting individuals from the RLR policy unless there were exceptional circumstances, is also a lawful and rational policy.
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(ii) The respondent is entitled to apply her overarching policy. She is therefore not obliged to give reasons for applying the RLR policy to an individual and not diverting him or her to the DLR policy, unless there are plainly exceptional circumstances which she may have overlooked capable of outweighing the public interest in the three purposes of the RLR policy. If an individual is not diverted to the DLR policy, the transitional provisions in the DLR policy will not be applicable to him or her.
In cases where there has been a delay in making a decision on an in-time application for extension of leave and where, during the period of the delay, the applicable policy for excluded persons who cannot be removed has changed from the DLR policy that was applicable to such persons prior to 2 September 2011 to the RLR policy applicable since 2 September 2011, an argument based upon “historic injustice” is not available, applying by analogy the judgment of the Supreme Court in TN and MA (Afghanistan) v Secretary of State for the Home Department [2015] UKSC 40 .
Both members of the panel have contributed to this judgment.
Both of these cases raise the question of the legality of the adoption by the respondent of a policy known as the “Restrictive Leave to Remain” (“RLR”) policy, first introduced on 2 nd September 2011, which made provision for the duration for which leave is granted to persons who are excluded from protection under the Refugee Convention but who cannot be removed due to Article 3 of the ECHR. The RLR policy provided (in brief) that such persons will usually only be granted RLR for a maximum of six months at a time, with some or all of four types of conditions, namely, a condition as to place of residence and the number of nights that the excluded person can be absent from the place of residence; a condition restricting employment or occupation; a condition prohibiting studies; and a condition requiring the individual to report to an immigration officer or the Secretary of State at regular intervals. The RLR policy has been updated twice since, i.e. with effect from 28 th May 2012 and 23 rd January 2015. Within the RLR policy, it was stated in terms that active reviews would be undertaken when consideration is given to an application for extension of leave to ascertain whether the individual can be removed, and if not, conditions normally imposed were to maintain contact in order to facilitate removal when removal is possible, ensure that the individual does not gain access to positions of influence or trust and signal that the person should not become established in the United Kingdom.
Prior to the introduction of the RLR policy on 2 nd September 2011, persons who were excluded from protection under the Refugee Convention but who could not be removed due to Article 3 of the ECHR were granted leave as follows:
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(i) until 31 March 2003, exceptional leave to remain (“ELR”); and
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(ii) from 1 April 2003, discretionary leave to remain (“DLR”).
Conditions were not imposed when ELR was granted to excluded persons who could not be removed.
The DLR policy has evolved over time. The current version came into force on 24 th June 2014. The version that applied before the current version was in place at least from November 2012. This is the version that was in place when the decisions that are the subject of these claims were made (2 nd May 2014 in the case of MS and 21 st August 2013 in the case of MBT). None of the versions of the DLR policy provided for conditions to be imposed on the leave granted to excluded persons who cannot be removed.
Having set out this brief overview of the RLR policy and the DLR policy (dealt with in greater detail below), we return to the questions that are raised in these claims. Besides the legality of the RLR policy, the claims also raise the question, assuming that the RLR policy is lawful, as to whether or not in their individual cases the policy has been lawfully applied to them. The structure of this determination is firstly that we shall set out the facts in each of the individual cases, secondly, the respondent's evidence and the policy material is set out, thirdly, we shall identify the issues which are...
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