R (on the Application of MBT) v Secretary of State for the Home Department (Restricted Leave; ILR; Disability Discrimination)
| Jurisdiction | UK Non-devolved |
| Judge | Stephen Smith,Nicol J |
| Judgment Date | 16 December 2019 |
| Neutral Citation | [2019] UKUT 414 (IAC) |
| Date | 16 December 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2019] UKUT 414 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Nicol J and Stephen Smith UTJ
Ms A Weston QC and Mr S Clark instructed by Birnberg Peirce, for the Applicant;
Ms J Anderson instructed by the Government Legal Department, for the Secretary of State.
Babar v Secretary of State for the Home Department [2018] EWCA Civ 329; [2018] Imm AR 1001
Bensaid v United Kingdom 2001 ECHR 44599/98; (2001) 33 EHRR 10; [2001] INLR 325
EV (Philippines) and Others v Secretary of State for the Home Department [2014] EWCA Civ 874
Jeunesse v Netherlands 2014 ECHR 12738/10; (2015) 60 EHRR 17
KO (Nigeria) v Secretary of State for the Home Department; IT (Jamaica) v Secretary of State for the Home Department; NS (Sri Lanka and Others) v Secretary of State for the Home Department; Pereira v Secretary of State for the Home Department[2018] UKSC 53; [2018] 1 WLR 5273; [2019] 1 All ER 675; [2019] Imm AR 400; [2019] INLR 41
MS (India) and MT (Tunisia) v Secretary of State for the Home Department; Secretary of State for the Home Department v MS (India)[2017] EWCA Civ 1190; [2018] 1 WLR 389; [2018] Imm AR 117
Pretty v United Kingdom 2002 ECHR 2346/02; (2002) 35 EHRR 1
R v Secretary of State for the Home Department ex parte Razgar [2004] UKHL 27; [2004] 2 AC 368; [2004] 3 WLR 58; [2004] 3 All ER 821; [2004] Imm AR 381; [2004] INLR 349
R (on the application of Agyarko) v Secretary of State for the Home Department; R (on the application of Ikuga) v Secretary of State for the Home Department[2017] UKSC 11; [2017] 1 WLR 823; [2017] 4 All ER 575; [2017] 3 CMLR 3; [2017] Imm AR 764; [2017] INLR 548
R (on the application of Kardi) v Secretary of State for the Home Department [2014] EWCA Civ 934
R (on the application of MS) v Secretary of State for the Home Department (excluded persons: Restrictive Leave policy) IJR [2015] UKUT 539 (IAC)
S and Others v Secretary of State for the Home Department [2006] EWCA Civ 1157; [2006] INLR 575
Secretary of State for the Home Department v Ruhumuliza [2018] EWCA Civ 1178
Equality Act 2010, sections 15 & 149 and paragrph 16 of Schedule 3
European Convention on Human Rights, Articles 3, 5, 8 & 14
Immigration Act 1971, section 3
Immigration Rules HC 395 (as amended), paragraphs 276ADE(1), 276BE(1) & 276DE
Nationality, Immigration and Asylum Act 2002, sections 72, 117B(6) & 117D(1)
Refugee Convention 1951, Articles 1F(b)-(c) & 33
Human rights — Article 8 of the ECHR — family and private life — mental and physical health problems — best interests of the child — proportionality — Article 14 of the ECHR — disability discrimination — immigration — Home Office policies and concessions — Restricted Leave policy — indefinite leave to remain — criteria set out in MS (India) and MT (Tunisia)[2017] EWCA Civ 1190 — 30 years long residence required — gravity of conduct — rehabilitation — disability discrimination — Equality Act 2010
The Applicant, a citizen of Tunisia, was detained and tortured by the Tunisian authorities for the membership of a political party in the late 1980s and early 1990s. He fled Tunisia in 1991. In January 1998, he was convicted in France, along with several other Tunisian citizens, of terrorism related offences. Those offences included the possession and transportation of unauthorised weapons, unlawful entry to France, forgery of an official document, and association with other malfaiteurs. He was sentenced to five years' imprisonment. He did not appeal the conviction and maintained that he did not receive a fair trial. In May 1999, he entered the United Kingdom and applied for asylum, declaring his convictions in France. The Secretary of State for the Home Department refused the application on the grounds that he was excluded from the Refugee Convention, under Article 1F(b) and (c). Instead he was granted discretionary leave to remain, initially for a period of six months, under the relevant policy then in force.
The Applicant suffered from a range of debilitating medical conditions, including epilepsy, severe shoulder and back pain, a herniated disc, severe secondary headaches stemming from historical head injuries and high blood pressure. He had been diagnosed as suffering from severe post-traumatic stress disorder. His symptoms included flashbacks, noise sensitivity, claustrophobia, dramatic nightmares, anxiety attacks, sleeplessness, pervasive feelings of despair, negative thoughts and very severe intrusive preoccupations, melancholic depressive ruminations, beliefs that he had destroyed other people's lives, suicidal ideation, self-harm and depressive hallucinations. The symptoms were attributable to the major catastrophic trauma arising from the detention and torture he experienced in Tunisia, and the ongoing stress and uncertainty as to the length of his residence and immigration status in the United Kingdom. Those factors were set out in the report of Dr Bell, Consultant Psychiatrist, dated April 2019, and letters from experts with the Helen Bamber Foundation dated August 2017 and November 2017.
It was common ground that the Applicant could not be removed to Tunisia due to the risk of further mistreatment at the hands of the authorities. Following his initial grant of discretionary leave to remain, the Applicant was granted further, repeated, periods of discretionary leave. In August 2013, the Secretary of State granted the Applicant his first six-month period of restricted leave under the Restricted Leave policy (“the RL policy”). The policy applied primarily to those excluded from the protection of the Refugee Convention due to their commission of criminal or other reprehensible acts but who could not be removed under the European Convention on Human Rights (“ECHR”). Grants of restricted leave were typically for six months at a time, and attracted conditions intended, inter alia, to restrict the individual's ability to establish a private life and enable the Secretary of State to monitor his or her presence for the purposes of public protection. A further objective of the RL policy was to prevent the United Kingdom becoming a “safe haven” for those whose conduct merited their exclusion from refugee status. In MS (India) and MT (Tunisia) v Secretary of State for the Home Department[2017] EWCA Civ 1190, the Court of Appeal found that the RL policy was lawful and made a number of observations about the circumstances when those subject to the RL policy might be entitled to indefinite leave to remain (“ILR”).
The Applicant brought judicial review proceedings in the Upper Tribunal challenging decisions by the Secretary of State in 2018 and 2019 refusing his applications for ILR. The 2018 decision granted six months restricted leave with the condition to report to an immigration centre every two months. The 2019 decision considered the Applicant's mental health issues set out in the report of Dr Bell and granted 12 months restricted leave with the requirement to report every three months.
With respect to the 2018 decision, the Applicant was granted permission to apply for judicial review on two grounds. Ground 1 asserted that the 2018 decision was a disproportionate interference with the private and family life of the Applicant, his wife and British children in breach of Article 8 of the ECHR in that it failed to undertake a sufficiently individual and particularised assessment of the relevant factors. Ground 4 asserted that the decision was irrational. Permission was refused on grounds 2 and 3 which asserted that the decision discriminated on the basis of disability and therefore breached sections 15 and 29 of the Equality Act 2010 (“the EA 2010”), and/or Article 14 of the ECHR, taken with Article 8, (ground 2) and that the RL policy breached the public sector equality duty contained in section 149 of the EA 2010 (ground 3). The Applicant renewed his application for permission regarding grounds 2 and 3.
With respect to the 2019 decision, the Applicant sought permission to apply for judicial review on six grounds, two of which were new. Ground 5 asserted that the Secretary of State irrationally failed to take into account and address by way of adequate reasoning the representations and material available concerning the Applicant's removability and the report of Dr Bell. Ground 6 asserted that the Secretary of State breached her duty of inquiry concerning the Applicant's risk on return. Grounds 7 to 10 replicated the original grounds 1 to 4.
Held, granting permission to apply for judicial review on ground 7 only and refusing the application for judicial review on grounds 1, 4 and 7:
(1) The challenge to the 2018 decision was academic as the decision conferred a period of leave to remain which had since expired. The Applicant accepted that, to the extent he sought to establish that the 2019 decision was unlawful or disproportionate, it would be possible to make the appropriate submissions by reference to that decision alone, without the need for substantive consideration of the 2018 decision in its own capacity. Accordingly, the application in relation to grounds 1 and 4 was refused and permission was refused in relation to grounds 2 and 3 (paras 52 – 54).
(2) A decision of the Secretary of State not to grant ILR to a person subject to the RL policy did not normally engage Article 8 of the ECHR. Article 8 might, however, be engaged by a decision to refuse to grant ILR where, for example, the poor state of an individual's mental and physical health was such that regular, repeated grants of restricted leave were capable of having a distinct and acute impact on the health of the individual concerned: MS (India); Jeunesse v Netherlands2014 ECHR 12738/10; R (on the application of Kardi) v Secretary of State for the Home Department...
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