Secretary of State for the Home Department v Jonathan Ruhumuliza
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Singh,Lord Justice Irwin |
| Judgment Date | 23 May 2018 |
| Neutral Citation | [2018] EWCA Civ 1178 |
| Date | 23 May 2018 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2016/3244 |
[2018] EWCA Civ 1178
Lord Justice Underhill
Lord Justice Irwin
and
Lord Justice Singh
Case No: C5/2016/3244
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Upper Tribunal (Immigration and Asylum Chamber)
Ockelton V-P and UTJ Martin
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Julie Anderson (instructed by the Treasury Solicitor) for the Appellant
Mr Adam Pipe (instructed by Rashid & Co. Solicitors) for the Respondent
Hearing date: 17 April 2018
INTRODUCTION
The Respondent is a national of Rwanda, of Hutu ethnicity. He is aged 62. He is a bishop of the Anglican Church. At the time of the Rwandan genocide in 1994 he was Bishop Co-Adjutor of the Kigali diocese. There are issues, to which I will return, about whether or to what extent he was complicit in the genocide or an apologist for it in the immediate aftermath. In 1997 he left Rwanda and spent one or two years in Canada. In 1998 he became a Missionary Bishop and Representative of the Archbishop of West Africa in Cameroon.
In January 2004 he came to this country, on a student visa, to study at a theological college in Birmingham and was subsequently granted leave to remain as a minister of religion until 31 January 2007 (though he was strictly without leave between 1 October and 3 November 2006 as a result of a late application). He has held various positions in the parish ministry and as a teacher.
Prior to the expiry of his leave in 2007 the Respondent made a further application. That prompted an investigation into his history in Rwanda, and in June 2008 the application was refused on the ground that his conduct rendered the grant of leave undesirable. That decision was subsequently withdrawn, and in March 2009, before any fresh decision was taken, he applied for asylum in this country.
By a decision dated 10 March 2011 (“the 2011 decision”) the Secretary of State refused the Respondent's application for asylum on the basis that there were “serious reasons for considering that he had committed … a crime against humanity” by reason of complicity in the Rwandan genocide, and that he was accordingly excluded from the protection of the Refugee Convention by virtue of article 1F (a), which reads:
“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)-(c) …”
The letter is 25 pages long and contains very detailed reasons for the Secretary of State's conclusion. The reasons are avowedly based on a report compiled by UK Border Agency's Special Cases Directorate, which itself drew on various sources (including a report referred to below called the African Rights Report). However, it was concluded that the Respondent's return to Rwanda might involve a breach of the UK's obligations under article 6 of the European Convention on Human Rights, and he was accordingly granted six months discretionary leave to remain, which would expire on 9 September 2011. Under section 83 of the Nationality, Immigration and Asylum Act 2002 the Respondent had no right of appeal against that decision.
On 25 August 2011 the Respondent applied for further leave to remain. That application was refused by letter from the Secretary of State dated 20 March 2014 (“the 2014 decision”). I shall have to return to aspects of this decision in due course, but at this stage I need only say that she relied on the suitability provisions of section S-LTR.1 of Appendix FM to the Immigration Rules, and specifically paragraph S-LTR.1.6, which provides (so far as material) that leave should not be granted where:
“the presence of the applicant in the UK is not conducive to the public good because their conduct …, character, associations, or other reasons, make it undesirable to allow them to remain in the UK”.
She said that the Respondent fell within the terms of that paragraph because of “your previous conduct in Rwanda leading to your exclusion from the Refugee Convention”. She relied on the reasons given in the 2011 decision.
The Respondent appealed to the First-tier Tribunal. I need not summarise his grounds, but he included with them a notice under section 120 of the 2002 Act claiming that he was entitled to indefinite leave to remain (“ILR”) under paragraph 276B of the Rules, since he had now been lawfully resident in the UK for ten years.
The relevant parts of paragraph 276B as it stood at the material time read:
“276B The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:
(i) (a) [sic] he has had at least 10 years continuous lawful residence in the United Kingdom.
(ii) having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his:
(a)-(b) …; and
(c) personal history, including character, conduct, associations and employment record; and
(d)-(f) …; and
(iii) the applicant does not fall for refusal under the general grounds for refusal.
(iv)-(v) …”
The “general grounds for refusal” referred to under head (iii) are to be found in Part 9 of the Rules. They include paragraph 320 (5), which is in similar terms to paragraph 276B (ii) (c).
The Respondent's appeal was heard at Birmingham on 3 June 2015 by a Tribunal consisting of Upper Tribunal Judge Renton and First-tier Tribunal Judge Pirotta. He was represented by Mr Adam Pipe of counsel, who also appears before us. The Secretary of State was represented by a Senior Home Office Presenting Officer, Mr Wilding. Both parties lodged documentary evidence about the Rwandan genocide in general and the Respondent's alleged conduct in connection with it in particular, together with expert reports. The Respondent also gave oral evidence and was cross-examined about the allegations against him.
It was not part of the Respondent's case before the FTT that he qualified for asylum. This was because he was, as will appear, in good standing with the Rwandan government, and he was accordingly unable to say that he would be at risk of persecution on return. The appeal proceeded on the basis that the only issue was whether he was entitled to ILR under paragraph 276B, as claimed in his section 120 notice; and, more particularly, whether the conduct on which the Secretary of State had relied in refusing his claim in the 2014 decision meant that he was disqualified under heads (ii) (c) and (iii). Ms Julie Anderson, who appears before us for the Secretary of State, suggested that this was not an entirely satisfactory way to proceed since there had been no prior decision of the Secretary of State on that question. However, it was common ground that the provisions in question were to substantially the same effect as paragraph S-LTR.1.6, on which the Secretary of State had relied in the 2014 decision; and in any event Mr Wilding agreed to proceed on this basis.
By a decision promulgated on 2 July 2015 the FTT allowed the Respondent's appeal “to the extent of finding that [the Secretary of State's] failure to consider the long residence grounds set out in the [Respondent's] Section 120 Notice is not in accordance with the law, bearing in mind our finding that [he] qualifies for leave to remain on that basis”. I will return to its reasoning in due course.
The Secretary of State sought permission to appeal to the Upper Tribunal. Four grounds of appeal were pleaded. The headings are (1) “Material Misapplication of Law”, (2) “Failure to Give Adequate Reasons for Finding”, (3) “Procedural Unfairness, and (4) “Material Misdirection of Law”; and a number of particular criticisms are advanced under those headings.
Permission was granted by Upper Tribunal Judge Martin. She said:
“I grant permission to appeal on the basis that it is arguable that the First-tier Tribunal may have erred in concluding that the fact that the appellant [i.e. the respondent before us] is excluded from the Refugee Convention under Article 1F (a) is not determinative under paragraph 276B (ii) of the Immigration Rules.”
On the face of it that ground is a good deal more limited than those pleaded in the grounds of appeal. However, it was common ground before us, by reference to the decision of the Upper Tribunal in Ferrer (Limited Appeal Grounds; Alvi) [2012] UKUT 00304 (IAC), that the totality of the pleaded grounds remained open to the Secretary of State in the Upper Tribunal.
The appeal was heard on 29 January 2016 by a Tribunal comprising Mr Mark Ockelton (the Vice-President of the Upper Tribunal) and UTJ Martin. The parties were again represented by Mr Pipe and Mr Wilding. By a decision promulgated on 19 May 2016 the Secretary of State's appeal was dismissed. Again, I will return to the Tribunal's reasoning in due course.
This is an appeal against that decision. The application for permission initially came before me on the papers. I had some difficulty identifying the true basis of the appeal from the pleaded grounds and directed an oral hearing. In advance of that hearing Ms Anderson filed amended grounds of appeal and skeleton argument. After hearing submissions on the basis of those amended grounds I gave permission. I gave a short judgment giving my reasons for doing so, in which I made some observations with the aim of elucidating the issues and drawing attention to some difficulties.
THE 2014 DECISION LETTER
The structure of the 2014 decision letter is as follows.
Paras. 5–9 rehearse the fact that the 2011 decision had found the Respondent to be...
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