Tanvir Babar v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Sir Patrick Elias,Lord Justice Singh,Lady Justice Arden |
| Judgment Date | 01 March 2018 |
| Neutral Citation | [2018] EWCA Civ 329 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2016/2570 |
| Date | 01 March 2018 |
[2018] EWCA Civ 329
Lady Justice Arden
Lord Justice Singh
and
Sir Patrick Elias
Case No: C5/2016/2570
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the UPPER TRIBUNAL (Immigration & Asylum Chamber)
DEPUTY UPPER TRIBUNAL JUDGE SYMES
IA/31681/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Julie Anderson (instructed by Government Legal Department) for the Appellant
Mr Zane Malik (instructed by Malik Law Chambers) for the Respondent
Hearing date: 1 February 2018
Judgment Approved
The Respondent is a national of Pakistan, born on 17 th March 1961. He entered the UK at some point during 2000 and 2001 and claimed asylum on 29 January 2001. His application was refused but on appeal it was found that although he should not be granted asylum, his removal would be a breach of Article 3 ECHR. Accordingly, he was granted exceptional leave to remain. We have not seen that ruling but it appears that the adjudicator of the old Immigration Appellate Authority accepted that the Respondent had been granted bail in Pakistan with respect to some kind of criminal offence, and that if returned to Pakistan there was a real risk that he would be detained and thereafter subjected to inhuman or degrading treatment due both to the prison conditions and the fact that there was a likelihood of mistreatment by the police and prison guards.
The precise history of his subsequent applications is not clear. However, it seems that he made an application for indefinite leave to remain (“ILR”) outside the rules in October 2005 but this was rejected by a decision made in October 2008. The basis of that decision was that he was excluded from the scope of the Refugee Convention because there were serious reasons for believing that he had been a party to serious criminal wrongdoing, namely crimes against humanity. Article 1F of the Convention provides that the provisions 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….”
Reports from the US State Department and Human Rights Watch noted that the police in Pakistan were highly politicised and routinely and systematically used brutal investigation procedures including torture to obtain confessions, and some suspected criminals were killed. Mr Babar had been in the police for some seventeen years and ended up commanding a squad of 20–30 people in the anti-narcotics division. He himself admitted in interview to beating and threatening arrested persons in order to obtain information and to permitting those under his command to do so. The Secretary of State was satisfied that this constituted a pattern of widespread and systematic crimes against the civilian population which satisfied the definition of crimes against humanity. Mr Babar was therefore excluded from the protection of the Geneva Convention by Article 1F(a) and could claim neither asylum nor humanitarian protection.
The fact that he was excluded from refugee status did not mean that he could be returned to his country of origin if to do so would infringe his rights under the ECHR. The Secretary of State accepted that this would be the position here. He would be at risk of article 3 ill treatment if returned either from the authorities or fellow prisoners. He was given discretionary leave to remain for six months. A timely application for further leave was made and he was granted further leave to remain by way of six months' restricted leave.
On 17 th September 2012 the Respondent made an in-time application for ILR pursuant to paragraph 276B of the Immigration Rules which permits an application on the basis of 10 years' lawful residence. It was not disputed that he satisfied the requirement of being lawfully in the country for ten years. The Respondent's wife and three children had followed him to the UK and had already been granted ILR. The Secretary of State requested further information about any human rights claim Mr Babar might wish to make under article 3. Mr Babar responded in a short statement in which he claimed still to fear that he would be detained and ill treated if returned to Pakistan. This was despite the fact that in his application form for indefinite leave he disclosed the fact that he had returned to Pakistan for holidays twice in 2009 and again on three occasions in 2012, in each case without any difficulty and without the authorities showing any interest in him.
The application for indefinite leave was essentially based on the fact that he had been in the UK without incident for 14 years; that he had worked hard and not been a drain on public funds; and that he had very close family ties with his wife and his children, who were at school and university.
On 18 July 2014 the Secretary of State refused the application and simultaneously made a decision to remove the Respondent to Pakistan. The Secretary of State took the view that in the light of the serious criminal conduct there was a strong public interest in removal which was not outweighed by other considerations. The article 3 claim was rejected on the grounds that Mr Babar had been able to return to Pakistan without the authorities showing any interest in him. He would not have returned had he feared article 3 ill treatment, and the authorities would have picked him up had they wished to do so.
Mr Babar appealed against the refusal to grant indefinite leave, but not the rejection of the article 3 claim.
The relevant law
This case concerns the application of rule 276B to someone who has been given restricted leave to remain because it would be contrary to his human rights to remove him.
Article 276B, so far as is relevant to this appeal, is as follows:
“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) 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) age; and
(b) strength of connections in the United Kingdom; and
(c) personal history, including character, conduct, associations and employment record; and
(d) domestic circumstances; and
(e) compassionate circumstances; and
(f) any representations received on the person's behalf; and
(iii) the applicant does not fall for refusal under the general grounds for refusal.”
Paragraph 276D provides that “leave to remain is to be refused if the Secretary of State is not satisfied that each of the requirements of paragraph 276B are met.”
Paragraph 276B(ii) is poorly drafted; the words “there are no reasons why” are confusing. There will often be something in the character or conduct of the applicant which, taken on its own, would constitute a reason why it would be undesirable to grant ILR. But it is well established that rules of this nature should be read sensibly, recognising that they are statements of the Secretary of State's administrative policy (see the observations of Lord Browne JSC in Mahad v Entry Clearance Officer [2009] UKSC 16; [2010] 1 WLR 48, para. 10) and the paragraph plainly envisages that there will be cases where, assessing the factors as a whole, it would not be in the public interest to refuse indefinite leave even though some factors may point in favour of refusing it. A recent policy statement from the Secretary of State issued to staff and entitled “Long Residence” confirms that this is the correct approach. When dealing with the public interest it states:
“You must assess the factors in paragraph 276B(ii) to decide whether a grant of indefinite leave would be against the public interest. You must look at reasons for and against granting indefinite leave using the factors listed and, where necessary, weigh up whether a grant of indefinite leave would be in the public interest.”
If, contrary to my view, it could be said that there is any real ambiguity about the proper construction of paragraph 276B(ii), it would be appropriate to interpret it in accordance with this published policy, given that it is the construction which is more favourable to the applicant: see Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568 paras. 42–43 per Jackson LJ.
Where there are aspects of character or conduct which tell against granting ILR, the weight to be given to those factors is likely to depend heavily upon the nature of the conduct and character in issue. Persons who are excluded from the Refugee Convention by Article 1F because they are reasonably suspected of having committed serious crimes could expect to be refused any leave to remain at all save where to remove them would contravene their human rights. In order to safeguard those rights, they are given discretionary leave to remain. Over the years there have been a series of policies regulating their situation. These policies were considered in some detail by Underhill LJ, giving the judgment of the Court of Appeal in MS (India) v Secretary of State for the Home Department [2017] EWCA Civ 1190; [2018] 1 WLR 389 paras. 11–36. At the time of the hearing before the FTT the relevant policy was the 2015 Asylum Policy Instruction which came into effect on 23 January 2015. It notes that usually someone falling within this category should be given only restricted...
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