The Queen (on the application of Kardi) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Fulford,Lord Justice Vos |
| Judgment Date | 10 July 2014 |
| Neutral Citation | [2014] EWCA Civ 934 |
| Docket Number | Case No: C4/2013/2670 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 July 2014 |
[2014] EWCA Civ 934
Lord Justice Richards
Lord Justice Fulford
and
Lord Justice Vos
Case No: C4/2013/2670
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
His Honour Judge Purle QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Ian Dove QC and Abid Mahmood (instructed by Fountains Solicitors) for the Appellant
Jim Tindal (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 7 May 2014
The appellant is a national of Tunisia, now 42 years old, with a conviction in France in 1995 for an offence of terrorism. He has been in the United Kingdom since 2000. His claim to asylum in this country was rejected on the ground that he was excluded by Article 1F of the Refugee Convention from the protection of that Convention. It was found, however, that he would be at risk of treatment contrary to Article 3 ECHR if removed to Tunisia. In November 2008 he was therefore granted 6 months' discretionary leave to remain. In May 2009, before the expiry of that 6 month period, he applied for further leave to remain. There was a long delay in reaching a decision on the application. Eventually, however, in March 2012, he was granted six months' discretionary leave to remain subject to restrictions as to employment, residence, reporting and study. That decision was taken in accordance with a policy introduced by the Secretary of State on 2 September 2011 concerning the grant of restricted discretionary leave in Article 1F cases.
In May 2012 the appellant brought a claim for judicial review of the March 2012 decision. The claim was heard by His Honour Judge Purle QC, sitting as a judge of the High Court, and was dismissed by him in a judgment given on 23 August 2013. Permission to appeal to this court was granted by the judge himself.
There are broadly two grounds of appeal: (1) that the delay in reaching a decision on the May 2009 application for further leave to remain rendered the March 2012 decision unlawful, and (2) that the restrictions imposed by the March 2012 decision are contrary to the appellant's rights under Article 8 ECHR. In granting permission to appeal the judge observed inter alia that the case raised important points on a relatively new policy introduced by the Secretary of State affecting those guilty of serious crime. It should be noted, however, that the appeal involves no challenge to the validity of the policy on restricted discretionary leave, but only to the way it was applied in the particular circumstances of the appellant's case. The policy itself admits of considerable flexibility in its application.
Before considering the grounds of appeal I need to give a fuller account of the relevant facts.
The facts
In 1994 the appellant was arrested in France in possession of weapons and ammunition intended to be transported to Tunisia for use in an armed coup against the government. This resulted in his conviction in 1995 for an offence of terrorism. He was sentenced to 5 years' imprisonment but was released from prison in 1998. In March 2000 he entered the United Kingdom on a false French passport and claimed asylum.
After a long delay, his claim to asylum was refused in April 2008. He appealed against the decision to the Asylum and Immigration Tribunal ("the AIT") on asylum, humanitarian protection and human rights grounds. By a decision dated 4 August 2008, the AIT dismissed the asylum appeal on the basis that, as the Secretary of State had contended, Article 1F of the 1951 Refugee Convention operated to exclude the appellant from the protection of that Convention, in that the conduct in respect of which he had been convicted in France amounted to acts contrary to the purposes and principles of the United Nations. The humanitarian protection appeal was dismissed for similar reasons. The human rights appeal, however, was allowed, primarily on Article 3 grounds. The AIT's reasons for that aspect of the decision were these:
"81. The position that I have to consider, is whether the Tunisian authorities would be aware that the Appellant was convicted in France of attempting to smuggle weapons to Tunisia so that they could be used in an armed coup. I accept Professor Joffé's evidence that the authorities in Tunisia would be aware of this conviction ….
82. … Professor Joffé in his report believes that the Appellant would be arrested on arrival in Tunisia …. Professor Joffé states at paragraph 113 of his report:
'He will then face trial. As suggested above, this may well take place in the military court system where standards of the administration of justice are even poorer than they are in the civilian court system. He is virtually certain to be condemned to a prison term of significant length ….'
…
84. I have considered the objective evidence in relation to the treatment of individuals detained in Tunisia, who are suspected of opposing the government ….
…
86. The article [by Amnesty International] also states that there have been returnees to Tunisia suspected of involvement in terrorism, who have suffered arbitrary arrest and detention, torture or other ill treatment, and blatantly unfair trials.
…
88. Taking into account the objective evidence which in my view indicates a real risk of torture and inhuman and degrading treatment, together with Professor Joffé's expert report, it is my view that there would be a real risk of a breach of Article 3 if the Appellant were returned to Tunisia.
89. Because of my findings in relation to Article 3, I also find that there would be a breach of Article 8. This is not because I find that the Appellant has established family life in the United Kingdom as I do not make such a finding. He has established a private life since arriving in March 2000, and I find that if removed to Tunisia, then he would not be able to re-establish a private or family life, because of my findings that he would be detained with a real risk that he would be subjected to torture or inhuman or degrading treatment."
There was no appeal against the AIT's decision. The consequence of the decision was that the appellant could not be removed to Tunisia until conditions in that country changed sufficiently to remove the risk of treatment contrary to Article 3.
In those circumstances the appellant was granted discretionary leave to remain in the United Kingdom, valid from 10 November 2008 to 11 May 2009. The grant was in accordance with the Secretary of State's then existing policy on discretionary leave which provided:
"Where an applicant would have established that they were a refugee under the 1951 Convention or eligible for a grant of Humanitarian Protection but for the fact that they were excluded from that protection, they should normally be granted Discretionary Leave for 6 months …."
On 7 May 2009, prior to the expiry of the six month period of leave, the appellant's solicitors applied on his behalf for an extension of leave "for the maximum period permitted". In response to an enquiry by the solicitors, a letter dated 17 July 2009 from the UK Border Agency stated that the appellant's case would be dealt with "in due course". A chasing letter from the solicitors in early January 2010 prompted a response dated 2 February 2010 to the effect that the appellant's case was "among the backlog of older cases, which the UK Border Agency is currently working to conclude", and inviting representations if there were considered to be truly exceptional compassionate circumstances that justified taking his case out of turn. No such representations were made. The solicitors did, however, send a letter dated 19 May 2010 notifying a change in the appellant's address and seeking an explanation of the continued delay.
On 2 September 2011 the Secretary of State published a new policy concerning the grant of discretionary leave to persons excluded by Article 1F of the Refugee Convention from eligibility to refugee status. The policy, entitled "Article 1F – Restricted Discretionary Leave", remains in force. Its opening section contains the following summary:
"1.4 Summary Policy Statement
With effect from 2 September 2011, all cases excluded from the protection of the Refugee Convention by virtue of Article 1F but who cannot be immediately removed from the UK due to Article 3 of the European Convention of Human Rights will be subject to a new, tighter restricted leave policy. Such cases should usually only be granted Restricted Discretionary Leave to remain for a maximum of six months at a time, with some or all of the following restrictions:
— a condition restricting the person's employment or occupation in the United Kingdom;
— a condition restricting where the person can reside;
— a condition requiring the person to report to an immigration officer or the Secretary of State at regular intervals; and
— a condition prohibiting the person studying at an education institution.
…
This policy applies to all relevant individuals whether they are seeking leave or renewal of leave to remain, including cases in which a previous grant of leave to remain was for a period longer than six months.
The power to attach conditions to leave is provided by s.3(1)(c) Immigration Act 1971. A person who knowingly fails to observe a condition of their leave commits an offence by virtue of s.24(1)(b)(ii) Immigration Act 1971. Where appropriate, this policy will be enforced by the prosecution of individuals who do not comply with the conditions of their...
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