Upper Tribunal (Immigration and asylum chamber), 2019-12-16, [2019] UKUT 414 (IAC) (R (on the application of MBT) v Secretary of State for the Home Department (restricted leave; ILR; disability discrimination))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Nicol, Upper Tribunal Judge Stephen Smith |
| Status | Reported |
| Date | 16 December 2019 |
| Published date | 27 February 2020 |
| Hearing Date | 13 November 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | restricted leave; ILR; disability discrimination |
| Appeal Number | [2019] UKUT 414 (IAC) |
In the Upper Tribunal
(Immigration and Asylum Chamber)
R (on the application of MBT) v Secretary of State for the Home Department (restricted leave; ILR; disability discrimination) [2019] UKUT 00414 (IAC)
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Heard at Field House |
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On 13 November 2019 |
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Before
THE HON. MR JUSTICE NICOL
UPPER TRIBUNAL JUDGE STEPHEN SMITH
Between
The Queen
(on the application of MBT)
(ANONYMITY DIRECTION MADE)
Applicant
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Applicant: Ms A. Weston, QC, and Stephen Clark, Counsel, instructed by Birnberg Peirce
For the Respondent: Ms J. Anderson, Counsel, instructed by the Government Legal Department
(i) A decision of the Secretary of State not to grant indefinite leave to remain to a person subject to the restricted leave policy (“the RL policy”) does not normally engage Article 8 of the European Convention on Human Rights. However, Article 8 may be engaged by a decision to refuse to grant indefinite leave to remain where, for example, the poor state of an individual’s mental and physical health is such that regular, repeated grants of restricted leave are capable of having a distinct and acute impact on the health of the individual concerned.
(ii) Once Article 8 is engaged by a decision to refuse indefinite leave to remain under the RL policy, the import of Article 8 will be inherently fact-specific, and must be considered in light of the criteria set out in MS (India) and MT (Tunisia) v Secretary of State for the Home Department [2017] EWCA Civ 1190. The views of the Secretary of State attract weight, given her institutional competence on matters relating to the public interest and the United Kingdom’s reputation as a guardian of the international rule of law.
(iii) To obtain indefinite leave to remain under the Immigration Rules on the basis of long (partially unlawful) residence in cases involving no suitability concerns, paragraph 276ADE(1)(iii), taken with paragraph 276DE, requires a total of 30 years’ residence. A person who satisfies paragraph 276ADE(1)(iii) following 20 years’ residence is merely entitled to 30 months’ limited leave to remain on the ten year route to settlement.
(iv) Paragraph 16 of Schedule 3 to the Equality Act 2010 disapplies the prohibition against disability discrimination contained in section 29 of the Act in relation to a decision to grant restricted leave that is taken in connection with a decision to refuse an application for a more beneficial category of leave in the circumstances set out in paragraph 16(3).
(v) To the extent that paragraph 16 of Schedule 3 to the Equality Act 2010 disapplies the prohibition against discrimination on grounds of disability, there is a corresponding modification to the public sector equality duty imposed on the Secretary of State by section 149 of the Act.
JUDGMENT
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This application for judicial review concerns the content and application of the respondent’s Restricted Leave policy (“the RL Policy”). The policy makes provision to grant short periods of limited leave to remain, with stringent conditions, to those who are, the policy states, “not welcome” in the United Kingdom and who would otherwise be deported or administratively removed, but due to “barriers” under the European Convention on Human Rights (“the ECHR”) they cannot be removed. The policy applies primarily to those excluded from the protection of the Refugee Convention, or otherwise not entitled to its protection, due to their commission of criminal or other reprehensible acts and, who, for similar reasons are debarred from Humanitarian Protection. Grants of so-called restricted leave are typically for 6 months at a time, and attract conditions intended to restrict the individual’s ability to establish a private life here, enable the respondent to monitor their presence and achieve a number of other objectives, to which we shall return.
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The nature of the RL policy means that recipients of restricted leave are subject to regular and renewed grants of short periods of limited leave to remain, in a process which can continue for many years. The applicant in this case has contended for some time that he should be granted indefinite leave to remain, instead of merely being granted repeated periods of restricted leave. The central issue is whether it was unlawful for the respondent to refuse to grant indefinite leave to remain to him, following his lengthy residence pursuant to many repeated periods of initially discretionary, and then later restricted, limited leave, in light of his health, family life, and the claimed diminishing likelihood of him ever being removed to Tunisia.
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The RL policy provides that indefinite leave to remain is only appropriate in “exceptional circumstances”, which, it states, are likely to be rare. It is the applicant’s case that his case is one of those rare, exceptional situations where he is entitled to indefinite leave to remain.
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There are two decisions under challenge. The first is dated 31 August 2018 (“the 2018 decision”); the second, 22 July 2019 (“the 2019 decision”). Each refused to grant the applicant indefinite leave to remain, but instead conferred limited restricted leave upon him.
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The 2019 decision was issued by the respondent the night before the substantive hearing concerning the 2018 decision was due to be heard on 23 July 2019. That necessitated an adjournment of that hearing. The Tribunal gave directions to the applicant to serve the additional grounds upon which he sought to challenge the 2019 decision. It was just and convenient to allow the 2019 decision to be challenged within the existing proceedings, rather than require the applicant to make a fresh application, which would potentially have resulted in a future substantive hearing being eclipsed (again) by a further grant of restricted leave, upon the expiry of that conferred by the 2019 decision. It was in those circumstances that the matter came before us sitting as a panel.
Factual background
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The applicant, MBT, is a citizen of Tunisia, born on 20 December 1966. He was detained and tortured by the Tunisian authorities for the membership of a political party in the late 1980s and early 1990s. The enduring adverse health impact that experience had on the applicant forms a significant part of his case for being granted indefinite leave to remain. It is common ground that the applicant cannot presently be removed to Tunisia due to the risk of further mistreatment at the hands of the authorities, although there is some dispute between the parties as to the prospects of that risk diminishing.
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Following his release from detention, the applicant fled Tunisia in 1991, intending to claim asylum in Spain. He was unable to reach Spain because, on 19 January 1998 he was convicted in France, along with a number of other Tunisian citizens, of terrorism related offences, following a lengthy period on remand. These offences included the possession and transportation of unauthorised weapons, unlawful entry to France, forgery of an official document, and association with other malfaiteurs. For these offences, the applicant was sentenced to a period of five years’ imprisonment, most of which he had already served, with the consequence that he was released shortly after he was sentenced. He was also subject to an expulsion order from France, and a 10 year re-entry ban. The applicant maintains that he did not receive a fair trial in France. He contends that he did not appeal against his conviction, for to have done so could have exposed him to the jeopardy of having his sentence increased retrospectively. His case is that he left France without challenging the conviction on purely pragmatic grounds. We, of course, must proceed on the basis that he was validly convicted of these offences in France.
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In May 1999, the applicant arrived in this country, clandestinely. He immediately claimed asylum. He declared his convictions in France. In July 2004, the respondent refused his claim for asylum, on the grounds that he was excluded from the Refugee Convention, under Article 1F(b) and (c) (respectively, the commission of a serious non-political crime outside the country of refuge, and being guilty of acts contrary to the purposes and principles of the United Nations). He was instead granted discretionary leave to remain, initially for a period of six months, under the relevant policy then in force. The RL policy was not in force at that stage. The first iteration of the RL policy came into force on 2 September 2011.
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The applicant also contends that he has been convicted and sentenced in absentia in Tunisia of a range of further offences. Although there is no suggestion that those convictions form the basis of the respondent’s decision to exclude the applicant from the Refugee Convention, or indeed that they could be categorised as “safe” pursuant to ECHR minimum standards, it is the applicant’s case that the mere existence of such convictions provides a further reason why his return to Tunisia is not, and never will be, feasible. The politically motivated convictions are evidence of his persecution at the hands of the Tunisian state, he contends. They will not be overturned. He remains...
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