The Home Office considers some foreign nationals living in the UK to be a threat to national security. Sometimes, to deport those individuals (as the government no doubt prefers) would be unlawful, because of how they would be treated on return to their country of origin.

Perhaps the most notorious example of this was in the Abu Qatada litigation. The European Court of Human Rights made a declaration that the preacher’s deportation to Jordan (where he would have faced a re-trial using evidence obtained by torture) would be a breach of Article 6.

In that case, then Home Secretary Theresa May obtained an undertaking from the Jordanians that no such tainted evidence would be used, and Abu Qatada was finally deported in 2013.

But what if no such undertaking can be obtained, and the baddies have to stay here?

Restricted leave policy

As so often, crushed between its international treaty obligations and what it would like to tell the Daily Mail, the Home Office crouches on the intersecting scrubland of political and legal acceptability, known in this case as the Restricted leave policy.

Government policy is to grant these persona non grata short periods of leave: usually six months at a time. If a human rights barrier to their removal is “resolved” (as the guidance delicately puts it), the individual can then be quickly sent home.

Although there is the theoretical possibility that a person in this position will be granted indefinite leave to remain, the policy states

there is no period of time after which a person subject to restricted leave will automatically or generally qualify for ILR … even if the person has been in the UK for a very long time.

In case this message wasn’t clear enough, the guidance also says that

Granting ILR would send a message that there is no longer any public interest in deporting or removing the person from the UK and would signal that the person is both established and welcome in the UK, this would be wholly contrary to the restricted leave policy.

In addition to short periods of leave granted, there are often restrictions on activities which can be undertaken, including prohibitions on employment or study, and continuing obligations to report to the Home Office.

The case of G

Last week the Court of Appeal considered the restricted leave policy in Secretary of State for the Home Department v G (Algeria) [2018] EWCA Civ 2493.

The claimant, G, is a wheelchair bound Algerian man with psychotic depression and a high risk of suicide. It was found in the case of BB v SSHD [2013] UKSIAC 39/2005 that the initial process of interrogation of those returned to Algeria – and for G in particular (see paras 51-57) – would result in a breach of his human rights.

Given G’s previous involvement with terrorism, he fell within the restricted leave policy. Before Mr Justice Collins in the High Court he succeeded in arguing, given that he could not be returned to Algeria in the foreseeable future and due to his particular circumstances, that he should be considered eligible for indefinite leave to remain.

The Secretary of State appealed to the Court of Appeal. In the intervening period the question of principle was settled by R (MS (India)) v SSHD [2017] EWCA Civ 1190, which also concerned the question of those previously involved in terrorism but who could not be removed due to concerns about how they would be treated upon return.

Essentially, the restricted leave policy was found not to be unlawful by Lord Justice Underhill, and there was no bright line point (ten years had been suggested) after which it might be said someone in this position became eligible for indefinite leave to remain.

In SSHD v G, overturning another decision by Collins J in the court below, the Court of Appeal’s judgment was again given by Underhill LJ and unsurprisingly arrived at the same view: the Secretary of State is under no obligation to grant to indefinite leave to remain to anyone under the restricted leave policy and its operation was not unlawful.

When are bygones bygones?

It is agreed in many of these cases that the individuals concerned are no longer a threat to national security. It is also agreed — or has been found by the courts — that they cannot be removed back to the countries from whence they came.

Whilst we may celebrate the fact that the UK government (having been dragged kicking and screaming through the courts) honours its international treaty obligations not to deport people where they would come to harm, the restricted leave policy seems a spiteful response.

Its subjects must exist from year to year, with no sense of permanence, in a miserable purgatory of repeated immigration applications, their status and activities in the UK almost entirely at the discretion of the Secretary of State.

The venom with which the policy objectives behind the policy are outlined in the guidance tend to suggest that discretion will rarely be exercised in favour of these irremovables.