The Court of Appeal in Tanvir Babar v Secretary of State for the Home Department [2018] EWCA Civ 329 dealt with the application of Immigration Rule 276B. The court highlighted the tensions between the Home Office policy, the application of the Immigration Rule and the weight that needs to be awarded to the public interest in such cases.

Ultimately the judgment reiterates that “compelling circumstances” are necessary to justify a departure from the general rule that people who are excluded from the protection of the Refugee Convention because of crimes against humanity should not be granted indefinite leave to remain.

Background to the case

Mr Babar is a national of Pakistan who claimed asylum in 2001. His claim was refused but on appeal it was found that his removal would be a breach of Article 3 of the European Convention on Human Rights.

In Pakistan Mr Babar had been a police officer and commanded a squad of 20-30 people in the anti-narcotics division. He admitted to beating and threatening people in interrogation. In light of this information, when in 2005 Mr Babar made an application for indefinite leave to remain, the Secretary of State refused the application stating that Mr Babar was excluded from the Refugee Convention by virtue of Article 1F.

His removal was not pursued as this infringed his Article 3 rights due to a risk of ill treatment from the Pakistani authorities and fellow prisoners. He was thus granted six months’ discretionary leave to remain.

By 2012 Mr Babar had acquired 10 years’ lawful residence in the UK and made a new application for indefinite leave to remain, this time under paragraph 276B of the Immigration Rules. This states:

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.

The application was refused and a decision to remove was simultaneously made.

Policy unclear but legal test “unequivocal”

The Court of Appeal highlighted that the proper interpretation of the rule must be done in accordance with the relevant policy. The one in force at the relevant time was Restricted Leave version 1.0 (we are now on version 2.0).

At the outset of the policy, decision-makers were told that grants of indefinite leave to remain will only be in exceptional circumstances and will be very rare (paragraph 1.2.5). But at paragraph 4.12 it applied the more liberal principle stated by Collins J in N, R (on the application of) v SSHD [2009] EWHC 1581. Collins J envisaged that once 10 years’ leave to remain had been acquired, this would lead to settlement.

The court went on to consider the decision of Underhill LJ in MS (India) v SSHD [2017] EWCA Civ 1190 which gives a more restrictive reading of the policy:

Underhill LJ addressed the conundrum in his judgment in MS and concluded (para.39) that whilst the drafting of the clause was “extremely clumsy”.

“In my view the policy should be read as prescribing that ILR should, for all the policy reasons stated elsewhere in section 1, only in exceptional circumstances be granted to migrants who were excluded but irremovable. Para. 22 of Collins J’s judgment, and in particular the reference to a ten-year norm, is not being referred to as stating the usual rule but only as applicable in a case on exceptional facts such as those of N.”

The judgment goes on to conclude that:

Neither the FTT nor the UT had the benefit of Underhill LJ’s judgment when reaching their decision, but it lays down in unequivocal terms the appropriate test to adopt when applying public interest considerations to rule 276B adjudications in cases of this nature: there must be compelling circumstances to justify a departure from the general rule, namely that for those excluded from the Refugee Convention, the public interest in removal will be so strong that it would make granting indefinite leave to remain inappropriate. The observations by Collins J in N, if they are to be considered at all, must be read as Underhill LJ interpreted them.

The new version of the Restricted Leave policy says that the judgment in N has been superseded.

The commission of crimes against humanity do not necessarily and inevitably mean that indefinite leave to remain cannot be granted in any circumstances. But all relevant 276B factors will need to be considered and found to be sufficiently compelling.

The importance of the decision

For practitioners making or appealing such decisions it is imperative to make detailed submissions on residency, ties, personal character and compassionate circumstances for the client. An account of how the client has moved on from their past and has established themselves in the UK will be essential.

It is also worth noting that Restricted Leave version 1.0 has now been archived. Whilst considering such applications practitioners will need not only to consider the Long Residence policy but also the Exclusion (Article 1F) and Article 33(2) of the Refugee Convention policy.

As is stated in the past and present Home Office policies only a breach of Article 3 which is an absolute right will outweigh the public interest. For applications dealing with qualified rights. i.e. Article 8, only compelling compassionate circumstances will do.