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Judicial review challenge to restricted leave policy fails


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The Upper Tribunal has dismissed a judicial review of the restricted leave policy. This policy governs the grant of leave to remain in the UK to people who the Home Office wishes to remove but cannot because it would breach the European Convention on Human Rights.

The restricted leave policy states that indefinite leave to remain will only be granted in exceptional circumstances, even after long periods of residence in the UK. Instead, it requires officials to grant short periods of leave to remain with highly restrictive conditions. The intention of the policy is to prevent serious foreign national criminals, like convicted terrorists, from integrating into UK society while they await removal.

While that might sound like a reasonable idea, in practice it means that many people whose undesirable conduct may have taken place decades ago are stuck in limbo. Nick recently described those affected as “irremovables” and summed up their plight as follows:

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.

In R (MBT) v Secretary of State for the Home Department (restricted leave; ILR; disability discrimination) [2019] UKUT 414 (IAC), the Upper Tribunal was presented with a case which, at least at first glance, appeared to justify some compassion.

Convicted in France two decades ago

MBT has lived in the United Kingdom since 1999. His conduct in this country has been blameless and he has several British children. He was tortured in Tunisia, his country of nationality, because of his political opinions. As a result, the 53 year old suffers from what the tribunal described as a “range of debilitating medical conditions” including epilepsy and severe post traumatic stress disorder.

He was convicted in France in 1998 of terrorism offences. On that basis, the Home Office has sought to deport MBT for twenty years despite accepting that, during that entire period, removal would have breached the human rights convention.

MBT sought judicial review of the decision to refuse to grant him indefinite leave to remain. He claimed that the continuing uncertainty about his immigration status was causing a deterioration to his health.

Tough guidance on Article 8

The Upper Tribunal accepted, in light of recent Court of Appeal authority, that MBT’s claim engaged Article 8 of the European Convention on Human Rights — and that in some circumstances Article 8 would require a grant of indefinite leave to remain. It considered the proportionality of the refusal in this case and gave guidance which confirms that it will be very difficult for anyone to successfully challenge the refusal of indefinite leave to remain under the restricted leave policy.

On MBT’s residence of over 20 years in the UK, the Upper Tribunal simply noted that:

 A considerably longer period would be required, in light of the public interest, public protection and safe haven objectives of the RL policy.

On MBT’s refusal to accept his conviction because he alleges that there were procedural irregularities at trial:

Although in a statement prepared for these proceedings the applicant seeks to renounce terrorism and underline his commitment to achieving political change through peaceful and democratic means, those are, with respect, empty words in light of his denial of responsibility for his offences. There is no suggestion in the medical evidence that the applicant’s reasoning is impaired to such an extent that he lacks the capacity to demonstrate such reform.

On proportionality in light of the medical evidence and the best interests of MBT’s children:

While this is a human rights decision, necessitating us deciding for ourselves where we consider the proportionality balance to lie, it is nevertheless important for us to take into account the respondent’s views. That is not to say – as the Court of Appeal rejected in MS (India) at [119] – that the Secretary of State’s views are “unchallengeable”. Rather it is to ascribe the weight that is appropriate to the Secretary of State’s views concerning the public interest reflected in the objectives of the RL policy. Taking into consideration the institutional competence of the Secretary of State to make finely balanced judgements about the public interest and the United Kingdom’s reputation as a guardian of the international rule of law, we consider that the approach of the 2019 decision to the medical evidence is lawful.

Too much deference?

The Upper Tribunal’s conclusion on Article 8 is defensible, but the determination as a whole reads as though the tribunal took an excessively deferential approach towards the Home Office view.

The section of the judgment addressing an irrationality challenge to the decision even relies on the concept of the “margin of appreciation”, a term used in European human rights law to describe the deference accorded by the European Court of Human Rights to national courts and authorities. It has no place when considering an irrationality challenge.

Equality Act not applicable

The Upper Tribunal also rejected a challenge to the decision relying on the Equality Act 2010. Ingeniously, counsel for MBT sought to argue that, notwithstanding the provision which exempt refusals of immigration leave from the scope of the Equality Act 2010, the Act applies in this context. That was because “the decision under consideration was to grant leave, rather than to refuse it”.

Unfortunately, the Upper Tribunal decided that the grant of limited leave is just an ancillary decision to the refusal of indefinite leave to remain and therefore falls within the immigration exemption of the Equality Act 2010. The Court of Appeal might take a different view. Statutory provisions which exclude broad principles necessary for the rule of law should be read narrowly and, on its face, decisions to grant a form of leave are not excluded from the scope of the Equality Act.

The official headnote

(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.

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Alex Schymyck

Alex Schymyck

Alex is a barrister at Garden Court Chambers