How should the Home Secretary deal with asylum seekers who are excluded from the protection of the Refugee Convention but cannot be deported?

Since 2011, the restricted leave policy has sought to address that question.

Restricted by name and restrictive by nature, the policy envisions short grants of leave, usually for six months at a time and with conditions. The objective is to prevent recipients from becoming established in the UK so that they are easier to deport as soon as conditions allow. The policy states that only in exceptional circumstances will a person who has been in receipt of restricted leave ever be granted indefinite leave to remain (ILR).

But what if there is no realistic prospect of removal even after years of restricted leave?

In R (Gornovskiy) v Secretary of State for the Home Department (Extradition and immigration powers) [2021] UKUT 321 (IAC), the Upper Tribunal quashed the Home Secretary’s decision to grant 12 months’ restricted leave to a man who has been on either restriced or discretionary leave since 2008.

Fugitive from Russian “justice”

Nikolay Gornovskiy, a Russian citizen, arrived in the UK in 2003 as a visitor. He was subsequently granted a work permit. When it expired, in 2008, he claimed asylum.

The basis of his asylum application was that he had been the chief executive of Mezhregiongaz, a subsidiary of Russian gas giant Gazprom. In that role he was responsible for siphoning money from the company, both for his own benefit and, crucially, also for President Vladimir Putin. He had since fallen out of favour with the Putin regime and an INTERPOL Red Notice was issued seeking his arrest and extradition.

The Home Office refused his asylum application on the basis that there were serious reasons – based on his own admissions – to believe that Mr Gornovskiy had committed a serious, non-political crime before coming to the UK. Mr Gornovskiy was therefore excluded from the protection of the Refugee Convention. He was instead granted six months’ discretionary leave on the basis that it would be a breach of his Article 3 rights to remove him from the UK.

The Russian state continues to pursue Mr Gornovskiy, describing him as a “fugitive from justice”. He has been allowed to stay in the UK, but only on short periods of discretionary and restricted leave.

Indefinite leave to remain denied

In April 2019, Mr Gornovskiy applied for indefinite leave to remain. In support of his application, he included an expert report from John Lough of Chatham House:

Mr Lough opined that the criminal proceedings against the applicant were political and that he could not possibly expect to receive a fair trial… there was a risk of torture in pre-trail detention.

The Home Office refused Mr Gornovskiy’s application for ILR, instead granting another 12 months’ restricted leave. The decision letter stated “it is anticipated conditions will change to allow you to return safely to Russia in the future”.

Decision to refuse ILR quashed

The Upper Tribunal quashed the Home Secretary’s decision, finding she had given no reasons for rejecting Mr Lough’s evidence. It was therefore irrational to refuse ILR on the basis that anticipated conditions in Russia would change in the short term:

… it was Mr Lough’s conclusion that no such change was foreseeable, as a result of which the applicant’s removal was not foreseeble. In failing specifically to address that evidence, I am satisfied that the respondent erred in law. I am also satisfied that she reached an irrational conclusion (ie, one which was wholly unsupposed by the evidence)…

This decision forms part of a small body of case law on withholding ILR from people with restricted leave. In the leading cases of R (MS and MT) v Secretary of State for the Home Department [2017] EWCA Civ 1190 and R (Kardi) v Secretary of State for the Home Department [2014] EWCA Civ 934, the applicants failed to have the refusal quashed. But they concerned people in distinctly different circumstances to Mr Gornovskiy.

MT and Kardi were both Tunisian nationals convicted in France of terrorism offences before coming to the UK. MS was an Indian national who, the Special Immigration Appeals Commission found, had been involved in terrorism. With Mr Gornovskiy, there is “no suggestion that there is any risk to national security, or of any future criminality”.

While the Upper Tribunal rejected the submission that the Home Office erred in failing to evaluate Mr Gornovskiy’s specific conduct, it noted that the decision to grant or refuse ILR should be a holistic one. This point surely carries force in cases involving people who have fallen out of favour with corrupt regimes and are being pursued for alleged financial wrongdoing.

This article was co-authored with Sharmistha Michaels. It was originally published in October 2021, when the judgment was still unreported, and has been reissued to reflect the case being reported with an official headnote in December 2021.