MBT, R (on the application of) v The Secretary of State for the Home Department [2019] UKUT 414 (IAC)

[2019] UKUT 00414 (IAC)Date 13 November 2019
In the Upper Tribunal
(Immigration and Asylum Chamber)
Before
THE HON. MR JUSTICE NICOLUPPER TRIBUNAL JUDGE STEPHEN SMITH
Between
The QueenApplicant(on the application of MBT)Applicant(ANONYMITY DIRECTION MADE)ApplicantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondentMs A. Weston, QC, and Stephen Clark, Counsel, instructed by Birnberg Peirce for ApplicantMs J. Anderson, Counsel, instructed by the Government Legal Department for Respondent(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 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
[1]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.[2]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.[3]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.[4]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.[5]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

[6]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.[7]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.[8]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.[9]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 liable to serve lengthy periods of imprisonment in Tunisia, with the corresponding risk of repeated mistreatment in detention.[10]Following his initial grant of discretionary leave to remain, the applicant was granted further, repeated, periods of discretionary leave. However, there was a delay in the respondent’s consideration of the application (also for indefinite leave to remain) he submitted on 30 July 2009, which led him to bring judicial review proceedings to challenge the respondent’s inaction. That was in 2013. Those proceedings were settled by consent. The respondent took a decision on the application, granting the applicant his first period of restricted leave, for six months, on 21 August 2013.[11]The applicant experiences a range of debilitating medical conditions. He suffers from symptomatic epilepsy, and has around two seizures each week, during which he experiences a lack of muscle tone, falls to the floor, and can lose control of bodily functions. He has severe shoulder and back pain, which he experiences all the time. The shoulder pain is caused by a herniated disc in his cervical spine which dates to what has been described as a “very violent torture injury”. He can support himself when walking, but when doing so he has to hold his left arm very still in order to avoid jarring it and causing sudden pain to his left shoulder and neck. He has sciatic referral to the left leg, making walking and sitting painful and exhausting. He suffers from severe secondary headaches, which stem from numerous historical head injuries. His neck rotation is restricted to the left, even for short periods of time. He has high blood pressure.[12]The applicant has been diagnosed as suffering from severe post-traumatic stress disorder. He displays symptoms of flashbacks, intrusive memories, noise sensitivity, claustrophobia, dramatic nightmares, anxiety attacks, sleeplessness, and panic attacks. These are attributable to the major catastrophic trauma arising from the detention and torture he experienced in Tunisia, and the very severe ongoing stress and uncertainty as to the length of his residence and immigration status in this country. He displays symptoms of depressive disorder, experiencing pervasive feelings of despair, worthlessness, appetite and sleep disturbance, negative thoughts and very severe intrusive preoccupations, melancholic depressive ruminations, beliefs that he has destroyed other people’s lives, suicidal ideation, self-harm, and depressive hallucinations. These factors are set out in the report of Dr Bell, Consultant Psychiatrist, dated 18 April 2019, and letters dated 1 August 2017 from Lucy Bracken, a Registered Osteopath with the Helen Bamber Foundation, and 3 November 2017 from Mark Fish, a Senior Psychotherapist, also with the Helen Bamber Foundation.[13]In addition to the currently accepted Article 3 risk the applicant faces from the Tunisian authorities, he contends that his health conditions are such that his removal would be prevented by Article 3 ECHR in any event. He maintains that his private and family life in this country are such that his removal is now, and always will be, disproportionate under Articles 3 and 8 of the ECHR. Since his arrival in this country, he has not engaged in any conduct which suggests that he represents any form of ongoing security risk or threat. While he does not accept that he was fairly convicted in France, he highlights that, in any event, he has led a blameless life in this country. He has integrated. His children are British. He has lived here for 20 years.

Earlier procedural history

[14]The applicant has previously challenged earlier decisions of the respondent under the RL policy. In a decision handed down on 4 September 2015, this Tribunal (Dove J. and Upper Tribunal Judge Gill) dismissed an application for judicial review brought by the applicant in relation to an earlier decision of the respondent, dated 21 August 2013, to refuse to grant him indefinite leave to remain, granting him only a further period of restricted leave, with conditions. In the course of that judicial review application, the applicant also challenged the respondent’s RL policy itself. See R (on the application of MS) v Secretary of State for the Home Department (excluded persons: Restrictive Leave policy) IJR [2015] UKUT 00539 (IAC). The Upper Tribunal’s decision was considered by the Court of Appeal which, in a judgment dated 31 July 2017, dismissed the appeal, and found the RL policy as it then existed to be lawful: see MS (India) and MT (Tunisia) v Secretary of State for the Home Department[2017] EWCA Civ 1190, [2018] 1 WLR 389. The Court of Appeal made a number of observations about the circumstances when those subject to the RL policy may be entitled to indefinite leave to remain, to which we shall return.

The decisions under challenge

[15]The time-limited nature of restricted leave is such that the respondent regularly takes fresh decisions to confer a further period of restricted leave upon the expiry of the previous period.[16]The 2018 decision granted the applicant six months’ restricted leave from 31 August 2018, with conditions in the following terms:
“a) You must reside at your current address and notify the Secretary of State to any change of address; b) You must not take up employment, paid or unpaid, or engage in any business or profession without the prior written consent from the Secretary of State; c) You must not enrol on a study course, either classroom-based or remote, without the prior written consent from the Secretary of State; and d) You must report to an immigration reporting centre every two months.”
The 2018 decision refused the applicant’s application for indefinite leave to remain. It considered that, in view of the applicant’s exclusion from the Refugee Convention on the grounds of his involvement in terrorism in France, the public interest in his removal remained, and that he should not be allowed to settle here.[17]The applicant was granted limited permission to apply for judicial review on the papers by Upper Tribunal Judge Jackson to challenge the application of the RL policy in the 2018 decision. Permission was granted on two grounds:a. Ground 1: the decision breaches article 8 ECHR, in that the respondent failed to undertake a sufficiently individual and particularised assessment of the relevant factors in the applicant’s case (in accordance with the guidance given by the Court of Appeal in MS (India)) and the decision is a disproportionate interference with the private and family life of the applicant, his wife and British children in breach of article 8 ECHR and section 6 of the human rights act 1998;b. Ground 4: the decision is irrational, in that the respondent took into account irrelevant matters and/or failed to take into account relevant matters.[18]Judge Jackson refused permission in relation to the following two grounds. The applicant has applied to renew his application for permission to bring judicial review proceedings on these grounds orally:a. Ground 2: the decision breached sections 15 and 29 of the Equality Act 2010 (“the EA 2010”) (taken with or without the duty to make reasonable adjustments contained in section 20), and/or Article 14 of the ECHR, taken with Article 8, in that the respondent treated the applicant, his wife and children, less favourably on account of the applicant’s disability, or applied the RL policy in such a way as to impact the applicant disproportionately because of his disability;b. Ground 3: the RL policy breached the public sector equality duty contained in section 149 of the EA 2010.[19]The 2019 decision was made in response to an application dated 26 February 2019 for indefinite leave to remain and the application was supported by additional written representations submitted in March and April. The applicant’s representations placed extensive reliance on the report of Dr Bell. That report considered the matters relating to the applicant’s mental health outlined in paragraph 12, above. The representations featured further and more detailed reasons as to why it was contended that the applicant would not be “removable”.[20]The 2019 decision refused to grant the applicant indefinite leave to remain, but instead granted him 12 months’ restricted leave, with conditions materially identical to those in the 2018 decision, with one distinction. The 2019 decision reduced the reporting requirements from every two months in the 2018 decision to “4 times per year i.e. every three months”.[21]The grounds upon which the applicant seeks permission to bring judicial review proceedings against the 2019 decision are based on those initially advanced against the 2018 decision, with two additional grounds. The manner in which the total six additional grounds have been set out in the applicant’s statement of facts and grounds and his skeleton argument could have been clearer, as the applicant did not set out separate and fresh grounds of challenge, but merely sought to adopt and apply (presumably with the necessary implied modifications) grounds 1 to 4 in relation to the 2018 decision, with two additional grounds specific to the 2019 decision. For ease of reference, having clarified the grounds with Ms Weston at the hearing, we will set out all six grounds in their entirety:a. Ground 5: the respondent irrationally failed to take into account and address by way of adequate reasoning relevant matters, in particular the representations and material available to the respondent concerning the applicant’s removability, and the report of Dr Bell;b. Ground 6: the respondent breached her duty of inquiry concerning the applicant’s risk on return;c. Ground 7 (original ground 1): the decision breaches article 8 ECHR, in that the respondent failed to undertake a sufficiently individual and particularised assessment of the relevant factors in the applicant’s case (in accordance with the guidance given by the Court of Appeal in MS (India)) and the decision is a disproportionate interference with the private and family life of the applicant, his wife and British children in breach of article 8 ECHR and section 6 of the human rights act 1998;d. Ground 8 (original ground 2): the decision breached sections 15 and 29 of the Equality Act 2010 (“the EA 2010”) (taken with or without the duty to make reasonable adjustments contained in section 20), and/or Article 14 of the ECHR, taken with Article 8, in that the respondent treated the applicant, his wife and children, less favourably on account of the applicant’s disability, or applied the RL policy in such a way as to impact the applicant disproportionately because of his disability;e. Ground 9 (original ground 3): the RL policy breached the public sector equality duty contained in section 149 of the EA 2010.f. Ground 10 (original ground 4): the decision is irrational, in that the respondent took into account irrelevant matters and/or failed to take into account relevant matters.[22]Thus grounds 5 and 6 are new. Grounds 7 to 10 replicate the original grounds 1 to 4, applied to the 2019 decision. The only grounds upon which the applicant has permission to challenge the 2018 decision are grounds 1 and 4. He needs permission to pursue all remaining grounds. He requires permission on all his grounds to challenge the 2019 decision. As such, the hearing before us was a substantive hearing in relation to grounds 1 and 4 of the 2018 decision, combined with a rolled up hearing in relation to the remaining grounds and a rolled up hearing in relation to the 2019 decision.

Cited in 3 later judgments