MS & Anor v The Secretary of State for the Home Department

There are before the Court two connected appeals raising issues about the Secretary of State’s “Restricted Leave Policy” (“the RLR policy”). This is the policy governing the grant of leave to remain to asylum-seekers whose claims have been refused because they have committed particularly serious offences, or who are excluded from humanitarian protection, but whom it is impossible to remove. The first appeal is from a decision of the Upper Tribunal (Dove J and UTJ Gill) dated 4 September 2015 refusing applications for judicial review brought by two claimants, MS and MBT, in relation to the lawfulness both of the RLR policy generally and of particular decisions taken under it: I will refer to these as “the UT proceedings”. The second is from a decision of Collins J in the Administrative Court dated 9 December 2016 quashing a subsequent decision of the Secretary of State taken under the RLR policy in relation to leave to remain sought by MS: I will refer to these proceedings as “the MS2 proceedings”. Where it is necessary to refer to MS and MBT together I will call them “the Claimants”.

I will set out the facts of the Claimants’ cases, and the nature of their claims, in due course. For present purposes it is sufficient to give a bare outline as follows:

MS has been represented before us by Ms Stephanie Harrison QC and Ms Charlotte Kilroy, MBT by Ms Amanda Weston and the Secretary of State by Mr Robin Tam QC and Ms Julie Anderson. The representation was the same in the UT and the Administrative Court, save that Ms Anderson appeared on her own.

The identity of both Claimants was anonymised in the tribunals below and we have thought it right to continue that anonymity.

Article 1 of the Refugee Convention contains the basic definition of the term “refugee” and is thus the key to the substantive rights granted by it. But section F reads as follows:

“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a)

he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b)

he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c)

he has been guilty of acts contrary to the purposes and principles of the United Nations.”

There are substantially identically-worded exclusions – see articles 12 and 17 – in the so-called Qualification Directive, which establishes a regime for “humanitarian protection” in EU law: the Directive both incorporates the requirements of the Refugee Convention and to some extent widens the protected class through the medium of “subsidiary protection”. I will for convenience refer to the situations covered by heads (a) to (c) as situations where the person in question is guilty of “serious crimes”, though that is not quite accurate since conduct under head (c) may not be a crime, nor may he have been convicted.

I should also refer to a similar exclusion as regards the protection against refoulement granted by article 33 of the Refugee Convention (Footnote: ¹). Paragraph 2 of that article reads:

“The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”

I will likewise for convenience include this exclusion under the general rubric “serious crime”, though it covers also refugees who are a danger to national security.

The effect of those exclusion provisions, taken by themselves, is that where there are reasonable grounds for believing that a person is guilty of acts of the kind specified he may nevertheless be refused asylum and returned to a country where he is at serious risk of persecution or other serious harm. But that is overlain by the provisions of the ECHR, since it would be a breach of article 3 for him to be returned to a country where there was a real risk that he would be “subjected to torture or to inhuman or degrading treatment or punishment”. It is the interaction of these two regimes that produces the situation in which the Claimants find themselves. I shall refer to that situation as “excluded but irremovable” or “excluded”.

The basic provisions governing leave to enter the United Kingdom and leave to remain are to be found in section 3 of the Immigration Act 1971. The two which are relevant for our purposes are as follows:

The Secretary of State also from time to time makes statements of policy on matters not covered by the Immigration Rules, often in the form of “instructions” to case-workers. As long as they do not have the character of rules such policies do not fall within the terms of section 3 (2) and do not therefore have to be laid before Parliament. The question of when a policy or instruction amounts to a rule was considered by the Supreme Court in R (Alvi) v Secretary of State for the Home Department[2012] UKSC 33, [2012] 1 WLR 2208, to which I refer more fully at para. 89 below.

The grant of leave to enter or remain to asylum seekers is covered by Part 11 of the Rules, but applicants who are excluded from humanitarian protection fall outside the scope of those provisions. I need, however, to refer to Part 9, which sets out general grounds for the refusal of leave to enter or remain. These included, at paragraph 322 (2)-(12), “grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom should normally be refused”. One of those grounds, at (5), is

“the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct (including convictions which do not fall within paragraph 322(1C)), character or associations or the fact that he represents a threat to national security”

(Paragraph 322 (1C) grades convictions by recency and length of sentence.)

The position of persons who are excluded but irremovable is not addressed in the Immigration Rules. It has, instead, been dealt with by a series of policies. Immediately prior to the introduction of the RLR policy the relevant policy, which was issued in March 2003, was that governing the grant of “discretionary leave” for asylum-seekers who were not entitled to humanitarian protection (“the DL policy”). That replaced an earlier policy, of which we were not given details, covering “exceptional leave to remain”. The DL policy covered not only those who were excluded but irremovable but also (a) those who were not excluded but who were simply not entitled to humanitarian protection in the first place and (b) those who were irremovable for some reason other than article 3 of the ECHR. The DL policy was re-issued at various subsequent dates.

For present purposes I need only note the following features of the DL policy:

There have been various challenges at first instance to decisions taken under the DL policy as it affected persons who were excluded but irremovable, and in particular to the grant of leave only for six-month periods. I need only refer to two – R (N) v Secretary of State for the Home Department [2009] EWHC 1581 (Admin) 1581 and R (Mayaya and others) v Secretary of State for the Home Department [2011] EWHC 3088 (Admin), [2012] 1 All ER 1491. I take them in turn.

In N the claimant was an Iraqi national who came to this country in 1996 on a hijacked aircraft. Collins J did not have a full account of the facts before him, but he understood the position to be that the claimant had been part of a conspiracy with six others to hijack the aircraft but that he had had second thoughts before the actual hijack occurred and took no part in it. All seven were convicted: they relied on a defence of duress but the judge held it to be inadmissible in law. N was sentenced to two and a half years’ imprisonment. He did not appeal, but his co-defendants (who on the judge’s understanding were more culpable than him) appealed on the duress issue: their convictions were quashed and there was no re-trial. Collins J observed that that sequence of events will have left him with an understandable sense of grievance.

After a seven-year delay N’s claim for asylum was refused on the basis that he was excluded from humanitarian protection because of his conviction, but it was accepted that his return to Iraq would be in breach of his article 3 rights – in other words, he was excluded but irremovable. He was granted six months’ discretionary leave. At the expiry of that period he sought three years’ leave. In early 2009 that application was (after another inordinate delay) refused and he was granted only another six months.

Collins J quashed that decision. At paras. 20-22 of his judgment he said:

“20.

The policy applied by the Secretary of State is - as I think is made clear by what was granted - that for someone such as the claimant, that is to say someone who is able to remain here only because of the inability to return under the Human Rights Act, a leave of six months at a time is appropriate; appropriate of course if the individual behaves himself otherwise and so long as it remains unsafe for him to be returned.

21.

This policy relating to those who are not within the protection of the Refugee Convention because of Article 1 F (b) seems to me to be entirely reasonable. The rationale behind it I have not had spelled out before me, but it seems obvious that what is desired is to keep open the possibility of return and the need to consider at regular and relatively short intervals whether return can be effected because, as a general approach, those who would not qualify because of the commission of a serious offence should not generally be considered to be able to remain within this country. One can understand why that policy has been adopted.

22.

Accordingly, in principle, to award only six months is not in the least unreasonable. But the policy has, as it were, a cap. It is recognised that there will come a time when - provided the individual has behaved himself in this country - it would be proper to regard him as having put behind him, as it were, the original offending. Thus if someone has been here for ten years and subjected to a series of discretionary leaves for that period he will normally be able to remain here indefinitely. He will, after all, be expected by then to have made his life in this country, to have settled here, perhaps to have established family life here. The view is, again as it seems to me, entirely reasonably taken that generally speaking - and of course each case has to be considered on its own merits - such an individual will have leave to remain indefinitely and thus will be entitled to settle here.”

The statement in para. 22 that a person in the excluded but irremovable category who has been here for ten years, and behaved themselves, will normally be entitled to ILR is important for the issues in this appeal. It should be noted at this stage that it is not stated by Collins J as a proposition of law but rather as a statement of his understanding of the Secretary of State’s then policy.

The remainder of the case turned on the fact that, although N had been in the UK for over ten years, technically much of that period did not fall to be counted because he had been present without leave as a result of the delay in dealing with his initial claim. Collins J held that the decision was flawed because of a failure to take into account the fact that his “non-qualification” was mostly as a result of the Secretary of State’s own delay and directed that a fresh decision be taken. He observed, at para. 26:

“Whether that [decision] should result in an immediate grant of indefinite leave is not for me to say although it may be that it is very close to any reasonable borderline. There would have to be strong justification for a refusal to regard someone like the claimant - who has been here now for well over twelve years - to have to wait any longer before being granted settlement, provided of course that he still cannot be removed and that there is nothing against him other than the original conviction which has created all the difficulties for him.”

It can be fairly inferred from that passage that although, as I have said, Collins J’s earlier remarks were intended as a summary of the policy rather than a proposition of law that he would have regarded a policy that provided for any delay in the grant of ILR of much longer than ten years as (in the normal case) unreasonable.

In Mayaya Cranston J considered various challenges to the lawfulness of the DL policy and to particular decisions taken under it. He held that the threshold of ten years’ presence in the UK with lawful leave before ILR could be considered was unlawful to the extent that it was treated as a fetter on exercise of the Secretary of State’s discretion, not least because it would prevent consideration of the particular circumstances of a case like N (see para. 64). But he upheld the lawfulness of the policy in all other respects. In particular, he upheld the lawfulness of the practice of granting only six-month periods of leave in the case of applicants who were excluded but irremovable. At para. 57 he said:

“The rationale of the discretionary leave policy is not simply to ensure regular reviews so that foreign national prisoners [being the relevant category in that case] can be removed from the United Kingdom when the opportunity arises. As outlined earlier, it is also designed to plant road blocks in the way of foreign national prisoners settling here. That does not mean that settlement will not occur. [Counsel for the Secretary of State] conceded that in the [cases of two of the claimants] settlement seemed increasingly likely as their Article 8 rights strengthened with time. However, once this preventative aspect of the policy is appreciated it seems to me impossible to contend that any of the decisions, including the earlier decisions to grant discretionary leave for six months only, were irrational or disproportionate.”

On 2 September 2011 the Secretary of State issued a “policy statement” which represents the first version of the RLR policy.

The statement begins:

“With effect from 2^nd September 2011 all cases excluded from the protection of the Refugee Convention by virtue of Article 1F but who cannot be immediately removed from the UK due to Article 3 of the European Convention of Human Rights will be subject to a new, tighter, restricted leave policy.

Such cases should usually only be granted restricted discretionary leave to remain for a maximum of six months at a time, with some or all of the following restrictions:

•

A condition restricting the person’s employment or occupation in the UK

•

A condition restricting where the person can reside

•

A condition requiring the person to report to an immigration officer or the Secretary of State at regular intervals;

•

A condition prohibiting the person studying at an education institution

In addition, relevant information on all Article 1F cases will be referred by the UK Border Agency to the Independent Safeguarding Authority (ISA) to consider whether the individuals concerned should be barred from working/volunteering in ISA-regulated fields.

This policy applies to all relevant individuals, whether they are seeking leave or renewal of leave to remain, including cases in which a previous grant of leave to remain was for a period longer than six months.

The power to attach conditions to leave is provided by s.3(1)(c) of the Immigration Act 1971. A person who knowingly fails to observe a condition of their leave commits an offence by virtue of s.24(1)(b)(ii) of the Immigration Act 1971. Where appropriate, this policy will be enforced by the prosecution of individuals who do not comply with the conditions of their leave.”

Although the first paragraph describes the new policy as “tighter”, the only respect in which that appears to be so is in the provision for the imposition of conditions. The grant of leave limited (normally) to six months was a feature of the previous policy. Nothing is said about eligibility for ILR, and presumably the Secretary of State’s policy in that regard remained as stated in the DL policy.

A later passage states ”the rationale for the imposition of these conditions” as follows:

“Public interest. The public interest in maintaining the integrity of immigration control justifies frequent review of these cases with the intention of removing at the earliest opportunity. Therefore we want to ensure close contact and give a clear signal that the person should not become established in the UK.

Public protection. It is legitimate to impose conditions designed to ensure that UKBA is able to monitor where an individual lives and works and/or to prevent access to positions of influence or trust.

Upholding the rule of law internationally. The policy supports the principle that those excluded from refugee status, including war criminals, cannot establish a new life in the UK and supports our broader international obligations. It reinforces the message that our intention is to remove the individual from the UK as soon as is possible."

That threefold rationale remains central to the policy in the later form with which we are concerned.

In May 2012 the Secretary of State issued an “interim” Asylum Casework Instruction putting some flesh on those bones. I need not refer to its details, save to note that, like the original policy statement, it said nothing about eligibility for ILR.

On 23 January 2015 the Secretary of State issued an Asylum Policy Instruction entitled “Restricted Leave”. Although the decisions which underlie the UT proceedings pre-date the 2015 version of the Policy, it was applied in the decision which is challenged in the MS2 proceedings and the submissions before us proceeded by reference to it on the basis that it represented the authoritative statement of the Secretary of State’s policy for the purpose of the issues that we have to decide. I accept that that makes sense.

The 2015 Policy Instruction is in four sections. Sections 2 and 3 deal respectively with the legal background and the categories to which the policy applies (i.e. the excluded but irremovable), and nothing turns on their provisions for present purposes. However Sections 1 (Introduction) and 4 (Administration of the Policy) are important and I need to set out parts of their provisions in some detail.

The heading to paragraphs 1.1-1.4 is “Purpose of instruction”. I need only quote paragraphs 1.1.1-2:

“1.1

Purpose of instruction

1.1.1

This guidance explains the circumstances in which the Home Office will consider granting restricted leave to individuals who cannot be removed because this would breach their rights under the European Convention on Human Rights (ECHR) and:



are excluded from the Refugee Convention for Article 1F reasons, or who would be excluded were a Convention reason to apply (i.e. those excluded from a grant of Humanitarian Protection), or



have been refused asylum under Article 33(2) of the Refugee Convention

1.1.2

The instruction provides specific guidance on:



the categories of persons who may be granted restricted leave under this policy;



the duration of leave and conditions that may be attached to any grant of restricted leave;



conducting an active review in cases granted restricted leave.”

I should set out paragraphs 1.2-1.3 in full. They read:

“1.2

Background

1.2.1

There may be circumstances in which asylum seekers have committed war crimes, crimes against humanity, serious non-political crimes outside the country of refuge or acts contrary to the purposes and principles of the United Nations, or who are a danger to national security or are otherwise non-conducive to the public good. This includes those who espouse extremist views. For more information, see Exclusion under Article 1F of the Refugee Convention. Exclusion may either be agreed by Special Cases Unit (SCU, in OSCT) or may be imposed following an allowed appeal.

1.2.2

Our policy is to remove such individuals wherever possible because they are not welcome in the UK. However, in cases where removal cannot currently be enforced for ECHR reasons we will deny the benefits of refugee status and Humanitarian Protection and instead grant a short period of restricted leave to which tight restrictive conditions may be attached according to the particular circumstances of each case.

1.2.3

This policy applies to anyone where there is an ECHR barrier to removal, including country situations which meet the Article 15 (c) threshold or where the person would ordinarily qualify for discretionary leave because they are in the terminal stages of illness and removal meets the very high Article 3 threshold established by case law. Such individuals must not be granted Humanitarian Protection or discretionary leave but placed on restricted leave in accordance with this policy.

1.2.4

As those who fall within the scope of this policy have committed serious international crimes and/or represent a danger to the security of the UK, only Article 3 considerations will normally outweigh the public interest in removing them because it is an absolute right and the extent of the public interest cannot be taken into account. Where qualified rights are engaged, such as Article 8 ECHR, only in the most compelling compassionate circumstances could their family or private life, or medical considerations, outweigh the public interest in removal in these cases. It is expected there will be very few such cases, but where there are such cases this policy applies.

1.2.5

Such cases will be reviewed regularly with a view to removal as soon as possible and only in exceptional circumstances will individuals on restricted leave ever become eligible for settlement or citizenship. Such exceptional circumstances are likely to be very rare.

1.3

Policy intention behind Restricted Leave

1.3.1

The policy objectives in excluding individuals from the Refugee Convention and/or refusing asylum or Humanitarian Protection and instead granting shorter periods of restricted leave with specific conditions is for:

[The threefold rationale set out at para. 22 above is reproduced in identical terms.]

Section 4 contains the substantive provisions of the RLR policy consequent on the general statements in section 1. It is divided into twelve parts dealing with different specific aspects. Those that are relevant for the purpose of the appeals can be summarised as follows.

4.2: Duration. Paragraph 4.2.1 reads:

“Restricted leave should in most cases be limited to a maximum of six months at a time to emphasise its short-term nature and because it would be at odds with the aim of this policy to permit such a person to re-enter the UK.”

The second reason given may seem rather opaque, but it refers to the fact that leave to remain granted for a period of six months or less automatically lapses if the person leaves the country. One consequence of restricting the grant in this way is that persons with restricted leave are in practice unable to travel abroad (though, as Ms Harrison pointed out, many of those who are excluded but irremovable will have no valid travel documents in any event). Paragraph 4.2.2 reads:

“All cases must be assessed individually. A shorter period than six months should be granted where removal appears to be reasonably likely within six months or where, in exceptional cases, the risk posed by the individual warrants the case being kept under review more frequently.”

4.3: Recourse to public funds. Paragraph 4.3 provides that persons with restricted leave will not have recourse to public funds unless they are destitute. (We were told, however, that this involves no restriction on access to the NHS.)

4.4: Employment restriction. The paragraph begins by reciting a “presumption” that permission to work will “normally” be restricted rather than denied outright. A series of options are identified, with a judgment being required in each case what restriction would be proportionate to “the public protection risk posed by the individual”. In lower-risk cases the restriction would take the form simply of a requirement that the applicant notify her of any employment undertaken. In higher-risk cases the Secretary of State’s consent would be required before the applicant undertook employment generally or of a particular kind. In extreme cases the applicant might be prohibited from undertaking any employment at all. Paragraph 4.4.6 prescribes a presumption that applicants excluded under article 1F or article 33 (2) should not be permitted to work in any role which requires an enhanced check with the Disclosure and Barring Service: those roles include taxi-driver.

4.5: Residence restrictions. Paragraph 4.5.1 explains the rationale for conditions relating to residence. These include the fact that since applicants granted restricted leave “remain a priority for removal”, the Secretary of State needs to be able to make contact with them to enable removal action as soon as possible. Paragraph 4.5.2 provides that:

“One or both of the following residence conditions should usually be imposed:



to notify the Secretary of State of the home address and any change of address;

and/or



to seek the prior consent of the Secretary of State to any change of address.”

Paragraph 4.5.6 provides that “each case must be considered on the individual facts and risks”.

4.6: Reporting restrictions. Paragraph 4.6.1 provides that there is a presumption that applicants granted restricted leave should report regularly to the Secretary of State, so that she can maintain contact and monitor compliance with other conditions. Paragraph 4.6.2 suggests that monthly reporting should be the normal standard but that different periods may be appropriate depending on the circumstances of the case.

4.7: Restrictions on Studies. Paragraph 4.7.1 provides that grants of restricted leave should “generally” be subject to a condition which prevents the applicant from undertaking a course of study. The rationale is explained in paragraph 4.7.2 as follows:

“These individuals are in the UK on a temporary form of leave, pending their removal from the UK when circumstances permit. The rationale for restricting study is that it underlines the temporary nature of the leave. It also reduces pressure on public finances and, for privately funded courses, ensures that the person does not occupy course spaces that would otherwise be taken up by British Citizens or lawful migrants. It is also in the wider public interest to ensure that migrants who are welcome in the UK are afforded the opportunities that come from education, ahead of those on restricted leave.”

4.10: Active reviews. Under this head the policy makes clear that, irrespective of the obligation on the applicant to apply for renewal at the end of each period of leave (typically six months), their position should be kept under active review by the Special Cases Unit within the Home Office, which should include checking whether circumstances have changed in the country of origin so as to render removal possible. Paragraph 4.10.3 deals with the positions of applicants, such as the Claimants, who enjoyed discretionary leave prior to the introduction of the policy. I should set it out in full:

“Cases which were granted Discretionary Leave before 2 September 2011 should remain on their existing leave until it falls for renewal. When the renewal application is received, the case should be transferred to the Special Cases Unit to be considered in line with this policy and, if removal is not an option, be granted restricted leave with appropriate conditions unless exceptional circumstances justify departure from the published policy. This may mean that conditions are placed on who [sic] have not been subject to conditions before, for example they may have not had any restrictions on their employment. Reasons for imposing new conditions must be explained in the decision letter and the proportionality of them should be considered in the light of the risk the person presents and their compliance with Home Office requirements during previous periods of limited leave.”

4.12: Applications for indefinite leave to remain. This head is fundamental to the issues in these appeals and I need to set it out in full:

“4.12.1

Those excluded from the Refugee Convention and/or Humanitarian Protection may make applications for indefinite leave to remain on the basis of long residence, for example because they have lived in the UK lawfully for 10 years or more. The requirements are at paragraph 276B of the Immigration Rules. Consideration must be given to all the factors listed in paragraph 276B (ii) and in particular consideration must be given to the person’s conduct which led to them being excluded from the Refugee Convention and/or Humanitarian Protection when looking at character, conduct and associations under paragraph 276B (ii)(c). Usually, given our international obligations to prevent the UK from becoming a safe haven for those who have committed very serious crimes, the conduct will mean that the application should be refused, but decisions must be taken on a case-by-case basis.

4.12.2

Consideration must be given to each of the general grounds for refusal under paragraph 276B (iii). Paragraph 322 (1C) sets out the grounds for refusing indefinite leave to remain where a person has a criminal conviction. For the purposes of this rule, the conviction does not have to be a UK conviction, but any overseas conviction must be for an offence which has an equivalent in the UK. For example, overseas convictions for homosexuality or proselytising would be disregarded. Consideration must also be given to the rest of the general grounds for refusal at paragraph 322.

4.12.3

Excluded individuals may seek to rely on N, R (on the application of) v Secretary of State for the Home Department [2009] EWHC 1581 in which it was held at paragraphs 21 and 22:

[Paras. 21-22 of Collins J’s judgment , which I have quoted at para. 16 above, are then set out in full.]

4.12.4

Decision-makers must carefully consider the facts of an individual case against the specific facts in the case of R on the application of N to determine whether they are analogous and whether the principles set out in that case are applicable to the case under consideration.

4.12.5

Where a person does not qualify for indefinite leave to remain, consideration must be given to whether there continues to be an ECHR barrier to removal. If there is not, then the case must be prioritised for removal. If there is, then the person must be granted restricted leave within the terms of this policy.”

It is convenient to consider at this stage an issue about construction which bears on the particular issues which I will have to decide later. There is – to put it at its lowest – an evident tension between paragraph 4.12 of the policy and paragraph 1.2.5. Paragraph 1.2.5 says that grants of ILR will only be made “in exceptional circumstances”, which are likely to be “very rare”. That is a more restrictive formulation than paragraph 4.12.1, which says only that such applications will “usually” be refused. That difference of language might not by itself cause a real difficultly; but paragraph 4.12.4 goes on to say that decision-makers should, in “analogous” cases, apply “the principles set out in [N]”, the relevant paragraphs of which are quoted verbatim. The “principles” (Footnote: ²) set out by Collins J in N can be summarised as follows:

We had submissions, partly at the hearing but more fully in notes provided subsequently, on the correct approach to the construction of a policy such as this. There has been a lot of law in recent years about whether it is for the Court itself to decide the meaning of a published policy or merely to consider whether the meaning attributed to it by the relevant Minister is reasonable. Mr Tam recognised that, as he put it, “the direction of travel” is towards the former approach being adopted in the generality of cases: reference was made to a number of authorities, which I need not enumerate in full but which included R (Raissi) v Secretary of State for the Home Department [2008] EWCA Civ 72, [2008] QB 836, and R (O) v Secretary of State for the Home Department [2016] UKSC 19, [2016] 1 WLR 1717. But he submitted that a different rule applied in the immigration context, citing the decision of this Court in Gangadeen v Secretary of State for the Home Department [1998] Imm AR 106. However, as Ms Weston and Ms Kilroy pointed out in their written submissions, the Supreme Court in Mandalia v Secretary of State for the Home Department [2015] UKSC 59, [2015] 1 WLR 4546, has expressly disapproved Gangadeen: see per Lord Wilson at para. 31 (p. 4557 A-B). Mr Tam responded that what was said in Mandalia was obiter and that there appeared to have been no argument on the point. I do not propose to lengthen still further what will already be a lengthy judgment by an elaborate analysis of that submission. Gangadeen was already out of line with the general trend of the decisions in this field and hard to defend in principle for reasons helpfully summarised in Judicial Review: Principles and Procedures, ed. Auburn, Moffett and Sharland (2013), at para. 21.46. I am sure that we should treat its disapproval in Mandalia as authoritative.

It is accordingly for us to resolve the tension between paragraphs 1.25 and 4.12 of the policy. I have not found this entirely easy. It is perfectly understandable that the Secretary of State should have wished to give case-workers guidance about how to deal with what Collins J had said in paras. 21-22 of his judgment in N, on which migrants who were excluded but irremovable would no doubt seek to rely. It would have been perfectly possible for her do so by saying that the observations in question were no longer applicable because they related to the DL policy which had now been replaced by the “tighter” RLR policy. But she did not. Instead she set those paragraphs out in full and enjoined case-workers to apply their “principles” in analogous cases. However, it is important to look at the exact terms of that injunction. Case-workers are told to decide whether a particular case is “analogous” on the basis of a comparison with the “specific facts” of N. It is true that the Instruction does not say what those facts are, but one must assume that case-workers in the Special Cases Unit know how to access BAILII. As appears from para. 13 above, the facts in N had some unusual features, which might reasonably be regarded as amounting to “exceptional circumstances” within the meaning of paragraph 1.2.5. On that basis the two paragraphs are reconcilable. 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. Although the drafting is extremely clumsy, that conclusion produces a coherent result which seems consonant with the general thrust of the policy.

That puts the focus on the phrase “in exceptional circumstances”. That language is of course very familiar in the immigration context because of the debate about its meaning in paragraph 398 of the Immigration Rules, where it is used to describe when the public interest in the deportation of a foreign criminal will be outweighed by other factors.  In MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, [2014] 1 WLR 544, this Court held that the phrase did not connote “a test of exceptionality” but rather a situation involving a departure from the general rule, which was only to be justified in compelling circumstances: see paras. 40-41 in the judgment of the Court delivered by Lord Dyson MR (p. 560).  That approach was endorsed by the Supreme Court in Ali v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799: see paras. 37-38 of the judgment of Lord Reed (pp. 4815-6).   

Although the Court was in those cases concerned with a rule and not a policy, that is not a material difference for our purposes, and I think the phrase must have the same meaning here.  The statement that exceptional circumstances are likely to be very rare is a prediction and does not as such qualify the nature of the approach required (cf. the distinction made by the Appellate Committee in para. 20 of its opinion in Huangv Secretary of State for the Home Department [2007] UKHL 11, [2007] AC 167, at p. 188 A-B).

I should make it clear that in the foregoing I am expressing no view about the lawfulness of the policy. At this stage I am concerned only with what it means.

The only authority in this Court considering the RLR policy is R (Kardi) v Secretary of State for the Home Department [2014] EWCA Civ 934. The claimant was a Tunisian national who came to this country in 2000. He was excluded from humanitarian protection as result of a conviction in France for terrorism offences, but he was irremovable. He challenged a decision taken in March 2012, in accordance with the September 2011 policy statement, to grant him a six-month extension of his leave to remain subject to restrictions under all four of the heads there set out.

There were two grounds of challenge. The first concerned delay. The Court’s reasoning is case-specific and I need not refer to it. The second asserted that the grant of leave for only six months, coupled with the conditions imposed, constituted a breach of the claimant’s rights under article 8 of the ECHR. The Court rejected that challenge. Richards LJ, with whom Fulford and Vos LJJ agreed, referred to the aims of the RLR policy as set out in the 2011 statement and continued, at para. 29:

“The various elements of the stated rationale are all in principle legitimate aims, though it will be necessary to consider the extent to which they are specifically engaged in the appellant's case. More needs to be said, however, about the stated wish to give a clear signal that the person should not become established in the United Kingdom. The rationale of the previous discretionary leave policy was described by Cranston J in [Mayaya]as being ‘not simply to ensure regular reviews so that foreign national prisoners [the specific category of persons in issue in that case] can be removed from the United Kingdom when the opportunity arises’, but also ‘to plant road blocks in the way of foreign national prisoners settling here’, though settlement might in practice still occur. In other words, the grant of short periods of leave emphasised the intended impermanence of the individual's stay in this country and made it more difficult to put down roots here and to build up a private life, thus reducing the prospect of removal being prevented on Article 8 grounds when the opportunity otherwise arose. The current restricted discretionary leave policy, by providing for the imposition of specific conditions on the grant of leave, is intended to reduce further the opportunity to put down roots and thereby to reinforce the road blocks planted in the way of settlement here. It does not prevent the establishing of a private life but makes it more difficult and so increases the chance that the delay before removal can be effected does not operate to prevent removal altogether. That is a legitimate aspect of immigration control”.

Richards LJ went on to consider whether the particular restrictions in the claimant’s case were proportionate and concluded that they were in the case of all save the restriction on his right to study. I should set out how he dealt with the fact that the claimant had been in this country for over eleven years at the date of the decision in question. He said, at paras. 31-32:

“31.

[Counsel for the claimant] submits first that the purpose of the policy, in so far as it relates to the creation of road blocks in the way of settlement in the United Kingdom, cannot apply at all to the appellant, since he has lived in this country since 2000 and will have long since established a new life here. I disagree. The purpose remains relevant and legitimate even in relation to a person who has been in the United Kingdom for many years. The appellant's own stay here has been imbued, as [counsel for the Secretary of State] puts it, with a sense of impermanence. Until 2008 he was awaiting a decision on his asylum claim. That claim was then rejected but he succeeded in the tribunal under Article 3 on the basis of the prevailing conditions in Tunisia. He has known since then of the intention to remove him to Tunisia as soon as a change in conditions makes it possible. He was granted 6 months' discretionary leave under the discretionary leave policy as it stood in November 2008 and can have had no legitimate expectation of anything more than successive grants of 6 months' discretionary leave since that time. There was a value in November 2008, and there is still a value, in laying down road blocks to settlement and to the further building up of private life.

32.

There is no direct evidence that conditions in Tunisia have been kept under review by the Secretary of State but there is no reason to believe that this has not been done, with a view to removing the appellant to Tunisia as soon as possible. There may of course come a point where the appellant has been in the United Kingdom for so long and/or the prospect of his removal to Tunisia is so remote, that the only course reasonably open to the Secretary of State is to grant him indefinite leave to remain. That point had not been reached, however, at the date of the March 2012 decision under challenge in these proceedings. As at that date the Secretary of State was entitled to continue to approach the matter on the basis of the policy on discretionary leave and to limit the period of leave to six months in accordance with that policy.”

Although the overall thrust of that passage was against the claimant, the second half of para. 32 involves a recognition, echoing the observations of Collins J in N, that a time might come where the Secretary of State was obliged to grant him ILR, notwithstanding his exclusion on account of having committed terrorist offences.

Although, I have said, Kardi is the only authority in this Court on the RLR policy, we were referred to the decision of the Supreme Court in R (George) v Secretary of State for the Home Department [2014] UKSC 28, [2014] 1 WLR 1831, which concerned the case of a migrant whose grant of ILR had been invalidated by the making of a deportation order but where the order had been revoked because it would involve the breach of his article 8 rights. Mr Tam submitted that that situations was in some degree analogous with that of a migrant who was excluded but irremovable.

The issue for the Court was whether the revocation of the order automatically entitled him to the restoration of ILR. It held that it did not. The judgment of Lord Hughes, with which the other members of the Court agreed, concludes, at para. 32 (p. 1842):

“Mr George remains liable to deportation, even though it cannot at present be carried out. His position in the United Kingdom must be regularised, but that does not entail a recognition of indefinite leave to remain. The Secretary of State’s grant to him of successive limited leaves is perfectly proper. Whether or not it may become appropriate after the passage of time to re-grant indefinite leave is a matter for her.”

Mr Tam drew attention to the statement that whether in due course the appellant might be re-granted ILR was a matter for the Secretary of State. That is no doubt true, but it does not help with the question of whether, or in what circumstances, a time might come where it was unlawful for her not to do so.

I have already noted the essentials of the Claimants’ circumstances. I will set out here the relevant further details and the procedural history up to the date of the hearing before the UT decision, which was in July 2015. There are some additional facts in MS’s case relevant to the MS2 decision, but it will make more sense to deal with them when I come to consider that decision. I have gratefully adopted some passages almost verbatim from the judgment of the UT.

MS’s application for asylum was on the basis that he faced persecution in India as a Sikh. That case was not accepted by the Secretary of State, but before SIAC it was contended that MS was in any event excluded from the scope of the Convention because between February and November 1998, i.e. while his application was pending, he had been involved with a violent Sikh extremist organisation in this country which supported the activities of a paramilitary group based in Pakistan which was planning terrorist offences in India: the Secretary of State’s case was that he was actively involved in arranging the shipment of explosives from Pakistan to India and that only his detention had prevented the completion of arrangements for terrorist attacks.

SIAC, which considered MS’s case along with that of one of his alleged associates, found that case proved. At para. 24 of its determination dated 31 July 2000 it said:

“… [We] are satisfied that the Secretary of State has proved to a high degree of probability the allegations of terrorism identified in the Open Statements in each of these appeals in respect of each Appellant. We are satisfied that each of the Appellants has endangered national security. Furthermore … we are satisfied to the requisite standard that each of the Appellants is a danger to national security. We therefore conclude that the Secretary of State has shown that it would be conducive to the public good in the interests of national security to deport the appellants because of their involvement in international terrorist activity.”

It accordingly found that he was excluded from the scope of the Convention under article 1F. However, as already noted, it went on to accept that MS would face a real risk of torture if returned to India, notwithstanding assurances to the contrary received from the Indian government, and that his removal would accordingly be in breach of his rights under article 3.

In the light of that conclusion MS was granted what was then called “exceptional leave to remain” for one year. Following the introduction of the DL policy he was granted discretionary leave on a rolling six-month basis until 8 June 2005. During that period he married a British citizen. Their first son was born in 2003. Another son was born in 2008 and a daughter in 2009. The long delays in resolving his immigration status to which I refer below caused him some difficulties in obtaining, or retaining, work. For a while he had a soft drinks wholesaling business, but that failed. However in 2013 he began to work as a taxi-driver, on a self-employed basis. He is active in his local gurdwara.

On 7 June 2005 MS applied for ILR on the basis that he had by then been lawfully in the country for over ten years. There was no response to that application for over nine years, despite repeated attempts by his solicitors to obtain a decision. That degree of delay is shocking, but it was part of the well-known failure of the Home Office during this period to cope with the volume of immigration applications made to it. The operation of section 3C of the Immigration Act 1971 meant that MS’s leave to remain was extended during this period without the need for any further application.

Eventually, in March 2014 MS issued proceedings seeking judicial review. In her Summary Grounds of Defence the Secretary of State promised a decision by 2 May 2014.

On 2 May 2014 the Secretary of State issued a decision letter refusing to grant ILR on the basis of paragraph 322 (5) of the Rules: in this regard she relied on SIAC’s findings about MS’s involvement in terrorism. She granted six months’ restricted leave. The notice served with the decision letter contained various conditions, which I need not set out since they have since been superseded. By consent the claim form was amended so as to challenge that decision.

On 30 October 2014, prior to the expiry of the leave granted in May, MS applied for further leave to remain. On 15 January 2015 he was granted a further six months’ restricted leave, subject to the same conditions.

The evidence initially lodged in MS’s case primarily dealt with the problems and anxiety caused to him by the Secretary of State’s failure to make a decision. When the focus of the proceedings changed to challenge the grant of only limited leave further evidence was lodged. This explained the stresses and tensions caused by the difference between his position and that of his wife and children. They were British citizens, secure in their residence rights (and among other things free to travel) whereas his position was insecure and he could never be sure whether attempts might not be made to remove him. The evidence says nothing about his attitude to his previous involvement in terrorism, except that it was a long time ago: there is no expression of remorse or renunciation. On the other hand, as will appear below, it is accepted that he poses no security risk, and it is fair to proceed on the basis that he ceased any involvement in terrorism since his release from detention following the SIAC decision.

On 19January 1998 MBT was convicted in France, along with a number of other Tunisian nationals, of terrorism-related offences. These offences included possession and transportation of unauthorised weapons along with unlawful entry to France and forgery of an official document. He was sentenced in August 1998 to five years’ imprisonment. However, because he had already served a substantial period of time on remand he was released shortly afterwards.

On 13 May 1999 MBT came to the UK and claimed asylum straightaway. No decision was made until 22 July 2004, when the Secretary of State refused his application on the grounds of his exclusion from the Refugee Convention under Article 1F. He was granted six months’ discretionary leave, which was repeated on two occasions. On 30 July 2009 he applied for further leave but the Secretary of State lost his application. After numerous unanswered chasing letters, a further copy was supplied at the end of March 2011. MBT was by then married, with four children, all of whom had been granted ILR; his wife and two elder children had become British citizens.

On 6 November 2012 MBT applied for ILR. He had by that date been resident in the UK for over thirteen years. Some months later he issued judicial review proceedings complaining of the delay in reaching a decision. Those proceedings were compromised by the Secretary of State agreeing to provide a decision within six weeks.

On 21 August 2013 the Secretary of State refused MBT’s application for ILR and granted him six months’ restricted leave subject to the following conditions:

“B. You must reside at the address shown above and you must notify the Secretary of State of any change of address

C. You must not enter or change employment, paid or unpaid, or engage in any business or profession without the prior written consent of the Secretary of State.

D. You must report to an Immigration Officer at (address provided) on 21 September 2013 and monthly thereafter…

E. You must not enrol in any course of study without the prior consent of the Secretary of State.”

On 1October 2013 the Secretary of State declined to relax those conditions.

The judicial review proceedings with which we are concerned were issued on 20 November 2013 and were initially brought to challenge the decision of 21 August. However, in the course of the proceedings the leave granted by those proceedings expired and the Secretary of State made a further decision dated 20 March 2015. This granted a further period of six months’ leave, with conditions substantially identical to those already in place. I summarise the reasoning at paras. 141-143 below. It was, to anticipate, this decision which was the subject of the decision of the UT.

I need not set out the ways in which the two claims were initially pleaded. By the time they came before the UT Ms Harrison and Ms Weston had summarised the issues under two headings, the first asserting that the RLR policy was unlawful in its entirety and the second challenging the particular decisions made in the individual cases.

As to the lawfulness of the RLR policy, this was challenged on five distinct grounds, though there is a degree of overlap between them. I explain them as necessary below, but they can be labelled as follows: (1) “the ultra vires ground”; (2) “the Alvi ground”; (3) “the fettering discretion ground”; (4) “the article 8 ground”; and (5) “the section 55 ground” (the reference of course being to section 55 of the Borders, Citizenship and Immigration Act 2009).

As regards the individual decisions in the cases of MS and MBT, these were said to be irrational, in view of their individual circumstances and histories, and/or to be in breach of their and their families’ rights under article 8, whether read on its own or with section 55 of the 2009 Act.

The UT heard argument over three days in July 2015. Its judgment, which is clear and thorough, was handed down on 4 September. In bare outline, its conclusions can be summarised as follows, leaving the details of its reasoning until later (so far as necessary).

In Part IV it considered and rejected the claim that the RLR policy was unlawful on all or any of the grounds advanced.

In Part V it considered whether the policy was lawfully applied in the particular circumstances of MS’s case: I will refer to this aspect of its decision as “MS1”. It rejected most of his grounds of challenge, but it found for him in two respects:

In Part VI it considered and rejected each of the submissions made that the RLR policy was not properly applied in MBT’s case.

As anticipated by the UT, within a few days of the hearing MS applied to the Secretary of State for further leave to remain, making it clear that his primary case was that he should be granted ILR. His solicitors’ letter in support of the application made various points of law, but there was no substantial addition to the evidence already available to the Home Office from the previous applications and proceedings.

The Secretary of State’s decision is dated 18 February 2016. In short, she refused MS’s application for ILR but granted restricted leave for a period of two years. The leave was subject to conditions specified in a formal “Conditions Notice” (though the accompanying decision letter refers to them in terms which are not wholly consistent). The conditions as specified in the Notice are:

MS issued judicial review proceedings on 17 May 2016. He challenged the refusal of ILR, the limitation of leave to two years and the imposition of each of the conditions. I need not set out the grounds at this point, save to note that part of the challenge to the residence condition was that it amounted to unlawful imprisonment. It is because of that element that the claim was issued, and retained, in the High Court.

MS relied on his evidence in the UT proceedings. There was a witness statement from his solicitor but no further evidence from him or his family. The Secretary of State, at MS’s request, produced redacted copies of a submission to ministers about his case dated 21 January 2016 and a letter from the Foreign and Commonwealth Office of 14 December 2015. The FCO letter concludes:

“A combination of his links to Sikh extremist groups, historic terrorist activities in India and India's concerns about related threats from terrorist organisations, leads us to judge that MS would be of interest to the Indian authorities. As such, his removal would lead to a risk of violation of the UK's obligations under Article 2 and 3 of the ECHR.”

The hearing was on 15 and 16 November 2016 before Collins J. By a judgment handed down on 9 December he upheld the claim on the basis that the Secretary of State’s reasoning in support of her decision not to grant ILR was flawed. The effect of his reasoning was that the only lawful decision that she could make would be to grant ILR. I will return to the details in due course.

That conclusion rendered academic any consideration of the details of the conditions attached to the grant of restricted leave, save in the case of the residence condition which was capable in principle of giving rise to a claim for damages. At paras. 30-39 Collins J held that the condition as formulated was unlawful, following the decision of this Court in Gedi v Secretary of State for the Home Department[2016] EWCA Civ 409, [2016] 4 WLR 93. It is convenient to say at this stage that that condition has since been withdrawn, and Mr Tam made it clear that he was not pursuing any challenge to Collins J’s decision, on the basis only that it was no longer material.

The consequent order gave effect to the decision on the ILR claim as follows:

“(1)

The decision of the defendant dated 18 February 2016 be quashed.

(2)

The defendant must reconsider the application by the claimant for indefinite leave to remain in accordance with the judgment herein.”

MS pleaded six grounds of appeal against the decision of the UT. The first four repeated the general challenges to the lawfulness of the policy advanced in the UT, though ground 2 rolled up the Alvi and fettering discretion points. Simon LJ gave permission on the papers on ground 2 and on ground 3 (article 8) and refused it on grounds 1 (ultra vires) and 4 (section 55). The last two repeated the challenge to the particular decision in MS’s case. Simon LJ gave permission on ground 5 but refused it on ground 6: I need not spell them out here.

A renewed application as to the three grounds on which permission was refused was subsequently directed to be heard at the full appeal on a rolled-up basis.

MBT pleaded five grounds of appeal. The first four raised essentially the same grounds of challenge as MS with the exception of the ultra vires ground. The fifth related to the decision in MBT’s case. Simon LJ gave permission on all save the section 55 ground. A renewed application was made as regards that ground and was directed to be heard at the full appeal on a rolled-up basis.

Collins J gave the Secretary of State permission to appeal against his decision in MS2 on the basis of ten grounds. Those have since been re-cast as seven, but I need not set them out here.

It was Ms Harrison’s position for MS that if he succeeded in resisting the Secretary of State’s appeal in MS2 he had no interest in pursuing the general challenge to the RLP raised in MS1, and she was initially reluctant to argue the grounds in question. However, since the outcome in MS2 was unknowable and since the same issues as in MS1 were raised by MBT, we required her to argue her general challenge in MS1 as well. She did so, while insisting that she regarded it as secondary.

Against that background the issues which we have to determine can most usefully be categorised as follows:

THE CHALLENGE TO THE RLR POLICY

THE ULTRA VIRES GROUND

This ground is not concerned with the grant of RLR, as opposed to ILR, as such but with the conditions attached to that grant. The power to impose those conditions derives from section 3 (1) (c) of the 1971 Act, which reads as follows:

“[I]f [a person who is not a British citizen] is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely─

(i)

a condition restricting his employment or occupation in the United Kingdom;

(i)(a) a condition restricting his studies in the United Kingdom;

(ii)

a condition requiring him to maintain and accommodate himself, and any dependants of his, without recourse to public funds;

(iii)

a condition requiring him to register with the police;

(iv)

a condition requiring him to report to an immigration officer or the Secretary of State; and

(v)

a condition about residence.”

Ms Harrison’s primary submission, and the only one pursued in her oral submissions, is fully and clearly analysed by the UT at paras. 65-66 of its judgment. For present purposes I need only say that the essential point is that the effect of the reference in section 3 (1) (c) to leave being given "subject to" the conditions means that any conditions imposed must be integral to the grant of leave, in the sense that their breach will necessarily lead to removal; and that that cannot be the case where a migrant is irremovable.

The UT rejected that case at paras. 67-69 of its judgment. I need not reproduce that passage. In short it held that the statutory language, naturally construed, did not contain the limitations contended for: it gave a general power to impose conditions of the kind specified in any case where leave was granted.

In her skeleton argument and, briefly, in her oral submissions Ms Harrison repeated the arguments which the Tribunal had rejected. Since this is only a permission application, and in view of the secondary importance which Ms Harrison avowedly attached to this challenge and the fact that it is not made by MBT, I propose to say only that she did not persuade me that there was any arguable error in the UT’s reasoning or conclusions.

In the UT Ms Harrison also advanced a number of supporting arguments on the vires issue, which the Tribunal set out and rejected at paras. 72-95 of its judgment. Although the same arguments, or in any event some of them, were raised again in her skeleton argument, she did not seek to develop them orally. It is therefore even less necessary that I should address them seriatim here: again, I need only say that I am not persuaded that they undermine the conclusion which the UT reached based on the language of section 3 (1) (c).

I would accordingly refuse permission to appeal on this ground. I should however say, for the avoidance of doubt, that an arguable challenge might well have been advanced under this head, as indeed Mr Tam accepted, if the Secretary of State had been seeking to maintain a “residence condition” of the kind set out at para. 71 (a) above; but, as noted at para. 75, she is not.

THE ALVI GROUND

It was both Claimants’ case in the UT that the provisions of the January 2015 Instruction had the character of rules and accordingly that it should have been laid before Parliament, as required by section 3 (2) of the 1971 Act (as to which see para. 8 (2) above). That depends on the application of the distinction between “rules” and other instructions or statements of policy explained by the Supreme Court in Alvi. The relevant passages in the judgments in that case are as follows. At paras. 62-63 of his judgment Lord Hope said, at p. 2231 D-G:

“63.

Various expressions have been used to identify the test which should be used to determine whether or not material in the extraneous document is a rule which requires to be laid before Parliament. It is not easy to find a word or phrase which can be used to achieve the right result in each case. …  I would prefer to concentrate on the word "rule" which, after all, is the word that section 3(2) uses to identify the Secretary of State's duty …. The Act itself recognises that instructions to immigration officers are not to be treated as rules, and what is simply guidance to sponsors and applicants can be treated in the same way. It ought to be possible to identify from an examination of the material in question, taken in its whole context, whether or not it is of the character of a rule or is just information, advice or guidance as to how the requirements of a rule may be met in particular cases.

64.

I see no escape from the conclusion that the question whether or not material in an extraneous document is a rule, or a change in the rules, will have to be determined on the facts of each case. …”

At paras. 93-94 (p. 2238 D-F) Lord Dyson said:

“93.

…  The court has to do its best to provide a solution which (i) is consistent with such clues as are to be found in the statute, (ii) is not administratively unworkable and (iii) is reasonably certain and easy to apply, thereby minimising the risk of unwelcome litigation.

94.

In my view, the solution which best achieves these objects is that a rule is any requirement which a migrant must satisfy as a condition of being given leave to enter or leave to remain, as well as any provision ‘as to the period for which leave is to be given and the conditions to be attached in different circumstances’ … [I]t seems to me that any requirement which, if not satisfied by the migrant, will lead to an application for leave to enter or remain being refused is a rule within the meaning of section 3(2). That is what Parliament was interested in when it enacted section 3(2). It wanted to have a say in the rules which set out the basis on which these applications were to be determined.”

At para. 120 (p. 2244 F-G) Lord Clarke said:

“120.

It seems to me that, as a matter of ordinary language, there is a clear distinction between guidance and a rule. Guidance is advisory in character; it assists the decision maker but does not compel a particular outcome. By contrast a rule is mandatory in nature; it compels the decision maker to reach a particular result.”

He went on to agree with Lord Dyson's formulation at para 94 of his judgment, commenting at para. 122 (p. 2245 A-B) that

“… this is a principled, clear and workable approach. The touchstone is criticality: if a change in practice has the potential to determine the outcome of any application for leave to enter or remain then it must be laid before Parliament.”

Lord Walker and Lord Wilson also adopted Lord Dyson’s formulation.

In R (Munir) v Secretary of State for the Home Department [2012] UKSC 32, [2012] 1 WLR 2192, in which judgment was handed down on the same day as Alvi, one of the issues was whether a published Home Office policy (D5/96) was a rule within the meaning of section 3 (2).  The policy related to the circumstances in which enforcement action would not be taken against persons liable to removal who had children in the UK.  Lord Dyson said, at para. 45 (p. 2206 F-H):

“If a concessionary policy statement says that the applicable rule will always be relaxed in specified circumstances, it may be difficult to avoid the conclusion that the statement is itself a rule "as to the practice to be followed" within the meaning of section 3(2) which should be laid before Parliament. But if the statement says that the rule may be relaxed if certain conditions are satisfied, but that whether it will be relaxed depends on all the circumstances of the case, then in my view it does not fall within the scope of section 3(2). Such a statement does no more than say when a rule or statutory provision may be relaxed. I have referred to DP5/96 at para 9 above. It was not a statement of practice within the meaning of section 3(2). It made clear that it was important that each case had to be considered on its merits and that certain specified factors might (not would) be of particular relevance in reaching a decision. It was not a statement as to the circumstances in which overstayers would be allowed to stay. It did not have to be laid before Parliament.”

Ms Weston argued this part of the Claimants’ case in the UT. Her submissions are helpfully summarised at para. 103 of its judgment, as follows:

“She submitted both orally and in writing that the RLR policy was in truth in the nature of a rule for a number of reasons. Firstly, it is inflexible in that every person who is excluded from the Refugee Convention but who would be at risk of a breach of Article 3 if they were returned is made the subject of the RLR policy and will only be granted RLR. This demonstrates inflexibility in the RLR policy making it in effect a rule. Further she relied upon the evidence obtained under the FOI request which demonstrated that in all cases of this kind RLR had been granted and without exception for a period of six months. The inflexibility of the RLR policy was demonstrated therefore in its application to all persons irrespective apparently of their personal circumstances. Furthermore, it appeared from the decision letters and other correspondence in MBT's case that the fact that a person had not reoffended in the United Kingdom was irrelevant and further the existence of dependent children did not appear to deflect the respondent from applying the RLR policy. Submissions were also made both in this part of the case and elsewhere contending that the conditions were inflexible as they were uniformly applied and although the detail of conditions might vary, the types of condition contemplated by the RLR policy (restricting residence, employment, reporting for example) were applied in all cases. This approach was borne out, again, by the evidence which had been obtained under the FOI request and that within the respondent's evidence.”

The UT dealt with the issue at paras. 97-107 of its judgment. After referring to Alvi and Munir, it quoted at length from the decision of Patterson J in R (YA) v Secretary of State for the Home Department [2013] EWHC 3229 (Admin), in which she expressed the view, albeit obiter, that the earlier version of the RLR policy was not caught by the requirement of section 3 (2). At para. 58 of her judgment Patterson J gave her overall view of the character of the RLR policy.

“Applying the test posed in Alvi … together with the approach of Lord Dyson in Munir .., whilst I accept that the Restricted Discretionary leave policy applies to all cases who are excluded from the Refugee Convention by virtue of Article 1F but who cannot be removed by virtue of Article 3 of ECHR I find that the policy is not dealing with whether leave to remain has to be granted. That has to be taken as a given because of the contravention of the Human Rights Act should deportation be exercised. The objective of the policy is to guide decision makers as to how long leave should be granted for and what, if any, conditions need to be attached to the grant of leave. As such it is a concessionary policy concerning the grant of leave to persons outside the immigration rules. In other words the policy is dealing with how the grant of restricted discretionary leave should be administered. In dealing with that issue the policy does not lay down a rigid framework which has to be followed. Rather, it provides guidance to assist the decision maker as to the duration of leave and which conditions should be attached but it does not compel any particular outcome in all cases.”

In the following paragraphs she went on to make good that assessment by reference to the particular provisions of the policy. At para. 59 she observed that the policy that leave should only be granted for six months at a time was prefaced by the word “usually” and permitted a grant for a shorter or longer period if the case so required. At paras. 60-69 she demonstrated that the policy did not mandate the imposition of conditions under the various heads: the language used was that of discretion. She concluded, at para. 70.

“It follows from the analysis of the provisions of the policy that it is flexible. There are some presumptions but they are clearly rebuttable. It is providing a framework of guidance to enable caseworkers administering the restricted discretionary leave policy to determine the nature and, where relevant, duration of conditions to be attached to any decision on leave. It does not compel a particular outcome. In my judgment it is a concessionary policy outside the immigration rules and did not have to be laid before Parliament.”

At para. 104 of its judgment the UT endorsed Patterson J’s conclusion and adopted her reasoning. It went on at para. 106 to point out that the provisions of the 2015 version as regards ILR followed the same pattern, referring to the recognition in paragraph 1.2.5 (“elaborated” at paragraph 4.12 by reference to N) that in exceptional cases migrants who were excluded but irremovable should be granted ILR. It concluded, at para. 107:

“Thus, in summary, whilst the RLR policy is an instrument about which the s.3(2) question should be posed, we are satisfied that the combination of the flexibility in the RLR policy, flexibility which is further enhanced in the most recent policy effective from 23 January 2015 indicating that there will be some albeit rare cases in which RLR will not be imposed, together with the flexibility in relation to the conditions noted by Patterson J, lead us to the conclusion that the RLR policy is not in the nature of a rule which should have been laid before Parliament. True it is that the evidence obtained by the applicants in response to the FOI request … (showing that all 56 people currently granted RLR had reporting, prohibition of study without written consent and residence conditions imposed upon them, all bar two had employment conditions imposed, all 56 had been granted RLR for a duration of six months at a time and none had been granted RLR for a period more or less than six months) suggests that in the relatively limited number of cases in which the RLR policy has been applied, similar outcomes in respect of the various applicants have arisen. We are satisfied that, whilst the outcomes show that the decision makers placed weight (which they were fully entitled to do, as the individuals concerned had engaged in terrorist-related activity in the past) on the presumption that the duration of leave will usually be six months and the presumption in favour of the imposition of all four conditions, the fact is that employment restrictions were not imposed on two out of fifty-six individuals. In our view, this does not show inflexibility but it shows weight being placed on the presumption. It is also important in our view to examine the RLR policy itself and its terms to see whether it is in reality a rule as to the practice to be followed in respect of these cases. On examination of the RLR policy, we are satisfied that it is not.”

In their skeleton arguments Ms Harrison and Ms Weston essentially repeated the submissions before the UT and contended that the Tribunal had been wrong not to accept them. Ms Weston emphasised that the mere presence of a degree of flexibility was not enough: the policy had, in Lord Dyson’s language in Munir, to be sufficiently flexible. As to that, as she put it:

“In order to be sufficiently flexible, the policy would have to permit consideration of individual circumstances at the point of deciding whether they should be dealt with - or continue to be dealt with - under the policy. The policy does not provide any guidance on the circumstances which may inform that decision. It simply provides that the default position is that the RLR policy would be applied to all excluded persons. This is the same whether conduct giving rise to the exclusion was 20 years ago or 1 year ago and whether lawful residence in the UK is of 20 years or 1 year’s duration and whether or not any similar restrictive measures have been deemed necessary during any period of residence in the UK.”

Ms Harrison did not develop her submissions orally. Ms Weston did so. Apart from the points to which I have already referred she relied on the decision of the UT in R (Fakih) v Secretary of State for the Home Department [2014] UKUT 0513 (IAC).

I believe that the UT was right to reject this ground of challenge. In my judgment the RLR policy is indeed sufficiently flexible. The language throughout contemplates a case-by-case assessment with case-specific outcomes. This is explicit in, for example, paragraphs 4.2.2 and 4.12.1; but it is in fact implied in every other provision of section 4, which gives guidance as to what should be done “normally” or “usually”. The fact that the evidence shows that in almost all cases conditions of a particular character are imposed, or renewals are only granted for six months, does not affect the character of the policy. It may show that it is sometimes being applied over-formulaically, which may be a ground of challenge in a particular case; but that is another matter. And indeed even that conclusion should not be reached too readily: it is not inherently surprising that in most of the cases in which the RLR policy falls to be applied very similar conditions may be appropriate.

The decision in Fakih does not advance the argument. It concerned the status of an Immigration Directorate Instruction covering the imposition of a “no recourse to public funds” condition on the grant of limited leave to remain under Appendix FM of the Immigration Rules. UTJ O’Connor, after carefully setting out the relevant principles and reviewing the submissions, held, at para. 68:

“[T]he Respondent’s policy cannot be said to be advisory in character, assisting the decision maker but not compelling a particular outcome. I find the contrary to be the case - it lacks any flexibility and constrains a decision-maker to imposing a NRPF condition if an applicant has not met identifiable and specific criteria. It is, therefore, in the nature of a rule as to the practice to be followed in the administration of the 1971 Act for regulating the stay in the United Kingdom of persons required to have leave to enter, in that it is a rule relating to the conditions to be attached to such leave. For that reason, in my conclusion it should have been laid before Parliament pursuant to section 3(2) of the 1971 Act.”

That may well have been the right decision as regards the instruction in that case but I do not believe that the same can be said as regards the RLR policy, which can indeed be said, for the reasons I have given, to “assist the decision-maker but not compel a particular outcome”. (Footnote: ³)

I would accordingly dismiss this ground of appeal.

THE FETTERING DISCRETION GROUND

It was common ground that this issue involved essentially the same considerations as the Alvi ground and that they stood or fell together. Accordingly I would dismiss this ground also.

THE ARTICLE 8 GROUND

This part of the case was argued on behalf of the Claimants by Ms Harrison, whose submissions Ms Weston adopted. She took a number of points, and it will be more convenient if, rather than starting with the judgment of the UT, I take those in turn, referring to the relevant parts of the UT’s reasoning as necessary as I go.

Article 8 of the Convention reads:

“1.

Everyone has the right to respect for his private and family life, his home and his correspondence.

2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The starting-point is that it was common ground before the UT, and before us, that the application of the RLR policy is liable to interfere with the article 8 rights of the persons to whom it is applied, essentially because the conditions which it contemplates being imposed and the short duration of the grants of leave have the effect of placing obstacles in the way of the creation of private and family life: indeed that is part of their purpose, as noted in both Mayaya and Kardi. Ms Harrison submitted that the UT had under-estimated the extent of the interference, but that submission is best addressed in the context of the discussion of proportionality: see para. 109 below.

Ms Harrison submitted that the infringement of the article 8 rights of migrants who are subject to the RLR policy was not “in accordance with the law”, as required by article 8.2, because the scope of the conditions which it allows to be imposed is undefined, over-broad and unlimited in the detail of its application. She referred to the decisions of the European Court of Human Rights in Malone v United Kingdom (1985) 7 EHRR 14, Lupsa v Romania (2008) 46 EHRR 36 and Gillan and Quinton v United Kingdom (2010) 50 EHRR 45. She suggested various arbitrary and unreasonable ways in which the power to grant conditions might be applied, such as a “residence condition” requiring the migrant to be at home 24 hours a day or a reporting condition requiring twice-daily reporting. She said that there were no proper procedural safeguards, referring to the decision of the European Court in Al Nashif v Bulgaria (2003) 36 EHRR 37.

Although apparently the equivalent submissions were made below they were not addressed directly by the UT, which regarded the question whether the RLR policy was in accordance with the law as being sufficiently answered by its rejection of the ultra vires ground. However, I am satisfied that the point is bad. The governing principle behind the Strasbourg case-law on which Ms Harrison relied is stated at paras. 76-77 of the judgment of the Grand Chamber in Gillan and Quinton as follows (p. 1147-8 – I omit the extensive citation of authority):

“76.

The Court recalls its well established case-law that the words ‘in accordance with the law’ require the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual - if need be with appropriate advice - to regulate his conduct.

77.

For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise. The level of precision required of domestic legislation - which cannot in any case provide for every eventuality - depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed.”

The final sentence of para. 77 is important. In cases involving the exercise of highly intrusive state powers the rule of law requires that the scope of any discretion be defined with a high degree of specificity. The present case is not like that. Conditions of the kind identified in section 3 (1) (c) of the 1971 Act, as elaborated in section 4 of the RLR policy, do no doubt to some extent inhibit the exercise of private or family life, but they are not inherently comparable in their intrusiveness to having your telephone tapped (Malone) or being subjected to police stop-and-search (Gillan and Quinton), still less to being summarily taken away from your family and deported (Lupsa). And if the power to impose such conditions in question is in fact exercised arbitrarily, judicial review is an available remedy: it is illegitimate to characterise a policy as not “in accordance with the law” simply because it would be capable of applied unreasonably. The same goes for the reference to Al-Nashif. The absence of procedural safeguards which the Court found in that case consisted in the absence of any right at all to mount a judicial challenge to the deportation of a stateless person resident in Bulgaria on claimed grounds of national security. That situation is not remotely comparable to the present case. I can see nothing in the terms of the RLR policy which is inherently contrary to the rule of law.

Ms Harrison’s remaining points were directed to the question of whether the infringements of migrants’ article 8 rights contemplated by the RLR policy were justifiable. As to that, her first submission was that the fundamental philosophy of placing obstacles in the way of persons developing a private or family life in the UK for persons who were excluded but irremovable did not constitute a legitimate aim. The UT rejected that submission. At para. 119 of its judgment it said:

“We are in no doubt for reasons which will already have become obvious that the interference which arises under the RLR policy, both as to time limited periods of leave and also as to the conditions which are imposed upon that leave, is necessary for public safety, the economic wellbeing of the country, the prevention of crime and disorder and, in some cases, national security. Leaving aside the fact sensitive assessment of proportionality, we see no objection in principle to the interference with Article 8 rights which may arise through the limitation of the time period for leave or the conditions placed upon it. The reasons why they are necessary are appropriately and adequately explained in [the 2012 and 2015 Instructions] providing the rationale for the RLR policy. Understood in this way and in accordance with the approach in Razgar, the interferences with Article 8 which occur are lawful and within the scope of Article 8. Although as a generality Article 8 may contain in its application some positive obligations, it is a qualified right. The issue in relation to any interference with Article 8, or any obstacle to the development or enhancement of Article 8 rights, is whether that interference is necessary in the various interests of a democratic society set out above. Once it has been concluded that it is necessary then the interference is justifiable and within the scope of the Article 8 right.”

It went on at para. 120 to say that although it would have reached that conclusion without reference to authority its view was consistent with what Richards LJ had said at para. 29 of his judgment in Kardi – see para. 44 above.

It is convenient to start with Kardi, since if what Richards LJ said in the passage relied on by the UT is authoritative we cannot go behind it. Ms Harrison argued that we were not bound by it because the appellant in that case did not have a family life in the UK, and what Richards LJ said was directed only to interference with private life. That seems to me, with all respect, hopeless: the legitimacy of the aim cannot be affected by the particular aspect of the article 8 right which is affected, though that might well be material to proportionality.

Ms Harrison’s more substantial point was that Richards LJ’s observations were not binding because, as he had made clear at an earlier stage of the judgment (paras. 3 and 26), the appellant had mounted no general challenge to the lawfulness of the policy. I am inclined to think that para. 29 of Richards LJ’s judgment nevertheless forms an essential part of his reasoning and that we are accordingly bound by it. Even if that were not so, I would take a lot of persuading to depart from so explicit a statement, and from such a source – and even more so since he was endorsing the view of both Collins J in N and Cranston J in Mayaya. But even if the matter were free of authority I would reach the same view as the UT. The language of “placing obstacles” and “creating road-blocks” may have, out of context, a pejorative ring. But the context is all-important. The category of migrants with whom we are concerned have, by definition, committed serious crimes (in the sense identified above), typically of a terrorist character. They have no right to be in this country and are only permitted to stay because, having come here unlawfully, it has proved impossible to remove them. I see nothing even arguably illegitimate in seeking to prevent them putting down roots, for the reasons clearly stated in the policy itself. Of course the measures taken in pursuit of that aim may not be proportionate, but that is another matter and falls to be dealt with at the next stage of the argument.

I turn, therefore, to the issue of proportionality. The UT started its consideration of this aspect by referring, again, to Kardi. Although that was, as noted above, a challenge to an individual decision rather than to the policy itself, the UT noted that the Court of Appeal had described the limited duration of leave and the conditions imposed as “[giving] rise to only a limited interference with the appellant’s private life” (see para. 47 of the judgment of Richards LJ). At para. 129 it said:

“The essence of the conclusions … in Kardi were that the restrictions in that case had a limited impact and were slight restrictions. The factual circumstances of the instant cases … illustrate that the imposition of short periods of leave together with restrictions of the kind described by the RLR policy can have greater impacts than they did in that case. However, there are a number of important points which need to be made about the RLR policy in connection with Article 8.”

It continued:

“130.

Firstly, the decision to grant … six months leave to remain does not interfere with the development of family life in principle. At its height, it may have an impact on the quality of that family life bearing in mind the potential insecurity which being granted successive periods of time limited leave may create. However, bearing in mind the objective of retaining the opportunity to remove someone excluded from the Refugee Convention by virtue of Article 1F at the earliest opportunity, the provision of such time limited leave is not in and of itself disproportionate in so far as it may interfere with the quality of the development of Article 8 rights and insofar as it is subject to the overall governing consideration that there may come a point in time when the failure to grant ILR will be unreasonable bearing in mind the particular circumstances of the case.

131.

Secondly, similar considerations apply to the restrictions which can be imposed by way of conditions on the time limited leave. In our view in principle they are a proportionate interference provided that they are carefully measured against the individual circumstances of the case (as required by the policy itself) and are no more than is necessary to achieve the objective of the policy set out above. This conclusion does not mean that in each and every case the imposition of time limited leave and all of the conditions contemplated by the policy would be proportionate. The policy must be applied in a fact sensitive manner on a case by case basis.

132.

Given that family life may continue notwithstanding a time limited grant of RLR, very strong evidence would be needed to prevail over the public interest and public protection considerations which are given effect in the three purposes of the RLR policy … so as to make it unreasonable for the respondent not to grant RLR for more than six months or not to impose the usual conditions. This is only likely to occur very rarely indeed, save that it may be easier, depending on the circumstances, for an individual to establish a case for departing from the usual condition prohibiting studies than the other three conditions mentioned”.

I have quoted that passage in full because I entirely agree with it. Ms Harrison submitted that it demonstrated a failure by the Tribunal to appreciate the extent of the interference with family life which the conditions typically imposed under the RLR policy, and the limited duration of leave granted, represent. I do not agree. I agree both with this Court in Kardi and with the UT that the restrictions in question, though a real interference with private life, are not of a fundamental character. I do not under-estimate how unsettling it may be to be deprived – at least for a long period – of any certainty about the long-term future; but, as the facts of the present cases show, that uncertainty need not prevent migrants who are excluded but irremovable from marrying and having a family, from working or studying or developing the ordinary elements of a private life. Such a degree of interference is entirely proportionate to the legitimate aims of the Secretary of State’s policy. (I should spell out, to avoid any misunderstanding, that that conclusion does not preclude the possibility of challenge to individual decisions taken under the policy. Such decisions need, as the UT says, to be taken on a fact-sensitive and case-specific basis.)

Besides that point, Ms Harrison’s essential case was that there would be many cases where it was disproportionate to continue to impose the full battery of conditions, and limit grants of leave to six months, because the migrant in question had been here for many years and plainly posed no threat to society and where there was no foreseeable prospect of being able to remove them; and that the policy was unlawful because it proceeded on the basis that such cases would be exceptional. More particularly, it was disproportionate to treat the grant of ILR as appropriate only “in exceptional circumstances”, which would be very rare. On the contrary, such cases should be regarded as normal, at least after a sufficient time had passed, as Collins J had recognised in N.

I do not accept that submission. It would no doubt be disproportionate for the Secretary of State to have a policy (or, since that is what it would be, a rule) that migrants who were excluded but irremovable should never be eligible for ILR, whatever the circumstances and however long they had been here. But that is not the effect of the RLR policy, which simply requires – as I have construed it (see paras. 40-41 above) – that the migrant be able to show compelling circumstances justifying a departure from the general rule. I see nothing disproportionate in having such a general rule. At the risk of repeating myself, it is important not to lose sight of the fact that the migrants in question are only in the predicament that they are because they have committed a serious crime.

In the UT the Claimants also advanced, under the general head of article 8, a case that the terms of the RLR policy contravened article 14 of the ECHR, read with article 8. They relied in particular on Av Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68, in which the House of Lords held that legislation providing for the detention without trial of non-nationals was incompatible with the Convention because it involved unlawful discrimination between UK nationals and non-nationals. The UT considered and rejected that case at paras. 122-127 of its judgment. That conclusion was not challenged in either MS’s or MBT’s grounds of appeal. Despite that, in Ms Harrison’s skeleton argument (para. 34 (4)) the UT’s conclusion was said to be wrong. However, she did not pursue the point in her oral submissions and in those circumstances I need say no more about it.

THE SECTION 55 GROUND

In her oral submissions Ms Harrison said that this ground added nothing to the article 8 ground. Ms Weston likewise did not address us on it. It is not of course a ground on which permission was granted. I need not therefore say anything more about it save that I would refuse permission.

I would reject the challenge to the lawfulness of the RLR policy.

THE INDIVIDUAL DECISIONS

Under this part of the appeal the focus shifts from the lawfulness of the RLR policy generally to the lawfulness of particular decisions, and specifically to decisions to refuse ILR, made under it. It is convenient, before I turn to the individual cases, to consider the correct approach to such a challenge as a matter of principle.

The starting-point must be the terms of the policy. I have said at paras. 40-41 above that the effect of that policy is that ILR should be granted only in exceptional circumstances – that is, where there are compelling reasons for a departure from the general rule. The essential question is thus whether in the case in question the Secretary of State should have found that such compelling reasons were present. It is trite to say that each case must turn on its own facts, but some general points do require consideration.

The first point to make, if only to clear the decks, is that there will be some classes of case where it is self-evident that there are no compelling circumstances justifying a departure from the general rule. An obvious example would be where the migrant continues to pose a risk to national security or has been guilty of serious criminal conduct since their admission. Another is likely to be where there is good reason to believe that the barriers to removability may soon be lifted, as a result of political changes in the migrant’s country of origin or otherwise. (Footnote: ⁴) It is also important to bear in mind that if ILR is granted the Secretary of State loses the power to impose conditions, so that if there is a continuing need for such conditions because of the nature of the offending, ILR will not be appropriate.

Those cases are not a problem. It gets more difficult in the kind of case that is at issue in these appeals – that is, where there is no foreseeable likelihood of removal becoming possible; where the migrant poses no risk to national security; and where there is no risk of repetition of the kind of conduct which has led to their exclusion – and where indeed he or she has made a settled and respectable life in this country. In such a case the policy of granting only short successive periods of discretionary leave, in order to create (in Richards LJ’s language in Kardi) “road blocks to settlement and to the further building up of private life” will have failed to achieve its object. It is the Secretary of State’s policy that even in cases of this kind the grant of ILR should be exceptional (in the sense explained above), because persons who are guilty of conduct which has led to their being excluded from humanitarian protection should not be welcome in this country and because the UK has international obligations to prevent the UK becoming a safe haven for such persons (see paragraphs 1.2.2, 1.3.1 and 4.12.1 of the Policy). It follows from what I have already said that I do not regard that as inherently illegitimate. But the question is, granted that overall policy and the rationale for it, what kind of circumstances might require an exception to be made.

Mr Tam’s primary position was that, although the policy recognised that such exceptional cases would occur, whether any particular case qualified would be a matter for the judgment of the Secretary of State; and, further, that the judgment was of such a nature that it would in practice – albeit, he accepted, not in theory – be unchallengeable on rationality grounds. He also submitted, which may or may not be another way of saying the same thing, that it was impossible to specify in the abstract what kind of circumstances might render a case sufficiently “exceptional”: such a case would be recognisable when it occurred. While I fully accept that this is an area in which the Secretary of State’s judgement is a wide one, I can see no reason why it should be in practice unreviewable or why it should not be possible to identify at least the kinds of consideration that might render a case exceptional. Without being in any way prescriptive, I would suggest three such considerations.

The first is length of residence in the UK. In Kardi, as we have seen, Richards LJ, while endorsing the “road blocks” element in the policy, acknowledged that there might come a point when a migrant has been in the UK so long that the only course reasonably open to the Secretary of State would be to grant ILR (see para. 45 above). (Footnote: ⁵) It is true that at the time that he was considering the version of the policy then in force did not directly address the grant of ILR or, therefore, say that it should be exceptional; but I nevertheless regard what he said as applicable to the policy in the form with which we are concerned. In other words, in principle a particular case may become exceptional because of the length of time that the migrant has been here. I emphasise the word “may”: length of residence is only one of the relevant factors and, as I say below, there will be cases where it would be legitimate to refuse ILR however long the migrant has been here because of the seriousness of the crimes in question. But in an appropriate case length of residence may suffice to bring a case into the exceptional category. It is not for the Court to suggest, still less prescribe, how long that period should be: even if that were constitutionally appropriate, which it is not, it must depend on the circumstances. But it is safe at least to point out that even a migrant with “ordinary” discretionary leave to remain will not normally be eligible for ILR until they have been here for ten years (see para. 12 (2) above), and the considerations underlying the Secretary of State’s policy would normally require that a migrant in the excluded category should have to wait much longer than that. It is also material that, other things being equal, a person who is present in the UK without leave only becomes eligible for ILR, even if he or she satisfies the suitability requirements, after twenty years – see paragraph 276ADE (1) (iii) of the Immigration Rules: I do not say that the two situations are analogous, but simply that that rule provides some context.

A second relevant consideration is the gravity of the conduct which has led the migrant to be excluded from humanitarian protection. Applicants are excluded if they are guilty of any of the kinds of conduct identified at paras. 5-6 above, which will always be serious; but there are degrees of seriousness. It is not difficult to conceive of conduct falling under any of the heads of article 1F which is so heinous that it would be justifiable to refuse to grant ILR to an irremovable migrant, however long they had been in the UK. But many “serious crimes" will not reach that level. The Secretary of State apparently regards the facts of N as an example of a case where, exceptionally, the grant of ILR, after ten years, would be justified: see para. 39 above. I do not think the label “terrorism” should be decisive in this assessment. It embraces too many different kinds of conduct, in which levels of culpability and harm will vary. I appreciate that the evidence available to the Secretary of State to make an assessment of the degree of culpability or harm may not always be very good, but that is not a reason for excluding this factor from consideration at all. (Footnote: ⁶)

A third relevant consideration will be the extent to which the migrant has changed since he or she committed the offences that have led to their exclusion from humanitarian protection. (This could be described as “rehabilitation”, but I prefer to avoid a term which carries baggage from its use in other contexts.) In some cases the conduct will have occurred when they were very young. But, whether that is so or not, good evidence that the migrant have repudiated his or her past conduct and turned their lives round so as to become valuable members of society (to the extent that the restrictions on their leave may have allowed) should weigh in the necessary assessment, particularly where there has been some very positive contribution to society.

In addition to those factors there may be a variety of individual circumstances which may by themselves, or in combination with others, bring the case into the exceptional category. These may or may not relate to the private or family life of the migrant or others, so as to raise particular issues under article 8.

The assessment in question is of course primarily one for the Secretary of State, as the statutory decision-maker. The question arises of by what standard such an assessment must be reviewed. This is not entirely straightforward. At first sight we might appear to be concerned with ordinary rationality review, and one where, for the reasons given by Mr Tam, the level of intensity of review should be low. However, to the extent that there is interference with the migrant’s article 8 rights, the Court is obliged to decide for itself whether those rights are infringed and accordingly to make the necessary judgement about proportionality: see, most recently, Caroopen v Secretary of State for the Home Department[2016] EWCA Civ 1307, [2017] 1 WLR 2339, at paras. 68-83 (pp. 2366-72). As to that, I do not believe that the refusal of ILR as such engages article 8 at all. In Jeunesse v Netherlands (2015) 60 EHRR 17 the Grand Chamber of the ECHR said, at para. 108:

“Where a Contracting State tolerates the presence of an alien in its territory thereby allowing him or her to await a decision on an application for a residence permit, an appeal against such a decision or a fresh application for a residence permit, such a Contracting State enables the alien to take part in the host country’s society, to form relationships and to create a family there. However, this does not automatically entail that the authorities of the Contracting State concerned are, as a result, under an obligation pursuant to Article 8 of the Convention to allow him or her to settle in their country. In a similar vein, confronting the authorities of the host country with family life as a fait accompli does not entail that those authorities are, as a result, under an obligation pursuant to Article 8 of the Convention to allow the applicant to settle in the country. The Court has previously held that, in general, persons in that situation have no entitlement to expect that a right of residence will be conferred upon them (see Chandra and Others v. the Netherlands (dec.), no. 53102/99, 13 May 2003; Benamar v. the Netherlands (dec.), no. 43786/04, 5 April 2005; Priya v. Denmark (dec.) no. 13594/03, 6 July 2006; Rodrigues da Silva and Hoogkamer v. the Netherlands, no. 50435/99, § 43, ECHR 2006-I; Darren Omoregie and Others v. Norway, no. 265/07, § 64, 31 July 2008; and B.V. v. Sweden (dec.), no. 57442/11, 13 November 2012).

The situation there considered is closely analogous to that of migrants who are excluded but irremovable, who likewise present the host country with a fait accompli. However it was common ground before us, as noted at para. 102 above, that decisions under the RLR policy did not consist simply in the refusal of ILR, and that viewed as a whole there was liable to be at least some interference with article 8 rights. In striking the proportionality balance, so far as necessary, it will be important for the Court to bear in mind that the interference with private and family life in these cases is typically of a limited character: see paras. 108-109 above. The assessment is also likely to involve aspects on which particular respect must be paid to the judgement of the Secretary of State. In all cases involving terrorist offences full weight must be accorded to her view that it is not in the public interest to allow this country to become a safe haven for terrorists and to any other, more specific, aspects of the case requiring a judgement on matters of national security or foreign relations. Particular respect should likewise be paid to any view she may express as to the public acceptability of the grant of ILR to migrants who have committed certain kinds of offending.

The decision letter runs to some eight pages and 50 paragraphs. Paras. 5-34 are headed “Restricted Leave”; paras. 35-42 (Footnote: ⁷) “Article 8”, and paras. 43-50 “Consideration of exceptional circumstances”. There is, as is usual, a good deal of boiler-plate drafting, and the actual reasoning peculiar to MS’s case is somewhat erratically distributed between the different headings. I take them in turn.

Restricted Leave. Paras. 5-9 set out various matters of background including a summary of the terms of the RLR policy. Para. 10 contains the overall decision on MS’s application: he is told that the grant of ILR is not warranted either under the Immigration Rules or “the residual discretion outside the Rules” but that he would be granted restricted leave, subject to conditions, and that “exceptionally” the period would be two years rather than the normal six months. Paras. 13-22 explain the conditions imposed. The reasoning about the refusal of ILR appears at paras. 23-34. Paras. 23-27 set out the policy background to the RLR policy. Paras. 28-31 summarise SIAC’s findings about MS’s involvement in terrorism. Para. 32 sets out the terms of paragraph 322 (5) of the Immigration Rules. Paras. 33-34 read as follows:

“33.

Paragraph 322 (5) is a broad consideration that takes account of a range of matters not limited to criminal convictions or the risk of reoffending alone. By statute rehabilitation of offenders is not relevant to immigration decisions so offending must always be taken into account. However, it is recognised that the Courts have indicated that there will be occasions where a concept of rehabilitation of offenders may be relevant on the basis that there will be some circumstances where it is legitimate to consider that the individual can put their offending ‘behind them’. However, even where the rehabilitation of offenders’ provisions can apply the most serious offending is excluded from them in recognition of the fact that some offences cannot be regarded as diminishing in all significance by the mere elapse of time and adherence to law abiding conduct which is expected of all. Consideration has been given to whether the nature of the reason for exclusion from Article 1F of the Refugee Convention is one that can be regarded as posing an especially serious threat to the community in the UK and overseas. Any possibility for deterrence of such involvement by others or reengagement by past offenders is especially important to the public interest. It is a key part of the UK’s international stance that it condemns terrorism and crimes against humanity and will not tolerate or condone such conduct. The UK maintains a policy of exclusion of those who advocate terrorism action. Other examples of the UK’s firm stance on terrorism is given by the resettlement policy for Mandate Refugees which excludes those who have been involved in terrorism of crimes against humanity. The UK Government will not harbour terrorists or those who commit crimes against humanity save where it is bound by Article 3 ECHR not to remove them for the time being. Consistent with the need to maintain a firm approach to terrorism and crime against humanity, whilst the possibility of granting permanent settlement in the UK to those found to be involved in terrorism or crimes against humanity is not excluded altogether, it is not likely to be justified save in exceptional circumstances given the adverse impact on the public interest. Such exceptional circumstances cannot be defined in advance but cases are likely to be self-evident from their compelling nature.

34.

The circumstances of your case have been examined to determine if they are such as to justify the grant of permanent settlement notwithstanding the judicial findings in relation to terrorism. It is noted that you have been resident in the UK for 20 years as a result of the Article 3 ECHR obstacle to removal. That period is not regarded as so exceptional as to justify the grant of ILR in itself. It is noted that during that period there have been no convictions and consideration has been given to the evidence provided at the hearing to demonstrate that you have provided due assistance to your family and immediate community. Consideration has been given also to your family circumstances and the submissions made in relation to them in support of the application for ILR. Taking account of all the matters that weigh in your favour it has been determined they are not sufficient to displace the serious grounds pursuant to paragraph 322 (5) to justify the grant of ILR. However, your circumstances are considered as sufficient to justify the grant of a longer period of RL than would be usual.”

The final sentence is the only explanation offered for the grant of a two-year period. The most obvious explanation, though it is no more than an inference on my part, is that it represents a first step, and that if circumstances are the same at the end of the two-year period, a longer period of leave, or indeed ILR, will then be considered.

Article 8. Para. 35 starts by saying that the Secretary of State does not accept that the refusal of ILR or the grant of restricted leave limited to two years engages article 8, but that the Secretary of State will assume that it does so, “to enable a full consideration”. Paras. 36-38 set out the background law, including the Secretary of State’s duty under section 55 of the 2009 Act. Para. 39 notes that MS has lived in the UK for twenty years and that his wife and three children are all British citizens. Paras. 40-42 (these are in fact five paragraphs rather than three – see n. 7) conclude that MS does not satisfy the suitability requirements in Appendix FM to the Immigration Rules, which reflect the Secretary of State’s judgment of the requirements of article 8, because of his involvement in terrorism. Thus in practice, as Mr Tam acknowledged, the reasoning is equivalent to that in the previous section of the letter (which, as will have been observed, also purported to take into account MS’s “family circumstances”).

Exceptional circumstances. Under this heading the letter considers whether ILR should be granted in the best interests of MS’s children, pursuant to the Secretary of State’s duty under section 55 of the 2009 Act. Again, the reasoning essentially reproduces what has already been said.

Collins J’s reasoning, as regards the Secretary of State’s refusal of ILR, can be summarised as follows.

Paras. 1-7 of the judgment are essentially introductory. At paras. 8-12 Collins J summarises the terms of the January 2015 Instruction. He notes the reference in section 4.12 to his earlier decision in N. As to that, he says at para. 13:

“The importance of the instruction in 4.12 is that it recognises that, despite the proper maintenance of the view that it is not conducive to the public good that a person be allowed to remain, it may be appropriate to grant him ILR. Further, it recognises that one who has been here lawfully, in that he has had leave to remain in being for at least 10 years may qualify for ILR. It must be borne in mind that if a person such as the claimant whose presence in the UK is not conducive to the public good can be removed his leave, whether limited or indefinite, can be brought to an end by a deportation order. There will of course be a right of appeal, but that will apply whether or not any leave is still subsisting, if, as will almost certainly be the case, human rights grounds are relied on.”

I note at this point that his reading of the effect of the policy does not correspond to mine: see para. 39 above.

At paras. 14-16 Collins J summarises the facts of MS’s case, including that he has been here for twenty years; that there had been a nine-year delay in processing his original asylum application; and the contents of the disclosed materials (see para. 73 above). He concludes para. 17 by observing:

“It seems clear from this that there is no reason to believe that it would be possible to remove him to India in the foreseeable future and it is clear that he is no longer a risk. Thus on its face the approach set out in N which is referred to in the instructions on the application of the RLR policy should apply to this case.”

At para. 18 he summarises the terms of the decision letter. He quotes from para. 33 the statement that “the most serious offending is excluded from them because some offences cannot be regarded as diminishing in all significance by the mere elapse of time and adherence to law abiding conduct which is expected of all” and comments:

“That is not in conformity with the RLR policy which recognises the possibility of rehabilitation by lapse of time.”

He also refers to the emphasis placed on the importance of excluding people who advocate terrorism but continues:

“That is no doubt appropriate, but it fails to take into account the assessment that the claimant was no longer to be considered a risk to the security of the UK since he no longer advocated terrorist action.”

He quotes the statement in para. 33 of the letter that “exceptional circumstances cannot be defined in advance but cases are likely to be self-evident from their compelling nature”. He continues, at para. 19:

“While I recognise that it is for the defendant to decide what amount to exceptional circumstances, it is necessary for her to take account of all relevant matters and to show in a given case that that has been done. The omission to refer to the lack of any risk to security and the very remote possibility of return to India within the foreseeable future is important. I put to Ms Anderson that, if the evidence showed that there could never be any chance of return within a person's lifetime, it would mean that to maintain limited leave was unreasonable. She was not willing to accept even that on the basis that it would run contrary to the need to show the world that the UK would not accept terrorists. Such an approach is not only unreasonable but contrary to the RLR policy itself.”

By that point, therefore, Collins J has decided that the decision is unlawful. But he then proceeds to consider two authorities relied on by Ms Anderson – being George and Kardi. He regards George as consistent with his decision and seeks to distinguish Kardi. He also considers in some detail the effect of section 117B of the Nationality, Immigration and Asylum Act 2002 and, in order to rebut the suggestion that MS’s presence should be treated as “precarious”, the recent decision of this Court in Rhuppiahv Secretary of State for the Home Department [2016] EWCA Civ 803, [2016] 1 WLR 4203. Mr Tam confirmed that it was not part of his case that section 117B had any direct application, and I need not accordingly give any details of this part of the judgment.

Collins J concluded this part of his judgment by saying:

“28.

The only purpose now of a grant of limited as opposed to indefinite leave is to leave open the opportunity to remove the claimant and make clear to him that his presence here is not conducive to the public good and that, if he could be, he should be removed. He has already had full opportunity to establish not only family life but private life. Thus there is no need for any of the conditions which can only be imposed if limited leave as opposed to indefinite leave is granted. It could be said that the 9 years he was here without conditions points clearly in that direction.

29.

In my judgment, if this case is not one in which the time has come to grant ILR, it is difficult to see what circumstances would qualify for ILR. The last sentence of paragraph 33 of the decision letter which said that exceptional circumstances which would justify ILR could not be defined in advance but would be likely to be self-evident from the compelling nature I have already criticised. But, if it is to be applied, I am satisfied that they are shown here.”

The order made by Collins J was that the Secretary of State’s decision be quashed and that she should reconsider the application “in accordance with the judgment herein”. That formulation respects constitutional propriety, but the effect of the passage quoted above is that the only rational decision open to her was to grant ILR.

Mr Tam in his oral submissions pointed to six errors in Collins J’s reasoning. The first and most fundamental is that he treated the reference in the policy to N as importing a norm that ILR would be granted (other things being equal) after ten years. In my view it is clear that that was indeed the basis of his reasoning (see paras. 131-132 above); and for the reasons given at para. 39 above I think that it was wrong. In those circumstances I see no advantage in reviewing at length Mr Tam’s other challenges, most of which I have in any event addressed to a greater or lesser extent elsewhere in this judgment.

It follows that this appeal must be allowed unless Collins J should have reached the same decision even on a correct understanding of the policy. I have not found this easy. The case appears to be in the class which I have identified at para. 118 above. MS has led a settled and respectable life here for twenty years, despite having lived for over nine years in circumstances where he was not the subject of any conditions. He is not a security risk. The only real basis for denying him ILR is the importance of emphasising the UK’s hostility to terrorism and its unwillingness to allow terrorists safe haven; and that is essentially how the Secretary of State seeks to justify the decision in her decision letter. That is, as I have said, a consideration which is entitled to great weight; but, as I have also said, very long residence here may be sufficient to bring a case within the exceptional category. I can well understand why, even granted that he misconstrued the Secretary of State’s policy, Collins J regarded twenty years as (more than) long enough. In the end, however, and not without hesitation, I think that the Secretary of State was entitled to give the weight that she did to her overall policy objective, and I would hold that her decision to refuse ILR was rational. MS’s involvement in terrorism was indeed a long time ago but it was serious. Although I can understand the stresses and anxieties as a result of his precarious status which are referred to in the evidence, this is not a case where any specific or serious interference with family or private life is established.

MS filed a Respondent’s Notice seeking to uphold Collins J’s decision on the basis that the decision was in breach of his rights under article 8. I would dismiss that challenge for essentially the same reasons. Giving proper weight to the Secretary of State’s policy objectives underlying the grant of restricted leave I regard it as proportionate to withhold ILR. It is important to bear in mind that the withholding of ILR is not in itself an interference with article 8 rights. What we are concerned with here is the stress and anxiety associated with the grant of very short periods of leave and its impact of the consequent uncertainty on family and private life. That interference is real but, as I have said, limited. I take into account that the short-term uncertainty has been mitigated by the grant of two years’ leave rather than the previous six months.

I would accordingly allow the Secretary of State’s appeal. The current leave to remain will of course expire in the next year and MS will no doubt apply again for ILR. That application should identify carefully and with evidential support the compelling reasons why MS says that his case falls outside the Secretary of State’s policy of withholding ILR from migrants who are excluded but irremovable. If the Secretary of State’s decision is to maintain that refusal she will need to explain with particularity why she regards those reasons as insufficient.

As explained at para. 62 above, the UT’s decision was directed at the Secretary of State’s most recent decision, which was dated 20 March 2015. Like the decision in MS’s case, it is rather convoluted in its structure. It can be summarised as follows.

The first substantial heading is “Restricted Leave” (paras. 3-10). It summarises the RLR policy and states the Secretary of State’s decision to grant six months’ leave, with conditions. Paras. 11-18 consider MBT’s application for ILR. It is rejected on the basis (a) that MBT does not satisfy the requirements of paragraph 322 (1) (c) of the Immigration Rules because he has been sentenced to a term of at least four years’ imprisonment and (b) that his exclusion from refugee status under article 1F indicates that his claim also falls for refusal under paragraph 322 (5).

Paras. 19-28 consider the applicability of Appendix FM of the Immigration Rules, which relate to family life. MBT is said not to qualify because he fails to satisfy the suitability requirements on account of his previous involvement in terrorism. Paras. 29-31 reach the equivalent conclusion as regards the application of paragraph 276ADE, which incorporates the suitability requirements in Appendix FM.

The final section, which comprises paras. 32-41, is headed “Consideration of exceptional circumstances Section 55 of the Borders, Citizenship and Immigration Act 2009 consideration”. Paras. 32-36 are concerned specifically with section 55. Para. 35 reads:

“It is noted that a longer period of limited leave or indefinite leave to remain may arguably be in your children's best interests because it would reduce the level of uncertainty regarding your status in the UK. However, it is considered that your children's best interests in this regard are outweighed by the public interest reasons for removing you from the UK.”

Paras. 37 and 38 read:

“37.

Therefore, it is considered that there are no exceptional circumstances in your case because the decision to grant you six months’ Restricted Leave will not result in a breach of the UK's obligations under article 8 of the ECHR, and having considered all the available evidence, it is considered that you do not qualify for leave to remain outside the Immigration Rules on the basis of Article 8.

38.

The Secretary of State has an obligation to maintain effective immigration control, prevent crime and disorder and protect the rights and freedoms of others, specifically due to the acts of terrorism you previously committed and the need for the UK not to act as a refuge for those who are excluded from the Refugee convention due to their criminality and due to committing acts of terrorism.”

(Something has gone wrong with the English in para. 38, but I reproduce it as it appears.) Despite the introductory “therefore”, those two paragraphs evidently go beyond a consideration of section 55 of the 2009 Act. Para. 37 is concerned with article 8; and para. 38 can perhaps be read as considering whether there are exceptional circumstances justifying the grant of ILR for the purpose of the RLR policy, though if so it would have been better if that had been done explicitly.

Since it was evident that MBT’s application could not succeed under the Rules and depended on the Secretary of State making an “exceptional” decision under the RLR policy, it is unsatisfactory that the decision letter addresses so little attention to the latter aspect. Ms Weston observed in her oral submissions that the letter gives little evidence of a fact-sensitive assessment considering the particular circumstances of MBT’s case. There is force in that criticism, though the precise degree of force may depend on how explicitly MBT’s case was advanced in the application. But this was not a ground of appeal, and I need say no more than that in the case of any further application I would expect MBT’s advisers to identify with specificity the exceptional circumstances on which they rely, and the Secretary of State to address those circumstances with specificity in her decision.

At para. 62 of its judgment the UT quotes Ms Weston’s formulation of the issues raised by MBT’s challenge as follows:

“(1)

Was it unlawful to refuse to grant MBT ILR and to grant him RLR given that:

(i)

The Respondent refused to consider whether he should be granted ILR until he had completed 10 years DL,

(ii)

He had resided lawfully in the UK since 13 May 1999 as an asylum seeker, there was a delay of 5 years before he was granted DLR in July 2004, four years between his application of 2005 and grant of 2009 and four years between his application of 2009 and grant of 2013 during which periods there was little or no contact from the respondent;

(iii)

He had not been subject to any national security or other restriction, had lived a law-abiding life in the UK and was ‘rehabilitated’;

(iv)

He has a wife and four British citizen children all settled in the UK, the children knowing no life outside England.

(2)

Could the RLR policy rationally be applied to MBT?”

(Issue (1) (i) relates to the 2013 decision with which we are not now concerned.)

The UT addressed those issues at paras. 164-171 of its judgment. I need not reproduce them here. In short, it held that the Secretary of State had taken into account the impact on MBT of the refusal of ILR and the grant of only six months’ leave, coupled with conditions but that her decision was justified by the purposes of the RLR policy and was proportionate.

The relevant ground of appeal is ground 5, which reads as follows:

“The Upper Tribunal misdirected itself as to whether the requirement of fair dealing required the respondent to consider (i) disapplying the ILR policy and/or (ii) granting settlement to the Applicant in accordance with a written indication to him in July 2004 and her discretionary leave policy. The tribunal erred in law in concluding that the consideration of whether to grant settlement on an “exceptional” basis by the Respondent’s post-issue decision dated 20 March 2015 could or did meet the Respondents’ obligation to deal fairly and lawfully with the Applicant.”

As developed in Ms Weston’s skeleton argument, the essential point is that when MBT was first granted discretionary leave in 2004 the policy was that he would be eligible to apply for ILR after ten years, and that it was unfair that she should subsequently depart from that when MBT had “relied on the terms of the original grant of discretionary leave”. She says, as is the case, that the UT failed to deal with this point.

It is not possible to know why the UT did not address this argument. It does not appear in its summary of the issues as set out above, but we were told that it did feature in Ms Weston’s skeleton argument below. However, it is not necessary to resolve that question since I am satisfied that the point is bad. It is well recognised that migrants have no legitimate expectation that the Secretary of State’s policy will not change from time to time, and thus that any applications fall to be dealt with in accordance with the policy or rules in place at the time of decision. When this was put to Ms Weston in oral submissions she said that she was not arguing that MBT’s application should have been dealt with under the old DL policy but only that the Secretary of State should have taken into account, as a matter of fairness, that MBT had embarked on family life at a time when he thought that he would be entitled to ILR after ten years.

I cannot accept that argument. We do not appear to have a date for MBT’s marriage, but his first three children were born between 2001 and 2003 – that is, before the first grant of discretionary leave. It is in any event extremely implausible, and unsupported by any evidence, that he should have made a decision whether to embark on family life in reliance on any particular expectation about his eventual entitlement to ILR. Indeed the knowledge that he was excluded from the Convention and only permitted to remain on the basis that he was irremovable – reinforced by the successive grant of periods of leave limited to six months – will have made it clear to him that his position was indeed precarious. I cannot in fact see that he even made this point when he applied for ILR, but in any event the Secretary of State was fully entitled to attach no weight to it.

MBT did not challenge the dismissal by the UT of the bases of challenge set out at para. 144 above, so I need say nothing about that aspect save to make the obvious point that the longer he remains in the UK the closer he gets to a point at which, other things being equal, his case may become “exceptional” within the meaning of the policy.

I would dismiss the appeals of MS and MBT in the UT proceedings and allow the appeal of the Secretary of State in MS2.

I agree.

I also agree.