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:

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 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 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:

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:

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:

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

The statement begins:

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

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:

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:

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

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:

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.

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.

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:

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:

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:

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

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

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:

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:

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:

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 Huang v 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:

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:

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):

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:

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 19 January 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:

On 1 October 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:

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:

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. This comprises

the ultra vires ground (raised by MS only), for which permission has not been given;

the Alvi ground;

the fettering discretion ground;

the article 8 ground;

the section 55 ground, for which permission has not been given.

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:

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.

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:

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):

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:

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.

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:

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:

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:

I would accordingly dismiss this ground of appeal.

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.

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:

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):

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:

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:

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 A v 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.

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.

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:

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:

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:

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:

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:

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 Rhuppiah v 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:

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:

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:

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:

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.