AO & Anor, R (on the application of) v Secretary of State for the Home Department

These test cases concern the Secretary of State’s policy of granting leave to remain in the United Kingdom for those sometimes called foreign national prisoners. In particular it focuses on those who have committed an offence in the United Kingdom which is deemed serious but whose removal from the country would breach the European Convention on Human Rights (“ECHR”). So at the outset it is important to appreciate that there is no question in these cases of persons being deported from this country. Rather, the issue concerns the type of leave to remain they have while they are here. Under the Secretary of State’s policy, all offences attracting a sentence of 12 months or more are deemed serious crimes and automatically exclude a person from obtaining humanitarian protection leave. The same exclusion category applies to discretionary leave: a person having committed a serious crime will not normally receive a grant of discretionary leave for a period exceeding six months. The policy also stipulates that while those who have been granted discretionary leave are ordinarily eligible for indefinite leave to remain, i.e. settlement, after six years, those who have committed serious crimes may only obtain indefinite leave to remain after 10 years of discretionary leave to remain.

While there is some overlap between the basis to the claims of Kinene Mayaya (“KM”) on the one hand, and AO and HE on the other, there are significant differences. For one thing KM committed a passport offence and the focus of his claim is on the lawfulness of treating this as a serious crime. AO and HE accept that they have committed serious crimes (drug importation and murder respectively) so their attack is more on how the policy was applied in their cases. With all three claimants, however, there is a reliance on the long-established doctrine that a public official like the Secretary of State, entrusted with a discretionary power, must not unlawfully fetter the exercise of her discretion. All claimants also, albeit for different purposes, invoke the principle enunciated in Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719, [2010] 3 WLR 1526, that the Secretary of State should not, through her policies, apply more restrictive criteria affecting an individual’s status and entitlements than those contained in the Immigration Rules, since unlike the rules they are not subject to Parliamentary scrutiny.

Kinene Mayaya (“KM”) came from the Democratic Republic of the Congo. He arrived in the United Kingdom on 26 March 1999 and claimed asylum the following day. His claim was refused in mid July 2002, and his appeal subsequently dismissed. Meanwhile, in March 2001, he had been convicted of theft and given a conditional discharge. In early February 2003 he made a human rights application, which was refused. An appeal was dismissed following a hearing before an adjudicator. Permission to appeal was granted but the appeal was subsequently refused in September 2004. So by the end of 2004 KM’s appeal rights were exhausted and he was in the United Kingdom unlawfully.

In March 2005 KM entered a relationship with another Congolese, Gudule Makuntima Uzima, who had herself entered the United Kingdom in September 2003, accompanied by her younger sister. Her initial claim for asylum was refused and her subsequent appeal dismissed. In the following years KM and Ms Uzima had three daughters, in March 2006, March 2007 and August 2010. (The two eldest became British citizens in May 2011). KM and Ms Uzima have also had the care of Ms Uzima’s younger sister.

In mid July 2005 KM was arrested while working illegally in a warehouse under an assumed identity. He pleaded guilty to one count in respect of possession of a false instrument, a Spanish passport, and to another count of obtaining pecuniary advantage by deception earlier in the year by falsely representing that he was someone else, the person named in a French passport. (The exact nature of KM’s offending was only evident towards the end of the hearing when his solicitors obtained a copy of the indictment. In these cases the court should have before it the indictment, the prosecution’s opening of the facts (on a plea), and the judge’s sentencing remarks). On 10 October 2005 in the Crown Court at Stoke, HH Judge Glenn sentenced KM to a term of 18 months’ imprisonment, 12 months for the passport offence, and 6 months for the deception, the sentences to be consecutive. He said he needed to work to support himself and his new partner. In sentencing KM the judge noted that this was not his first conviction for dishonesty. The judge referred to the decision in R v Kolawole [2004] EWCA Crim 3047, [2005] Cr App R(S) 711, when the Court of Appeal said that deterrent sentences were justified. The judge accorded KM a one third discount on the sentence because of his early guilty plea. The judge said that deportation was a matter for the Secretary of State, not for him, and made no recommendation to deport. On 9 March 2006 KM was released on home detention curfew, his electronic tag being removed on 13 April 2006.

On 8 May 2006 the Secretary of State made a decision to deport KM from the United Kingdom. He appealed that decision. On 21 January 2008 the Asylum and Immigration Tribunal allowed his appeal to the extent that leave to remain should be granted to KM until such time as he and his family could be lawfully removed. In fact within a fortnight Ms Uzima and her daughters were granted indefinite leave to remain. There then followed correspondence between KM’s solicitors and the Secretary of State, in which they drew attention to the Tribunal finding and requested indefinite leave to remain in line with Ms Uzima and her daughters. In mid 2008 KM was granted discretionary leave for 6 months, without explanation. Despite requests, no reasons were forthcoming, although in July 2009 the Secretary of State explained that there was a backlog of cases. Meanwhile, in May 2009 KM was convicted of driving while disqualified and using a vehicle while uninsured, for which he was sentenced to a community order of 150 hours unpaid work and disqualified from driving for 12 months. The Secretary of State decided that this did not warrant further deportation action.

In mid November 2010 KM was granted a further period of 6 months discretionary leave. On 18 November 2010, in reply to KM’s solicitors, the Secretary of State explained that KM was excluded from humanitarian protection, and therefore a standard issue of discretionary leave, by virtue of his criminal offence. That is the first decision challenged in this judicial review. KM’s solicitors sent a letter before claim on 22 December 2010, in which they set out the case for indefinite leave to remain or at least three years’ discretionary leave to remain. In response on 4 February 2011 the Secretary of State repeated in effect the earlier explanation.

“A person who normally becomes eligible for settlement after completing a period of six years discretionary leave. Your client is not eligible for consideration for settlement until they have completed ten continuous years of discretionary leave as your client is excluded from humanitarian protection (and therefore a standard issue of discretionary leave) as he committed a serious crime of Obtaining a Pecuniary Advantage and Having a False Instrument for which he received a sentence of 18 months’ imprisonment”.

This is the second decision challenged in the proceedings.

This judicial review was launched on 16 February 2011. On 5 August 2011 the Secretary of State granted KM three years’ discretionary leave. She stated that by virtue of the conviction, the claimant was excluded from humanitarian protection under paragraph 339D of the Immigration Rules. He would not therefore be eligible for consideration for indefinite leave to remain until he had completed 10 years of discretionary leave. His was not considered to be a case where at the present indefinite leave should be granted exceptionally, outside the terms of the policy.

AO, a national of Nigeria, was born in 1945 and arrived in the United Kingdom on 13 November 1990. He was found in possession of heroin and charged with importing that drug. He assisted Customs & Excise in the arrest of two other members of the drugs ring, one being UO. On 14 February 1991 in the Crown Court at Liverpool AO pleaded guilty to being knowingly concerned in the fraudulent evasion of the prohibition on the importation of heroin. The heroin concerned had a street value of some £36,270. On 11 June HH Judge Clarke sentenced him to 6 ½ years imprisonment. Because of the assistance AO had given, the judge later varied that sentence, reducing it to 5 years’ imprisonment. A jury convicted UO of the same offence – at the trial AO gave evidence for the prosecution – and he was sentenced to 11 years imprisonment. Both AO and UO appealed to the Court of Appeal, Criminal Division, against sentence. UO’s sentence was reduced to 9 years imprisonment. Given that reduction, the court decided that for reasons of parity AO’s sentence should be 4, not 5, years’ imprisonment.

On 27 May 1992 AO claimed asylum on the basis that he would suffer reprisals from drug criminals in Nigeria because of his co-operation with the authorities here. The asylum application was refused and in April 1994 an appeal to the Immigration Appeal Tribunal failed. After the Human Rights Act 1998 came into force, AO advanced claims under articles 2, 3 and 8 of the European Convention on Human Rights. That was in late 2000 but when the Secretary of State refused the claim it was not pursued. When a further human rights claim came before an immigration adjudicator in June 2003, the adjudicator found that AO’s article 3 rights would be infringed by return to Nigeria because of a well-founded fear of persecution by drug barons in Nigeria; the inability of the Nigerian police to protect him; the possibility that he could be prosecuted under Nigerian law for the drugs import, despite his prosecution here; and his medical condition. In October 2004 the Secretary of State wrote that he had decided that it was appropriate to grant AO discretionary leave to remain for 6 months.

In July 2005 the Secretary of State refused the claimant indefinite leave to remain. The claimant appealed, and in October 2005 an immigration judge held that AO still remained at risk of drugs dealers if returned to Nigeria. That would affect his private life so article 8 was also engaged. The judge observed that for the foreseeable future AO would have to keep making applications for an extension of leave to remain, which to his mind was unproductive: [47]. A senior immigration judge rejected the Secretary of State’s application for reconsideration of the decision. In February 2006 AO was admitted as a solicitor in England and Wales.

Then in early 2007 AO wrote several letters demanding indefinite leave to remain. In September 2007 he wrote again, requesting an extension of his stay in the United Kingdom or settlement. In that letter he revealed that at some point he had briefly returned to Nigeria to see his children. His previous solicitors took up his case for indefinite leave to remain in early 2009, highlighting the delay in addressing his case and what was claimed to be the irrationality, unreasonableness and maladministration on the part of the Secretary of State. An application for judicial review in April 2009 led to a consent order the following month, when the Secretary of State agreed to give immediate consideration to AO’s case. On 21 August 2009 the Secretary of State rejected AO’s case for indefinite leave to remain, but granted 6 months discretionary leave. This is the first decision challenged in this judicial review. There was reference in the letter to R (N) v Secretary of State for the Home Department [2009] EWHC 1581 (Admin). The claimant fell within an excluded category because of his offending.

“[W]e have examined any periods of delay in your client’s case and have taken this into consideration. When taken together, any delay and periods of your client’s Discretionary Leave, they do not meet the ten year requirement under the policy on criminal cases.”

The previous claimant’s solicitors wrote on 5 November 2009, challenging the decision of 21 August 2009 as irrational, unreasonable and an unlawful fettering of discretion. The understanding of R (N) was said to be wrong. Delay in the claimant’s case was some 4 years and 10 months. The Secretary of State’s response on 7 December 2009 – the second decision under challenge – acknowledged that there was delay in AO’s case, but asserted that:

“even if your client had experienced no delay in being granted Discretionary Leave and he was granted [it] immediately after the appeal determination of 27 June 2003, he would still not have amassed ten years’ Discretionary Leave”

AO’s case had been considered on its merits, the letter ran, and an award of 6 months discretionary leave was not unreasonable. The claimant’s pre-action letter followed on 22 December 2009, challenging the decision letter of 7 December. The Secretary of State had either failed to take into account all the factors put forward, or given inadequate reasons for refusing to lift the exclusion from full discretionary leave. The decision letter of 7 December 2009 was unreasonable and irrational.

The application for judicial review was lodged on 9 February 2010, the acknowledgment of service followed, and Frances Patterson QC, sitting as a deputy High Court judge, gave permission on 19 July 2010. AO’s case was then linked with others. (The Secretary of State agreed to reconsider all the linked cases, which led to a consent order.) In a memorandum to the chief executive of the UK Border Agency, an official wrote in late October 2010 that AO’s removal from the United Kingdom was remote, considering the private life he had established and his success before the adjudicator with article 3. In a letter of 8 December 2010 the Secretary of State took the third decision currently under challenge, that AO would be granted 3 years’ discretionary leave.

“Bearing in mind the UK Border Agency policy as described above, and the seriousness of your client’s previous conviction it has not been considered appropriate to grant your client Indefinite Leave to Remain (ILR) at this point. He is not eligible under the policy, and having considered all of the circumstances and representations this is not considered a case where ILR should be granted exceptionally outside the terms of the policy at this time

…

In your client’s case, careful consideration has been given to the circumstances and representations made. Particular regard has been given to the ties that your client has established in the UK, along with the delay that he has experienced in the consideration of his application for further leave.”

There was a cross-reference to earlier concerns about AO’s health and age and the letter concluded with regret for the delay in considering his case.

In September 1978 HE, a citizen of Sierra Leone, arrived in the United Kingdom as a student. He was granted leave to enter for 12 months, subsequently extended until September 1980. In mid 1982 he married a British citizen and adopted his first wife’s child. The couple had a child together in 1981. He was granted indefinite leave to remain due to his marriage. That marriage was dissolved two years later.

Then on 22 June 1990, at the Crown Court in Sheffield, HE was convicted of murder and sentenced to life imprisonment. The circumstances of the murder are especially striking. Six weeks before the murder HE had formed a relationship with the victim, a divorced mother of three young children. On the night of the murder HE and the victim were out and met up with friends at a club. HE was in an excitable state and was spoken to by club officials. At some point in the evening an argument broke out between HE and the victim. They then left the premises together. Shortly after reaching home, the victim visited her neighbour to check on her children, who were staying there overnight. She commented to the neighbour about HE’s conduct during the evening and stated that it was her intention to end the relationship. After she returned home HE murdered her by means of a stab wound to the back, which pierced the heart and almost continued to pierce the chest. She died in front of her 11 year old daughter, having suffered a massive loss of blood. HE’s demeanour at that time was described as “calm with no signs of distress”.

Following the conviction the Secretary of State decided to deport HE. His appeal in relation to that failed, as did an appeal against a refusal of an asylum claim in 1995. In 2001, however, when he was still in prison, he succeeded before an adjudicator on article 8 ECHR grounds. At that hearing the Secretary of State accepted that HE posed no risk to the public, that the evidence depicted him as a model prisoner, who had availed himself of available rehabilitation services while incarcerated. The adjudicator held that in prison HE had lost touch with his son and stepdaughter, so that it was difficult to say he had a family life. However, he had a private life “based on his contacts within prison and with support of local religions and charitable services that offer assistance to prisoners …” Then in a short conclusion which, to my mind is bewildering, the adjudicator concluded that it would be in breach of article 8 to remove HE to Sierra Leone.

HE was released from prison in July 2003. On 21 October 2003 he was granted discretionary leave to remain for 12 months. His solicitors requested indefinite leave to remain in October 2004 but, after its rejection the following month, little seemed to occur until they sent a pre-protocol letter on his behalf in June 2008. That generated an internal memorandum in November 2008 in which responsibility for delay was accepted. In December 2008 discretionary leave for a further 6 months was granted. In May 2009 the claimant’s probation officer stated that there was a low likelihood of HE’s re-offending. HE’s solicitors sent a lengthy letter to the Secretary of State the following month, dated 19 June 2009. It included supportive letters from his partner and her two daughters, and a number of helpful character references. HE should no longer be excluded from discretionary leave, it said, because of the exceptional circumstances of his case, his length of residence in the United Kingdom, his family life with his partner and her two daughters, his rehabilitation and his employment. By this time HE was working full time as a support worker.

An internal memorandum to the chief executive of the UK Border Agency in September 2009 recommended that HE be excluded from a full grant of discretionary leave in the light of his conviction and life sentence, regardless of whether he was a continuing risk to the public. That was done in a standard form letter dated 21 September 2009, the first decision letter challenged in this judicial review. Later that month there was internal discussion of HE’s case. Matthew Bligh, an assistant director in the UK Border Agency, wrote that in the last 9 years, HE had spent 6 years waiting for further leave applications to be considered. He added:

“Our justification for 6 months’ DL [discretionary leave] in such cases is that we are actively reviewing the case to see if the circumstances which prevented deportation still subsist. It doesn’t look like there is any active review going on with Mr E’s case.

…

In any event he hasn’t got 10 years’ continuous lawful residence yet...so it would be odd to make an exception to the general rule for a convicted murderer.”

The second decision letter challenged in this judicial review, dated 17 December 2009, was issued in response to HE’s solicitors requesting an explanation for the failure to grant 3 years discretionary leave or indefinite leave to remain. The letter referred to the discretionary leave policy and the incorporation in it of the grounds of exclusion in paragraph 339D of the Immigration Rules via the policy on humanitarian protection. The letter then read:

“Therefore, in the light of his conviction and life sentence, regardless of whether he is a continuing risk to the public or not, it is considered that your client can be excluded from a grant of full discretionary leave. Your client can only apply for consideration for settlement in the United Kingdom after he has completed a 10 year period of continuous discretionary leave.”

HE’s application for judicial review, with grounds, was lodged the following day, 18 December 2009. Ultimately, in June 2010, a deputy judge, Christopher Symons QC, ordered a rolled-up hearing. There was internal discussion of HE’s case in November and December 2010. The senior caseworker responsible for HE’s file confirmed that there was no intention of pursuing HE’s removal. He added:

“There does not seem to be a specific punitive function to the 6 month DL policy, so I think discretion can be exercised given the merits of this case. If a person is irremovable because of [article 8 ECHR] 8, then these reasons are clearly strengthened by the passage of time. Actively reviewing their removal prospects every 6 months is superficial as family/private life gets stronger every six months.

…

I think the best course of action (if we depart from 6 month blocks) would be to grant sufficient DL to bring him up to 10 years continuous lawful residence, after which time we can consider settlement.”

On 15 December 2010 HE was granted three years discretionary leave in the third decision letter challenged in this judicial review. It was in standard form. On 23 May 2011 the Secretary of State sent a reasons letter in which she explained that, bearing in mind the policy and the seriousness of HE’s previous conviction, it was not considered appropriate at that point to grant him indefinite leave to remain.

“He is not eligible under the policy and hav[ing] considered all of the circumstances and representations this is not considered a case where ILR should be granted exceptionally outside the terms of the policy at this time”

The statutory power to grant limited or indefinite leave to remain to persons subject to immigration control is derived from section 3 of the Immigration Act 1971. It states, as relevant:

“(1). Except as otherwise provided by an order under this Act, where a person is not a British citizen –

(a)

he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under this Act;

(b)

he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period) …”

Two forms of leave are relevant in this case. First, humanitarian protection is granted, inter alia, to those who do not qualify for asylum but whose expulsion would breach article 3 of the European Convention on Human Rights because of the risk of death or ill-treatment they would face. Secondly, there is discretionary leave to remain, the form of leave granted to these three claimants. It is granted outside the Immigration Rules. As with humanitarian protection, those with discretionary leave to remain can work. So long as an application for the continuation of humanitarian protection or discretionary leave is made within time, an existing grant will continue until the application is determined: Immigration Act 1971, s. 3C(2)(a).

Humanitarian protection is governed by the Immigration Rules, paragraph 339C, in terms which reflect those of the so-called Qualification directive of the European Union, (Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted: [2004] OJ L 304). The directive’s recitals underline the broad aims of having a common policy for asylum in the European Union, applying minimum standards throughout the Union and protecting fundamental rights. The cornerstone is the 1951 Geneva Convention and Protocol: recital (3). Recital (25) states the intention to introduce criteria for eligibility for international protection under what the directive calls subsidiary protection, (i.e. humanitarian protection in the United Kingdom). Article 2(e) defines a person eligible for subsidiary protection as a third country national or a stateless person, who does not qualify as a refugee, but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm. Chapters III and IV of the directive cover refugee status, chapters V and VI, subsidiary protection.

Discretionary leave to remain was introduced on 1 April 2003. It and the policy on humanitarian protection replaced the policy on exceptional leave. The policy on discretionary leave to remain is set out in the inaptly named Asylum Policy Instructions. The policy sets out what it describes as the limited circumstances in which it would be appropriate to grant discretionary leave. Near the outset it emphasises that discretionary leave is granted outside the Immigration Rules and that it should not be granted where persons qualify for asylum or humanitarian protection, or where there is another category within the Immigration Rules under which they qualify. The policy provides that discretionary leave applies in various situations. Thus there are those cases where return would breach article 8 ECHR on the basis of family life established in the United Kingdom. Another category is where return would breach article 3 ECHR but where humanitarian protection is not available. Normally those facing a real risk of serious harm on return will qualify for humanitarian protection, but they will not if they fall into an excluded category, explained shortly. Then there are rare cases when return would breach another article of the Convention other than articles 3 and 8.

The policy on humanitarian protection specifies that those qualifying normally receive four years’ leave. The policy on discretionary leave provides that it will normally be appropriate to grant all ECHR cases three years’ discretionary leave. Individuals excluded from humanitarian protection and discretionary leave will usually be granted discretionary leave for periods of 6 months. (This is an Alice in Wonderland feature of the policy: someone excluded from discretionary leave obtains discretionary leave).

“Exclusion from Humanitarian Protection

Individuals excluded from humanitarian protection will usually be granted discretionary leave for 6 months.

…

Exclusion from Discretionary Leave

… A person who is excluded from discretionary leave will be expected to leave the UK. Where neither enforced nor voluntary return is possible without material prejudice to the rights protected under this instruction, discretionary leave will usually be granted for 6 months.”

Those applying for an extension of discretionary leave will normally be subject to an active review to decide if they still qualify. If it is then decided that an individual no longer qualifies for discretionary leave, and that they do not qualify for any other form of leave, their extension request should be refused.

Under the heading “Applications for settlement”, the policy on discretionary leave provides that a person normally becomes eligible for consideration for settlement after completing six continuous years of discretionary leave. However,

“where a person is covered by one of the exclusion categories they will not become eligible for consideration for settlement until they have completed ten continuous years of discretionary leave”.

Any time spent in prison in connection with a criminal conviction will not count towards the six or ten years. The policy then continues:

“An individual may apply for ILR/settlement at the six or ten year stage shortly before Discretionary Leave expires. The application will be considered in the light of circumstances prevailing at that time.”

As with an extension request, the application should be subject to an active review to consider whether or not the person still qualifies for discretionary leave or some other form of leave. Where persons have held discretionary leave for an appropriate period and continue to qualify for discretionary leave, they should be granted indefinite leave to remain. However, where persons subject to the grounds of exclusion have completed ten years of discretionary leave they may be denied settlement where Ministers decide, in the light of all the circumstances of the case, that their presence in the United Kingdom is not conducive to the public good. A further period of discretionary leave should be granted where it is not possible to remove the person. In such a case, as long as the individual remains in the United Kingdom, a fresh decision will be taken at least every three years on whether settlement should continue to be denied.

Falling into one of what the policy on discretionary leave calls the exclusion categories has important ramifications for the grant of discretionary leave. It affects the length of any discretionary leave granted (usually 6 months, not 3 years), the need to complete at least 10 years (not six years) before being eligible to apply for indefinite leave to remain, and the possible refusal of indefinite leave to remain at the end of that period if Ministers decide that a person’s presence in the United Kingdom is not conducive to the public good.

The policy on discretionary leave does not define the exclusion categories but cross-refers to the policy on humanitarian protection:

“The grounds for exclusion from Humanitarian Protection will apply to Discretionary Leave”.

In setting out the exclusion criteria, the policy on humanitarian protection in turn cross-refers to the exclusions from humanitarian protection set out in paragraph 339D of the Immigration Rules. In particular, paragraph 339D (i) provides for an exclusion where:

“(i)

there are serious reasons for considering that he has committed a crime against peace, a war crime, a crime against humanity, or any other serious crime or instigated or otherwise participated in such crimes” (my emphasis).

Paragraph 339D also excludes (ii) those involved in acts contrary to the purposes and principles of the United Nations: (iii) those a danger to the community or to the security of the United Kingdom: and (iv) those fleeing imprisonment in their country of origin for acts which would be a crime if committed here.

In effect what paragraph 339 D does is to introduce into United Kingdom law the exclusions from subsidiary protection in article 17 of the Qualification directive. Article 17(1) provides:

“1.

A third country national or a stateless person is excluded from being eligible for subsidiary protection where there are serious reasons for considering that:

(a)

he or she 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 or she has committed a serious crime;

(c)

he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations;

(d)

he or she constitutes a danger to the community or to the security of the Member State in which he or she is present.”

Neither the Immigration Rules nor the Qualification directive defines “serious crime”. However, the Secretary of State’s policy on humanitarian protection policy contains a definition as follows:

“A serious crime for these purposes is:

•

One for which a custodial sentence of at least twelve months has been imposed in the United Kingdom; or

•

a crime considered serious enough to exclude the person from being a refugee in accordance with Article 1F(b) of the Convention (see the Asylum Instruction on Exclusion); …”

The second bullet point refers to article 1F(b) of the Refugee Convention and the Asylum Instruction on Exclusion. Article 1F(b) excludes from being a refugee those who have committed a “serious non-political crime” committed outside the country of refuge prior to admission to the country as a refugee. (Article 1F(b) is introduced into the Qualification directive as article 12(2)(b).) The Asylum Policy Instruction on Exclusion acknowledges that there is no list of serious crimes in the Refugee Convention or any definition in United Kingdom law. However, it continues:

“The s72 NIA definition of a “particularly serious crime” for the purposes of Article 33(2) – a crime for which a custodial sentence of at least two years has been imposed, or which is listed in the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004[2004 SI 1910] – should be taken as a general guide to what amounts to a serious crime for the purpose of Article 1F(b).”

That definition of particularly serious crime in section 72 of the Nationality, Immigration and Asylum Act 2002 being referred to

“(a)

does not include a reference to a person who is sentenced to a period of imprisonment of at least two years only by virtue of being sentenced to consecutive sentences which amount in aggregate to more than two years: s. 72(ii).”

An unpublished policy document, “The Criminal Casework Directorate Process Instructions for Granting Leave”, was approved on 15 July 2007. It referred to the exclusion from humanitarian protection, and therefore from a standard issue of discretionary leave, to cases where there are serious reasons for considering that a person has committed a serious crime. It then continued at paragraph 1.3.1:

“Nevertheless, it should be noted that crimes attracting a twelve month custodial sentence should not always be considered a serious crime. Instead, caseowners when granting leave should consider all details of the case with the initial presumption that a twelve month sentence is a serious crime. This consideration, if the circumstances merit it, may result in the case owner concluding that in exceptional circumstances the crime is not serious enough to limit the award to 6 months.

A non-exhaustive list of potentially relevant factors includes:

(a)

The nature of the offence (Did it include violence? Was it related to Drugs? If it included theft or fraud what was the scale?)

(b)

Whether it did, or could, endanger life.

(c)

The impact on the victim(s) – including the emotional, physical, psychological and financial aspects.

(d)

The sentencing judge’s remarks (if applicable) on the seriousness of the case.

(e)

The motive behind the crime.”

This part of the unpublished policy was amended on 9 May 2011 and its wording now follows that in the published policy on humanitarian protection.

The rationale for the policy on exclusions from discretionary leave is explained in two witness statements of Matthew Bligh, an assistant director in the UK Border Agency, prepared for the purposes of another claim, Anwar Sied Mortlock v SSHD, CO 976/2010. Mr Bligh says that the primary purpose of the policy is to ensure that foreign nationals who have committed serious offences are not granted leave to remain in the United Kingdom for a period longer than that necessary to give effect to this country’s international obligations. It has a twofold precautionary function: to review behaviour and any renewed criminal activity, and to ensure that the need for international protection has not passed, or that article 8 ECHR is no longer engaged, such that removal can proceed. The public is entitled to reassurance that the right to remain in the United Kingdom is kept under review. The policy is intended to prevent crime and disorder, while maintaining effective immigration control.

As for the aspect of the policy requiring persons to have 10 years of discretionary leave before qualifying for indefinite leave to remain, that is because the Secretary of State considers there to be a compelling public policy interest in preventing such people from becoming settled here. Government policy is that serious criminals are not welcome in this country. The discretionary leave policy enables the Secretary of State to keep such persons under review for ten years, with a view to removal. The ten year qualifying period also reflects the government’s view that such people are not deserving of being considered for settlement on the same timescale as law-abiding migrants, who may apply for indefinite leave to remain after six years. A grant of indefinite leave to remain carries with it significant benefits, including rights to permanent residency, to take the full benefits of the welfare state and to call for members of their family and other dependants to join them here. There is also an eligibility for naturalisation and registration as a British citizen, albeit only if the applicant has no unspent criminal convictions. Since a sentence of more than 30 months’ imprisonment is never spent, that acts as a barrier to citizenship.

In considering KM’s case it is convenient to begin with his challenge to the policy that all offences which attracted a sentence of 12 months or more are serious. It is said that that is incompatible with the Qualification directive. It will be recalled that serious crime is not defined in the Qualification directive, nor in paragraph 339D of the Immigration Rules, which gives expression to the directive in the United Kingdom. However, the policy on humanitarian protection does define it and that definition, using a 12 months’ sentence, is incorporated by reference into the policy on discretionary leave. On KM’s behalf Ms Dubinsky advanced two well considered arguments about the incompatibility of the 12 months sentence criterion with the Qualification directive. First, she submitted, the concept of serious crime in article 17(1)(b) of the Qualification directive must be read as referring to a particularly egregious offence. The other types of crime excluding a person from subsidiary protection in article 17 are, as we have seen, a crime against peace, a war crime or a crime against humanity. In her submission offences carrying sentences of 12 months or more fall below the threshold of seriousness connoted by these other offences.

Secondly, she placed reliance on EN (Serbia) v Secretary of State for the Home Department [2009] EWCA Civ 630; [2010] QB 633. In summary, the background to that case is that refugees who have been convicted of a particularly serious crime, and who are a danger to the community, are excluded from the protection from refoulement under article 33(2) of the Refugee Convention. For these purposes section 72(2) of the Nationality Immigration and Asylum Act 2002 provides that persons are presumed to have been convicted of a particularly serious crime, and to constitute a danger to the community of the United Kingdom, if they are convicted here of an offence, and “sentenced to a period of imprisonment of at least two years”. The Qualification directive incorporates article 33(2) of the Refugee Convention as its article 14(4). To conform with the Qualification directive and, thus the Convention, the Court of Appeal held that it was necessary to read down section 72(2) as creating only a rebuttable presumption that certain offences are particularly serious. In a judgment with which the other members of the court agreed, Stanley Burnton LJ said:

“[68] But what in my judgment is incompatible with the Convention and with the Directive is an irrebuttable presumption that arises from facts that do not necessarily involve the satisfaction of the Article 33(2) requirements but which requires those deciding whether they have been satisfied to determine that they have been satisfied when, untrammelled by the presumption, they would decide that they have not been.

[69] I do not think that every crime that is punished with a sentence of 2 years imprisonment is particularly serious. One only has to appreciate that determinate sentences may be many times longer than 2 years for it to be obvious that a sentence of 2 years' imprisonment is not necessarily indicative of a particularly serious crime.”

A similar approach was taken in Al Sirri v Secretary of State for the Home Department [2009] EWCA Civ 222; [2009] Imm. A.R. 624, where the Court of Appeal found that since the Qualification directive set out the circumstances in which a person would be excluded from Refugee Convention protection, domestic primary legislation which on its face imposed a definition of terrorism which would have broadened that exclusion had to be read down to conform with the directive: [29].

Thus Ms Dubinsky contended that if Parliament cannot create an irrebuttable presumption in primary legislation, still less is an irrebuttable presumption permissible in executive policy. Thus the policy on humanitarian protection is incompatible with the Qualification directive in that it imposes an irrebuttable presumption that offences carrying a sentence of 12 months or more are serious. That was coupled with a submission that a broader principle is at play, that where European Union law confers or adopts rights or a status from other international instruments, domestic law may not adopt irrebuttable presumptions which restrict them. Amongst other authorities she cited Case C-411/10, NS v Greece, where the Advocate-General stated that there could be no irrebuttable presumption that an asylum seeker’s fundamental rights would be observed in the Member State primarily responsible for its application. This was because

“the risk that transfer of asylum seekers to another Member State for the purpose of examining their asylum applications will expose them de facto to treatment which violates fundamental rights and human rights can never be completely ruled out”: [130].

That principle, submitted Ms Dubinsky, must necessarily apply where domestic law seeks to interpret restrictively the availability of a right exclusively conferred by European Union law, here subsidiary protection under article 17 of the Qualification directive.

In my view the best starting point for considering these submissions is the history of the Qualification directive. In an article entitled “The European Union Qualification Directive: The Creation of a Subsidiary Protection Regime” [2005] IJRL 461, Dr Jane McAdam traces the preparatory documents and drafting records for the directive. Overall, Dr McAdam is critical of the narrowing-down of the categories of persons eligible for subsidiary protection. For our purposes, however, Dr McAdam describes how, in the original draft, the serious crime exclusion was the same for both refugee and subsidiary protection and identical to article 1(F) of the Refugee Convention – serious non-political crime – although not requiring the crime to have been committed outside the country of refuge as demanded by article 33(2) of that Convention. (Dr McAdam says that the term “serious non-political crime” has no universally accepted definition. She refers to the UNHCR Handbook, which notes that serious crime must be a capital crime or a very grave punishable act). Dr McAdam then explains how, in its final form, article 17(1)(b) of the Qualification directive required that the applicant commit a serious crime to be excluded. After considering other differences in article 17, compared with refugee protection, Dr McAdam concludes:

“It is therefore clear that subsidiary protection is not necessarily a fallback for unsuccessful refugee claimants. Its exclusion clauses have a far wider reach than those for refugees, which are restricted in accordance with the provisions of the Convention”: at 497.

Thus the concept of serious crime in article 17 of the Qualification directive, dealing with exclusions from subsidiary (humanitarian) protection, is not the same concept as used elsewhere in the directive in relation to refugees. To adopt Dr McAdam’s language, it has far wider reach. That is evident from the language of the directive itself. The use of “serious crime” in article 17(1)(b), by contrast with “particularly serious crime” in article 21, shows that the two provisions have different meanings. Article 21 suggests some special or exceptional order of seriousness, whereas article 17 chooses simply to use the term serious. The different kinds of wrongdoing specified in sub-paragraphs (a) and (c) of article 17(1) are likely by their nature to be very serious, because individual wrongdoing does not engage international law unless it is of some gravity. In my judgment, however, there is no reason to read this as implying that significantly less serious conduct may not be caught by the other sub-paragraphs, including the one at issue here, article 17(1)(b). Had that been the intention, the directive would have used some phrase to make that clear, as in article 21.

Thus the question is simply whether a 12 month sentence necessarily satisfies the requirement in the Qualification directive. The directive leaves it to Member States to decide how to determine seriousness. Use of the 12 month sentence as the test seems to me to be appropriate in the light of how the directive approaches subsidiary protection. Ms Dubinsky submitted that it was not, not only because 12 months is at too low a level, but because sentencing can change over time. Thus in KM’s case the sentencing judge had referred to R v Kolawole [2004] EWCA Crim 3047; [2005] 2 Cr App R(S) 14 in setting the tariff for passport offences, whereas later cases such as R v Ovieriakhi [2009] EWCA Crim 452; [2009] 2 Cr App R(S) 91 demonstrate that lesser sentences are appropriate where the passport is not used to gain entry to the country but to secure employment.

That submission about changes in sentencing is certainly true, although the general trend in sentencing seems to be upwards, not the other way. It is also true that by comparison with many of the sentences being appealed to the Court of Appeal, Criminal Division, a sentence of 12 months’ imprisonment is relatively low. However, the bulk of offending before the courts does not attract a custodial sentence, still less a custodial sentence of 12 months or more. On reflection, it seems to me that the criminal courts do not pass sentences of 12 months or more for offences which are not serious. (In Ovieriakhi the court reiterated that passport offences to obtain employment usually attract a custodial sentence because such conduct, all too easy, if copied, is inimical to proper immigration control: [12], [16].) That conclusion is underlined by the reality that that length of sentence will often be imposed after a higher starting point has been identified, but the sentence actually passed is less, having regard to personal mitigation and applying a discount of up to one third for a guilty plea. The starting point the judge identified in KM’s case for the passport offence was 18 months.

In my view EN (Serbia), and Al Sirri are of limited assistance. The subject matter, although related, was different. As already explained, EN (Serbia) concerned the exception from the rule against refoulement in the Refugee Convention of a refugee who, having been convicted of a particularly serious crime, constitutes a danger to the community. United Kingdom law adopted the 2 year sentence as the test. By contrast article 17(1) is not denying a major benefit of refugee status but of subsidiary (humanitarian) protection. In practice the foreign national prisoner excluded from humanitarian protection will still be able to resist removal under article 3 ECHR. Discretionary leave will be granted. Moreover, in the paragraphs quoted from the judgment of Stanley Burnton LJ, there is the suggestion that if the facts necessarily satisfied the criterion, there would have been no objection to basing an irrebuttable presumption on them: see [68]. In that case it was held that a 2 year sentence did not necessarily satisfy the particularly serious criterion, and therefore the irrebuttable presumption was unlawful. As I have said, in my view a 12 month sentence does satisfy the seriousness criterion in article 17(1)(b) of the directive. No objection to an irrebuttable presumption arises. Domestic law is not unlawfully imposing a criterion which falls below the minimum standards of the Qualification directive by broadening an exclusion from protection.

Ms Dubinsky’s further point on European law has no application. The principle as stated by the Advocate General in Case-411/10, N v Greece, is that where a person’s rights turn on a genuine issue of fact, persons must have the opportunity of proving their case on the facts, and cannot be barred by an irrebuttable presumption of fact. In the present case, the issue of whether a person has committed a serious crime is resolved by proof of their receiving a sentence of at least 12 months’ imprisonment. As I have said, in my judgment sentences of 12 months or more are not being imposed for crimes which are not serious.

If the introduction of a 12 month sentence to define serious crime is not unlawful as a matter of European Union law, there is the separate question of whether it breaches any principle of domestic law. Again Ms Dubinsky’s submissions were skilful and attractively put. With reference to a wide range of authorities she submitted first, that it is trite law that, while the executive may adopt strict criteria for the exercise of discretionary power, it must not fetter its discretion: see Wade and Forsyth, Administrative Law, 10^th ed, 2009, 270-2. Secondly, she submitted, neither the policy on humanitarian protection, nor that on discretionary leave, permits the Secretary of State to exercise a discretion on a fact-sensitive basis to decide which offences should be treated as serious so as to merit exclusion. Rather, the definition of serious crime is expressed in rigid terms, as one for which a custodial sentence of at least 12 months has been imposed. That does not allow the Secretary of State to consider, for example, mitigating circumstances, such as those advanced by KM to explain his unlawful working and consequent use of the false passport.

In my view there is a simple answer to this ground of appeal. At its highest the no-fettering principle means that a person must know what the relevant policy of a public authority entails and must be able to make submissions about its application in their individual case. The public authority must then consider that case on its merits: see the recent statement in R(Lumba) v Secretary of Stare for the Home Department [2011] UKSC 12; [2011] 2 WLR 671, [34]-[35]. As we have seen the policies on humanitarian protection and discretionary leave are published and they contain the 12 months’ threshold. As I have concluded, that length of sentence makes an offence serious. That sentence is fixed by the court, which will have considered the seriousness of the offending, and in doing so the aggravating and mitigating circumstances: see Sentencing Guidelines Council, Overarching Principles: Seriousness Guideline, 2004. It seems entirely rational for the Secretary of State to adopt the court’s sentence as to whether the threshold of seriousness has been reached and for her not to have to reinvestigate the background features of the offending to decide whether it was, in fact, serious. The court has already done that. To my mind a 12 months’ sentence threshold is a reliable and rational measure of seriousness, which has been set by a court, and is not an unlawful fetter on the Secretary of State’s discretion.

There is the unpublished policy of the Secretary of State, operating between 15 July 2007 and 9 May 2011. It will be recalled that the unpublished policy informed caseworkers that they should begin with the initial presumption that a 12 month custodial sentence was a serious crime, but then set out a list of factors which they could consider in deciding whether a sentence of that nature was in fact a serious crime. If the Secretary of State had been driven to invoke the unpublished policy to avoid Ms Dubinsky’s non-fettering attack, she would have faced the objection that, since it was unpublished, a person affected by it would not have been able to make informed and meaningful representations before a decision was made. In those circumstances the Secretary of State would not have been able to rely upon the unpublished policy. However, I have held that the non-fettering rule has no application in relation to the 12 months’ threshold.

Next on behalf of KM Ms Dubinsky contended that the exclusion of those with a 12 month sentence from the humanitarian protection policy – an exclusion which carries over into the discretionary leave policy – is a rule not found in the Immigration Rules. That is impermissible, she submitted, since it is contrary to the principle in Pankina and Others v Secretary of State for the Home Department [2010] EWCA Civ 719, [2010] 3 WLR 1526. There the Court of Appeal held that the executive could not, through its policies, apply more restrictive criteria affecting individuals’ status and entitlements than those contained in the Immigration Rules, which are tendered for Parliamentary scrutiny. The mischief which Pankina targets is the setting of higher hurdles to status or entitlements in executive policy than are set by the rules. Whether termed a rule or guidance, an inflexible additional hurdle to those already approved by Parliament is equally antithetical to principle. The automatic trigger for exclusion represented by the 12 month custodial sentence is, Ms Dubinsky contended, an extraneous, rigid and substantive criterion, subject to change at the will of the executive, and nowhere referred to in the Immigration Rules. The Immigration Rules provide their own definitions such as definitions of long residence and dependant. The definition of serious crime should have formed part of the Immigration Rules and been placed before Parliament.

An understanding of the Pankina principle begins with section 3(2) of the Immigration Act 1971, which provides that the Secretary of State shall lay before Parliament statements of the rules, or of any changes in the rules, as to the practice to be followed in the administration of the Act for regulating leave to enter the country. The subsection continues that if either House of Parliament disapproves, the Secretary of State must make changes which appear to be required and then to lay those before Parliament. In Pankina the Secretary of State had laid Immigration Rules before Parliament in 2008, containing maintenance provisions for applicants for leave to remain post-study, that they had to have £800 available. Prior policy guidance as to the maintenance required was more demanding, in that the £800 had to be in a bank or building society account for a continuous period of 3 months.

Sedley LJ (with whom Rimer and Sullivan LJJ agreed) accepted that the policy guidance introduced a further substantive criterion: [6]. Question 1 before the court was as follows:

“(1)

Can the immigration rules lawfully incorporate provisions set out in another document which (a) has not itself been laid before Parliament; (b) is not itself a rule of law but a departmental policy; and (c) is able to be altered after the rule has been laid before Parliament?”: [23]

Sedley LJ held that the objection was not to rules which rely on outside sources for evidence of compliance, but to rules which purport to supplement themselves by further rules derived from an extraneous source. He then gave this answer to the questions posed:

“[33] … The statutory recognition of rules which are to have the character and, on appeal, the force of law requires such rules to be certain. That does not shut out extraneous forms of evidence of compliance, so long as these are themselves specified, but it does in my judgment shut out criteria affecting individuals’ status and entitlements which – coming back now to the questions in para 23 above – (a) have not themselves been tendered for parliamentary scrutiny, and (c) even if ascertainable at that point of time, may be changed without fresh scrutiny. As to (b), while the fact that the criterion absorbed into the rules comes from a policy document makes nonsense of the notion of policy, this is not critical: the vice would be the same if the reference in the rules were to a categorical criterion in some external but impermanent or undetermined source.”

The court therefore held that the policy guidance was of no effect. Pankina was applied by Foskett J in R(English UK) v Secretary of State for the Home Department [2010] EWHC 1726 (Admin), [59], [64].

The principle in Pankina is that policies extraneous to the Immigration rules cannot apply substantive criteria affecting an individual’s entitlements which are additional to, and more demanding than, those contained in the Immigration Rules. The relevant criterion in the present case is whether the person has committed a serious crime. As regards humanitarian protection that is contained in the Immigration Rules at paragraph 339D(i). In Pankina Sedley LJ recognised that the Immigration Rules, which have to be laid before Parliament, can derive part of their content from an outside source. Here the outside source is the provision in the humanitarian protection policy, that a serious crime is defined by the passing of a sentence of at least 12 months’ imprisonment. In my judgment that does not impose either an additional, substantive criterion or a further hurdle for an applicant to clear. Rather it fixes how a consideration in the Immigration Rules, serious crime, is to be determined. Since it is doing no more than this it does not, in my judgment, fall foul of the Pankina principle.

Ms Dubinsky then turned her fire on that aspect of the policy which states that those who are excluded from humanitarian protection, but granted discretionary leave

“do not become eligible for settlement until they have completed ten continuous years of discretionary leave”.

Ms Dubinsky contended that that constitutes an unlawful fettering of discretion. For the Secretary of State, Mr Bourne resisted that conclusion but submitted that, if he were wrong, she had considered her discretion to grant indefinite leave to remain in KM’s case so the matter is academic.

In my view the no-fettering principle does bite in this instance. The exclusion policy reads as barring the Secretary of State from considering applications for indefinite leave to remain from those who are in the exclusion categories before the 10 years have elapsed. That applications will be considered in the light of circumstances at the time confers a flexibility in considering applications for indefinite leave to remain, but that is not addressed to the 10 year wait. It was not until the letter of 5 August this year that the Secretary of State finally engaged with the case being advanced on KM’s behalf. The earlier letters of 18 November 2010, and 4 February 2011 did not address the arguments but simply applied the policy in a rigid manner. If she had considered KM’s case the Secretary of State might well have rejected it: KM had only received his first grant of discretionary leave in mid 2008. (There was no delay in that regard given that it was on the 21 January 2008 that the tribunal found in his favour, and in February 2008 that his partner and her children were granted indefinite leave to remain.) She might have concluded that it was far too early to consider indefinite leave to remain, despite the tribunal finding and the status of his partner and her daughters. By late 2010 she might have thought that KM’s solicitors were more realistically requesting a grant of three years’ discretionary leave as an alternative. However, I express no conclusions in this regard. The crucial point is that the Secretary of State did not consider KM’s or any of the contrary arguments. She simply applied the policy. In doing so her decisions were flawed because she failed to exercise her discretion.

There is no dispute that AO and HE have been convicted of serious crimes, but the issues in their cases concern the legality of the Secretary of State’s decisions to refuse to grant them indefinite leave to remain as a matter of discretion. For AO and HE Mr Khubber submitted, first, that the decisions to grant initially 6 months and, then 3 years discretionary leave, were flawed by being irrational and disproportionate. In his submission there was no rational or proportionate connection between the aim sought to be pursued and the measure deployed to pursue that aim. Invoked in this respect was the case law that where fundamental or human rights are in issue, judicial review is not limited to the traditional irrationality consideration. Rather the court will adopt a more rigorous approach to the justification for the decision and will require that the principle of proportionality be respected: e.g. R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, Lord Steyn, [24]-[28]; Huang and Kashmiri v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167, [19]-[20].

By reference to the rationale for the policy on discretionary leave, Mr Khubber contended that the intention behind the grant of short periods of leave to remain for foreign nationals like AO and HE is to enable regular review of their cases; the purpose of that regular review is to consider whether their situation has changed such that they can be deported; and if they cannot it is necessary to grant them some form of leave to remain. It is clear that neither AO nor HE can be removed. It has been accepted in the internal departmental documents that in AO’s case the prospect of removal is remote. In HE’s case there are very low prospects of removal and there is no intention to pursue them. The basis upon which AO and HE have won their claims on appeal mean that their cases have actually strengthened, in particular the development of their private and family life pursuant to article 8 ECHR. Both AO and HE have been subject to erratic review for a significant period of time.

In Mr Khubber’s submission there is no legitimate aim being pursued, the need for regular review being irrelevant when removal is remote and there has been no adverse immigration or criminal conduct. Alternatively, if there is a legitimate aim, there is no rational or proportionate connection between the aim and the measure sought to achieve that aim. As such the continuous refusal to grant indefinite leave to remain is unlawful. If AO and HE were granted it, and were subsequently convicted of serious criminal offences, or otherwise found to have acted contrary to the requirements of immigration control in a manner adverse to the public good, under the legislation the Secretary of State would still have a significant power to deprive them of the benefits of indefinite leave to remain and remove them.

In my view this ground is based, in part, on a faulty premise. The rationale of the discretionary leave policy is not simply to ensure regular reviews so that foreign national prisoners 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. Mr Bourne for the Secretary of State conceded that in the case of both AO and HE 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. Each was based on a policy whose validity was not in question before me.

My conclusion in this regard avoids the need to reach any conclusion on the application of a decision of the Grand Chamber of the European Court of Justice in Cases – 57/09 and C-101/09, Bundesrepublik Deutschland v B and D. It concerned the serious crime exclusion in the Refugee Convention, as introduced into article 12(2) of the Qualification directive. In the course of its judgment the court said:

“Since the competent authority has already, in its assessment of the seriousness of the acts committed by the person concerned and of that person's individual responsibility, taken into account all the circumstances surrounding those acts and the situation of that person, it cannot - as the German, French, Netherlands and United Kingdom Governments have submitted - be required, if it reaches the conclusion that Article 12(2) applies, to undertake an assessment of proportionality, implying as that does a fresh assessment of the level of seriousness of the acts committed.”

For the Secretary of State, Mr Bourne contended that, by analogy, the exclusion of a person from the discretionary leave policy was not conditional on any assessment of proportionality in the particular case. That authority was handed to me well into the course of submissions and only brief remarks made as to its relevance. In the circumstances it is better to leave the matter for another day.

As for Mr Khubber’s submission, that the prospect of removal is becoming increasingly remote, my view is that the lack of intention to pursue removal in HE’s case, and the grant in 2010 of discretionary leave for 3 years to both AO and HE, does not mean that there could never be an intention to remove. It seems to me that the Secretary of State is correct in her submission that, rather than being inconsistent with the policy, the history of these cases demonstrates the policy in action. Those who commit serious crimes spend an extended period in which removal remains possible and they are considered for indefinite leave to remain if, and only if, that period ends and removal has ceased to be a realistic possibility. There seems to me nothing wrong in saying that, although removal is unlikely, or highly unlikely, those who commit serious crimes must wait longer for indefinite leave to remain than others. In my view there is nothing in the contention that a lack of rationality is demonstrated by the fact that, under the legislation, deportation action is still possible after a grant of indefinite leave to remain.

Mr Khubber’s cogent submission in this regard was that the decisions to grant six months’ discretionary leave, and then three years’ discretionary leave, were unlawful by failing adequately to take into account relevant factors in relation to AO’s and HE’s personal circumstances. Overall the Secretary of State gave impermissible weight to two static factors, the seriousness of their crimes and the need to wait ten years. That was coupled with the long periods of inactivity when nothing was done on these claimants’ applications. There was also, he submitted, a failure to respect independent judicial decisions. In AO’s case that was the success on his article 3 claim before the immigration tribunal on two different occasions, in 2003 and 2005. In HE’s case there was the favourable decision of the immigration adjudicator on the article 8 claim in 2001, while he was still in prison. Finally, it was said, the Secretary of State failed to consider all the positive features associated with these two claimants. With both claimants there are the long periods of residence in the United Kingdom, the lack of any adverse immigration history or criminal conduct after initial conviction, and the positive post-prison careers. The Secretary of State failed properly to engage with these considerations, it is said, especially as they developed over time. In as much as the disclosed material demonstrates some focus on them, it was shot through with inconsistencies and, at the end of the day, the static factors triumphed at their expense.

There is no doubt that the decision-making in the case of these claimants was not ideal. Quite apart from anything else there was delay in responding to letters, although I accept the Secretary of State’s submission that we lack objective evidence about its actual impact. What can be said, on the other side of the coin, is that as, the claimants themselves conceded, their discretionary leave continued and their rights to remain strengthened with the delay. As far as consideration of the claimants’ individual circumstances is concerned, both AO and HE exhibited positive good conduct in prison, and both have employment of benefit to the community, AO as a solicitor, HE as a full-time support worker. However, it seems to me that, given the character of the policy, to place road blocks in the way of settlement for foreign national prisoners, it is no surprise at all that the Secretary of State continued to focus on what was the extremely serious offending of these two claimants, class A drug importation in AO’s case, murder in HE’s. That being the case there was no failure to take relevant considerations into account. The internal discussion of these claimants’ cases, and the Secretary of State’s letters, demonstrate in my view that, given the policy, there was an adequate canvassing of their individual circumstances.

Next Mr Khubber submitted that the apparently mandatory requirement in the policy for ten years of discretionary leave before consideration of any grant of indefinite leave to remain for excluded persons was unlawful as being impermissibly rigid, arbitrary and a fettering of discretion. That is a submission I have already accepted in KM’s case. The issue is the consequence of this finding for AO and HE. Consistently with my approach in KM’s case the early letters regarding AO and HE are flawed.

However, Mr Khubber went further and invoked R (on the application of N) v Secretary of State for the Home Department [2009] EWHC 1581 (Admin). There there was a seven year delay in considering an asylum application from the claimant. He had hijacked an aeroplane and was sentenced to two and a half years’ imprisonment. (He was unlucky because, for reasons which need not concern us, the other hijackers were eventually acquitted). Thus he fell within article 1F(b) of the Refugee Convention. Eventually he was given discretionary leave, after the adjudicator decided that he was entitled to humanitarian protection. The Secretary of State said that refusal of his application for indefinite leave to remain was justified because he had been on discretionary leave for under seven years, well short of the 10 years in the policy. Collins J held that, given what he described as the appalling delay in considering the claimant’s case, it was entirely unreasonable, irrational and an abuse of power for the Secretary of State not to consider whether the ten year period had run in his favour: [25]. There would have to be strong justification for a refusal to regard someone like the claimant, who has been in the United Kingdom for well over twelve years, not to have to wait any longer: [26].

As Mr Khubber conceded, neither AO nor HE had accumulated 10 years’ discretionary leave. However, in line with N he contended that the many years HE had spent in the country before his offending meant that he was now eligible for indefinite leave to remain. The same applied to AO, although the relevant period to be considered in his case was the gap between his release from prison and the first grant of his discretionary leave. But to my mind, the period HE spent here before 1990 was properly treated as irrelevant: his slate was wiped clean with the murder and the clock only started in July 2003, when he was released from prison. HE’s first grant of discretionary leave was only a few months later, so there was no delay. As for AO, his offending occurred when he entered the country with the drugs. The period after prison could properly be discounted since it was only in 2003 that a tribunal ruled in his favour, not long after the relevant human rights claim was made. He was awarded discretionary leave shortly after. Thus the delay in N is simply not a feature of these cases. As I have said earlier, in my judgment the Secretary of State considered the relevant features of these claimants’ cases.

The submission here is that the uncertainty and disruption to AO’s and HE’s private and family lives, caused by the granting of six months’ discretionary leave, now three years’ discretionary leave, but not indefinite leave to remain, constitute a disproportionate interference with their rights under Article 8 ECHR. There are the claimants’ long residence, their significant private and family life while here, their commendable behaviour post offending, and the fact that in reality they will not be removed. The grant of indefinite leave to remain will significantly enhance the development of the claimants’ and their families’ private and family lives in this country.

In my view article 8 adds little, if anything, to the arguments advanced by Mr Khubber under the other heads. The fact is that both AO and HE have developed their private and family lives irrespective of the impact of the policy and its implementation in their cases. Those lives may not have proceeded as smoothly as would have been the case if longer periods of discretionary leave had been granted earlier, and if they now had indefinite leave to remain, with all its privileges. Even if article 8 is engaged in cases like this where uncertainty is generated in private and family lives, there is no breach unless the interference is disproportionate. That cannot be said, in my judgment, in these cases.

Then it is said that the policy is flawed in that it fails to explain in reasonable detail how the Secretary of State’s discretion will be applied. By failing to do so the exercise of the discretion is imbued with a risk of arbitrariness which has resulted in the decisions under challenge. That is contrary to the rule of law: see Lord Bingham, “The Rule of Law” [2007] CLJ 67, 72. The policy should spell out how the range of factors such as an applicant’s age, length of residence, conduct, family ties, likelihood of removal and so on will be factored into decision making. The article 3 and article 8 protection to which these claimants are entitled demonstrates the close nexus between their position and the operation of paragraph 339D of the Immigration Rules. Thus the ten year wait for indefinite leave to remain is effectively an eligibility rule, which under the Pankina principle should have been laid before Parliament.

In my view these points go nowhere. The policy does not lay down the type of open-textured discretion to which Lord Bingham condemned in his well-known lecture on the rule of law. The policy establishes a strong presumption that the foreign national prisoner will be granted six months’ discretionary leave. There will be a ten years’ wait for indefinite leave to remain. It is a policy promoting a uniformity of approach as decision-makers exercise a residual discretion in the case of those who do not meet the requirements of the Immigration Rules. It does not offend against anything in Pankina. It is a feature of the policy that individuals build up a period of discretionary leave by repeated grants at regular intervals. In the case of individuals excluded from protection because they have committed serious crimes, this provides an opportunity for the Secretary of State to keep their continued presence in the country under review. These provisions are clear. Apart from the rigidity in the 10 year wait for indefinite leave to remain there is no legal flaw.

My conclusion is that permission should be granted when that has not been done. The claims succeed, but only because the discretionary leave policy breaches the no-fettering principle by suggesting that a person must always have at least 10 years’ discretionary leave to be granted indefinite leave to remain. In KM’s case the two decision letters of 18 November 2010 and 4 February 2011 were flawed; in AO’s case, those of 21 August and 7 December 2009; and in HE’s case, those of 21 September and 17 December 2009. However, that finding has no practical implications since the Secretary of State has now addressed the claimants’ cases in her recent 2011 letters.