MS, R (on the application of) v The Secretary of State for the Home Department

Both members of the panel have contributed to this judgment.

Both of these cases raise the question of the legality of the adoption by the respondent of a policy known as the “Restrictive Leave to Remain” (“RLR”) policy, first introduced on 2^nd September 2011, which made provision for the duration for which leave is granted to persons who are excluded from protection under the Refugee Convention but who cannot be removed due to Article 3 of the ECHR. The RLR policy provided (in brief) that such persons will usually only be granted RLR for a maximum of six months at a time, with some or all of four types of conditions, namely, a condition as to place of residence and the number of nights that the excluded person can be absent from the place of residence; a condition restricting employment or occupation; a condition prohibiting studies; and a condition requiring the individual to report to an immigration officer or the Secretary of State at regular intervals. The RLR policy has been updated twice since, i.e. with effect from 28^th May 2012 and 23^rd January 2015. Within the RLR policy, it was stated in terms that active reviews would be undertaken when consideration is given to an application for extension of leave to ascertain whether the individual can be removed, and if not, conditions normally imposed were to maintain contact in order to facilitate removal when removal is possible, ensure that the individual does not gain access to positions of influence or trust and signal that the person should not become established in the United Kingdom.

Prior to the introduction of the RLR policy on 2^nd September 2011, persons who were excluded from protection under the Refugee Convention but who could not be removed due to Article 3 of the ECHR were granted leave as follows:

Conditions were not imposed when ELR was granted to excluded persons who could not be removed.

The DLR policy has evolved over time. The current version came into force on 24^th June 2014. The version that applied before the current version was in place at least from November 2012. This is the version that was in place when the decisions that are the subject of these claims were made (2^nd May 2014 in the case of MS and 21^st August 2013 in the case of MBT). None of the versions of the DLR policy provided for conditions to be imposed on the leave granted to excluded persons who cannot be removed.

Having set out this brief overview of the RLR policy and the DLR policy (dealt with in greater detail below), we return to the questions that are raised in these claims. Besides the legality of the RLR policy, the claims also raise the question, assuming that the RLR policy is lawful, as to whether or not in their individual cases the policy has been lawfully applied to them. The structure of this determination is firstly that we shall set out the facts in each of the individual cases, secondly, the respondent’s evidence and the policy material is set out, thirdly, we shall identify the issues which are raised in each case, fourthly, we shall deal with the lawfulness of the RLR policy and finally we turn to the lawfulness of the application of the RLR policy in each of the individual cases.

Because of the short-lived nature of decisions made under the RLR policy and the length of time taken in the litigation, there have been multiple decisions in respect of each applicant. Although the challenge in each case relates to an earlier decision, we have taken into account the reasoning in the most recent decision in assessing the lawfulness of the application of the RLR policy, given the iterative nature of the successive decisions and the fact that the thrust of the litigation was directed at the lawfulness of the RLR policy.

We are indebted to counsel on all sides of the case for the conspicuous hard work and intellectual rigour that they have applied to their written and oral submissions in this case, without which our task would have been infinitely more difficult.

MS is a national of India who was born on 15^th October 1972. He arrived in the United Kingdom in April 1995 and claimed asylum. That application was refused on 11^th August 1999 and his appeal was certified on national security grounds. MS appealed to the Special Immigration Appeals Commission (‘SIAC’) and his appeal was allowed on Human Rights grounds on 31^st July 2000. SIAC determined that his removal to India would involve a breach of Article 3 of the ECHR as a result of his likely persecution by the authorities in India. It was also determined that he was excluded under Article 1F of the Refugee Convention for his involvement in terrorist activity in support of Sikh separatism.

In the proceedings before SIAC MS was identified as being associated with the Dam Dami Taksal faction of the International Sikh Youth Federation which was a violent Sikh extremist organisation in the United Kingdom supporting the activities of the Khalistan Commando Force who were a paramilitary group operating out of Pakistan. The Khalistan Commando Force was an extremist group committed to the establishment of an independent Sikh state in Khalistan in India by violent means. MS was in particular accused of being engaged in a conspiracy with Sikh extremists to arrange delivery of shipments of terrorist equipment from Pakistan to India. The Punjab police arrested individuals involved in this terrorist activity and it was contended that the arrest of MS in November 1998 and his detention had averted arrangements for the terrorist attacks to be completed. At paragraph 24 of the determination from SIAC it was accepted that these contentions of the Secretary of State had been ‘proved to a high degree of probability’ and that MS had endangered national security and was a continuing danger to national security. Furthermore, it was concluded that the Secretary of State had shown it would be conducive to the public good in the interests of national security for him to be deported. SIAC went on to find that MS had been tortured and mistreated whilst in custody in India. SIAC concluded that there was a real risk that if returned to India MS would be subjected to torture and furthermore than the general assurances of the Indian government that MS would enjoy the same legal protection and be subjected to the same due process of law as any Indian citizen were not sufficient to ensure that the risk of torture was reduced below the threshold at which there would be a breach by the United Kingdom of Article 3 if MS were to be returned. SIAC went on to conclude that MS was excluded, as a result of the terrorist acts which they had found, from the Refugee Convention by Article 1F(c).

Following his appeal being allowed, he was granted ELR on 30^th November 2000 pursuant to the policy then applicable. Following the introduction of the DLR policy on 1^st April 2003, MS was granted DLR on a rolling six month basis most recently on 9^th December 2004 for a period of six months until 8^th June 2005. MS applied in time for the renewal of that leave on each occasion it expired and the most recent grant was no exception. He applied for further leave to remain on 7^th June 2005 requesting that he be granted indefinite leave to remain (“ILR”), requests that were repeated by letters or applications dated 3^rd November 2010 and 28^th April 2011, on the basis of the respondent's policy on DLR which was operational at that time.

Correspondence was sent regularly by MS’s solicitors chasing the respondent for a decision in his case. Holding letters were sent by the respondent in reply to this correspondence. In short, reliance was placed upon the fact that MS had been in the United Kingdom for 10 years and was entitled therefore to ILR under the terms of the DLR policy. Neither of these applications was determined by the respondent and on 31^st March 2014 these proceedings were commenced based initially on the failure of the respondent to take any decision on MS’s application of 7^th June 2005.

In response to these proceedings the respondent’s acknowledgement of service indicated an agreement to take a decision by 2^nd May 2014. By a letter dated 2^nd May 2014 with an accompanying notice under the Immigration Act 1971 (the “1971 Act”) Ms was granted RLR pursuant to the RLR policy which had been introduced on 2^nd September 2011. The pertinent parts of the decision letter provided as follows:

The attached notice contained the record that the grant of RLR was subject to conditions as follows:

The issuing of this decision led to an amendment of the proceedings so as to challenge the respondent’s decision of the 2^nd May 2014.

On 16^th January 2015 (responding to an application on 30^th October 2014 from MS for further leave to remain) a further period of six months RLR was granted. The same conditions were imposed, incorporating reasons for them as follows:

Similar reasons as had been previously provided were reiterated in relation to the consideration of MS’s case under Article 8 both within and outwith the Statement of Changes in the Immigration Rules HC 395 (as amended) (the “Immigration Rules”).

In witness statements dated 9^th March 2015, MS and his wife explain the difficulties associated with the conditions imposed upon MS’s leave. The round trip from MS’s home to the reporting centre is 28 miles and the process of reporting was lengthy as the staff at the reporting centre when he attended on 2^nd June 2014 did not initially know why he was there. At the time of the original grant of RLR, MS was a self employed mini cab driver. Shortly after the receipt of the decision on 8^th May 2014, MS’s solicitor contacted the Home Office to request permission for his self employment to continue and consent was granted three weeks later on 29^th May 2014, causing anxiety during the hiatus between the application and the decision. In relation to studying, on 29^th October 2014 MS’s solicitor wrote to the Home Office seeking consent for him to take up a course of study as a domestic gas engineer. No response was received to that application and MS’s solicitor chased the matter on 21^st November 2014. A letter from the respondent was received on 26^th November 2014 from the respondent asking for confirmation that MS had been accepted onto the course of study and on 12^th December 2014 MS’s solicitor wrote again clarifying the course provider and querying why such information was necessary. At the time of MS’s witness statement, no substantive response had been received to that correspondence and he had been unable to start the course. He had borrowed money to pay for the course and was worried about losing his place and therefore that money.

In the witness statement, he expresses his anxiety about the possibility of prosecution for breach of any of the conditions. He also expresses his concern about the impact of the insecurity of his status upon his wife and children (who it will be noted are British Citizens) and the constraint placed upon his ability to travel abroad in the light of his limited leave. These concerns are reinforced in a statement from MS’s wife. In statements from his siblings, concern is expressed about the imposition of conditions and the limited nature of MS’s leave to remain in the United Kingdom, bearing in mind his strong family and social ties to this country. The evidence is supported by correspondence from the Gurdwara in which MS takes an active part.

The evidence in the case of MS also includes material in respect of others who are subject to RLR. In particular, in a statement from Mr Daniel Furner, evidence is provided in relation to a person who has been anonymised in his own litigation as ‘J1’. In J1’s case, the respondent has applied the RLR policy and granted RLR with conditions as being ‘necessary in the interests of national security’. J1 is in a similar category of person to MS in that he is excluded from the Refugee Convention but cannot be returned as to do so would give rise to a breach of Article 3 of the ECHR. In response to a Freedom of Information (“FOI”) request of 28^th November 2014, the Office for Security and Counter-Terrorism confirmed on 11^th March 2015 that there were at that time 56 people on RLR. All of those people had reporting, prohibition of study without written consent and residence conditions imposed upon them and all bar two had employment conditions imposed. All 56 had been granted RLR for a duration of six months at a time and none had been granted RLR for a period more or less than six months.

There is in addition in MS’s case a witness statement from Ms Sonia Routledge, his solicitor, who indicates that prior to the introduction of the RLR policy where persons were granted time limited right to remain on Human Rights grounds, their leave would not have been subject to any conditions. She also sets out matters in relation to the submissions made on behalf of MS to which we shall turn in due course in relation to both the purpose of the imposition of the conditions and the availability of measures under the Terrorism Prevention and Investigation Measures Act 2011 (“TPIMA 2011”) in respect of individuals suspected of involvement with terrorism.

MBT is a national of Tunisia who was born on 20^th December 1966. On 19^th January 1998, he was convicted along with a number of other Tunisian nationals of terrorism related offences in France. These offences included possession and transportation of unauthorised weapons along with unlawful entry to France, forgery of an official document and association with other malefactors. He was sentenced in August 1998 to five years’ imprisonment but on the basis that he had already served a substantial period of time on remand he was released in August 1998. On 13^th May 1999 he arrived in the United Kingdom and claimed asylum straight away. On 22^nd July 2004 the respondent refused his application for asylum on the grounds of his exclusion from the Refugee Convention under Articles 1F(b) and (c) but granted MBT six months DLR. Further DLR was granted to MBT on 4^th March 2005 and 17^th February 2009.

On 30^th July 2009, MBT applied for further leave but the respondent lost his application. After a number of letters from MBT’s solicitor chasing an outcome to this application which were unanswered, the respondent requested on 25^th March 2011 a further copy of the 30^th July 2009 application which was duly provided. No decision was reached on this application by the time that MBT’s solicitors wrote on 6^th November 2012 applying on his behalf for the grant of ILR. That application was supported by information demonstrating that, since MBT had arrived in the United Kingdom, he had married and had four children. His wife and three sons had been granted ILR by the respondent and his daughter and eldest son were registered as British Citizens. He had met and married his wife in the United Kingdom and all of the children had been born and educated in the United Kingdom. The application was supported by an expert’s report from Mrs Renee Cohen, a Psychotherapist, who concluded that MBT had symptoms which ‘strongly suggest that he is suffering from Post Traumatic Stress Disorder’. Mrs Cohen noted that he was depressed and had difficulty in sleeping and was easily angered.

No response was received to this application and on the 14^th January 2013 MBT’s solicitor sent a letter before claim challenging the delays which had occurred in assessing his applications. The judicial review proceedings which were issued following that letter were compromised by a consent order of 10^th July 2013 within which the respondent agreed to provide a decision within six weeks on MBT’s pending application. On 21^st August 2013 the respondent gave a decision on the application granting MBT six months RLR subject to conditions. The letter accompanying the Notice of 21^st August 2013 issued under the 1971 Act noted the RLR policy which had come into effect on 2^nd September 2011 and observed that conditions were being imposed under s.3(1)(c) of the 1971 Act. The conditions noted on the Immigration Act Notice provided as follows:

Following a request on 2^nd September 2013 from MBT’s solicitors that the conditions should be relaxed, on 1^st October 2013 the respondent confirmed that there would be no relaxation of the restrictions which had been imposed. On 10^th October 2013, MBT’s solicitors sent a pre-action protocol letter and on 25^th October 2013 the respondent refuted the claim. In particular, it was contended that MBT could not have had any expectations of being granted ILR and the letter observed as follows:

Judicial review proceedings were commenced on 20^th November 2013. On 19^th February 2014, MBT applied for further leave to remain and in response to that application he was granted RLR on 20^th March 2015. Having noted his exclusion from the Refugee Convention and the existence of the RLR policy the respondent’s letter confirmed he was being granted six months RLR subject to conditions. Further reasoning was provided in relation to the conditions as follows:

This decision in relation to MBT went on to consider other aspects of his case. Firstly, the decision appraised MBT’s claim to ILR on the basis of his submissions under Article 3. The decision provided as follows:

The letter went on to note that the transitional arrangements in the DLR policy excluded those who were the subject of the RLR policy operational from 2^nd September 2011. The respondent therefore concluded that MBT did not qualify for ILR in accordance with the DLR transitional arrangements. The letter went on to assess the question of Article 8 under Appendix FM of the Immigration Rules. The decision noted as follows:

Having excluded any claim by MBT on the basis of his private life as assessed under Rule 276ADE, the decision went on to consider exceptional circumstances outside the Immigration Rules and s.55 of the Borders, Citizenship and Immigration Act 2009 (the “2009 Act”). The decision records as follows:

The notice under the 1971 Act which accompanied this decision re-imposed the same conditions subject to which MBT had been previously granted RLR.

In a statement dated 22^nd December 2014, which was considered as part of the respondent’s decision of 20^th March 2015, MBT expresses his concern about the impact upon him both of the temporary nature of the six months RLR which he has been granted and also the condition in relation to the prospects of him obtaining employment which in turn caused anxiety and insecurity to him and his family as a result of the financial pressure which it places them under. He states that in effect it has made it impossible for him to find work. He also expresses his concern about the reporting condition and provides evidence about an incident when as a result of stress caused by his being unsure as to when he should have reported, he suffered an episode of ill health and a subsequent period of anxiety and distress. He also explains that the limited periods of the earlier DLR and current RLR preclude him from pursuing courses in higher education which he would have wished to follow.

The respondent's DLR policy

We have evidence as to the evolution of the respondent’s policy in relation to persons in the category of MS and MBT, namely people who are excluded from the Refugee Convention but who it is not possible to return as a result of the protection afforded by Article 3. This is as follows.

In Asylum Directorate Instructions dated July 1998, criteria were established for the granting of exceptional leave to remain. Under the “eligibility criteria” exceptional leave to remain was mandatory for persons excluded from the Refugee Convention but who cannot be removed due to Article 3 of the ECHR. The document describes that prior to 27^th July 1998 people granted exceptional leave to enter or remain were normally given 12 months leave followed by two periods of three years but that after 27^th July 1998 they would normally be granted four years leave.

On 1^st April 2003, exceptional leave was replaced with DLR including for persons who were excluded from the Refugee Convention but who could not be removed due to Article 3 of the ECHR. The document named: “API March 2003 Discretionary Leave” had indicated that, in the case of persons whose removal would be in breach of Article 3 of the ECHR, DLR would be granted for a variable period dependent upon the basis upon which it was being granted but initially for no longer than three years but if they are excluded from the Refugee Convention, the initial period for which DLR is granted “should” be six months. The document went on to observe that, where an extension of leave was sought after a period of DLR, the request would be subject of an active review.

In relation to applications for settlement, the March 2003 API provided that a person who is not excluded would not become eligible for settlement until they had completed six years of DLR. That period would be longer, at least 10 years, for those in the excluded category. The excluded category was dealt with in relation to applications for settlement within section 8 of the document as follows:

In the period prior to the introduction of the RLR policy on 2^nd September 2011, the March 2003 API was replaced by (it would seem) at least two versions of the DLR policy (in force, it would seem, from 27^th February 2007 and 18^th December 2008 respectively), both of which provided that excluded persons who cannot be removed due to Article 3 of the ECHR should normally be granted DLR for six months and that such persons were not eligible for consideration for settlement until they had completed at least 10 years’ DLR.

In R (on the application of Mayaya and others) v Secretary of State for the Home Department [2011] EWHC 3088 (Admin) (25^th November 2011), Cranston J held that the March 2003 API breached the no-fettering principle by suggesting that a person must always have at least ten years’ DLR to be granted ILR. By an Order of the Court of Appeal in the same case, sealed on 19 March 2013, parts of the DLR policy that was in force before 9^th July 2012 were struck down by consent as being unlawful, including the provision that excluded persons were not eligible for consideration for settlement until they had completed ten years of DLR.

The next DLR policy that came into force was the version that was in force at least from November 2012. It specifically refers to the RLR policy, from which it follows that it came into force either simultaneously with the RLR policy or subsequent to the RLR policy introduced on 2^nd September 2011. We shall refer to this policy hereafter as the “November 2012 DLR policy”. Unfortunately, the precise date on which the November 2012 DLR policy came into force is not clear from the papers before us.

The November 2012 DLR policy provides, inter alia, as follows:

With effect from 24 June 2014, the November 2012 DLR policy was replaced by the policy which continues to apply currently and which we will refer to as the “June 2014 DLR policy”. The June 2014 DLR policy provides, inter alia, as follows:

Accordingly, it will be seen that the current DLR policy provides that the normal period for which DLR is granted under the DLR policy is six months where the person is excluded from the Refugee Convention, cannot be removed due to the ECHR and does not fall within the RLR policy. Under the DLR policy, a person will normally become eligible for consideration for settlement after completing 10 years continuous DLR unless there are any criminality or exclusion issues and provided an application for further leave has been made in accordance with s.3C of the 1971 Act.

It is to be noted that there was nothing in any version of the DLR policy that provided for the imposition of conditions upon the grant of DLR.

The RLR policy and guidance

On 2^nd September 2011, there was a change in policy, as will be evident from what we have set out above. It is important to understand the taxonomy of the documents to which we were referred during the course of argument and which forms the structure of the decision making process which we are considering. After the hearing, we received, in accordance with a direction given at the hearing, further evidence from Ms Cole in relation to the status of the documents which we received in the evidence and which we set out below bearing on the question of RLR. That witness evidence is not entirely clear but appears to support the descriptions of the status of the documents which we were given at the hearing and which are reflected in what follows.

Firstly, on 2^nd September 2011 the UKBA issued a policy statement entitled “Policy Statement on Article 1F of the Refugee Convention: restricted discretionary leave”. The policy statement provided as follows:

Pursuant to this policy, on 28^th May 2012 an Asylum Casework Instruction was published. The respondent’s position in submissions made to us was that was not policy but was guidance in order to assist in the implementation of the RLR policy and decision making. This is supported by the subsequent evidence in the main. The summary of the policy was set out as follows:

In respect of children, the Asylum Casework Instruction provided as follows:

Turning to the issue of the duration of leave, the Asylum Casework Instruction provided as follows:

The Asylum Casework Instruction then proceeds to address the various categories of conditions. In relation to employment it provides as follows:

In respect of the residence condition, the Asylum Casework Instructions provided as follows:

Turning to reporting restrictions, the Asylum Casework Instruction provided as follows:

In terms of the restriction on studies, the Asylum Casework Instruction stated as follows:

Finally, so far as is relevant to the arguments presented in the case, the Asylum Casework Instruction provided at section 9 for “active reviews”. The content of the document in this respect is as follows:

The Asylum Casework Instruction dated 28^th May 2012 was updated and replaced on 23^rd January 2015 by a document entitled “Asylum Policy Instruction: Restricted Leave”. Again, this document enjoyed the same status as the Asylum Casework Instruction, namely, that it was guidance rather than policy and provided for the purpose of assisting the application of the RLR policy. Much of the document dated 23^rd January 2015 simply reiterated what was in the document from 28^th May 2012. By way of background the document observes as follows:

A new feature of the “Asylum Policy Instruction: Restricted Leave” dated 23^rd January 2015 was that it provided that individuals on RLR would not be able to have recourse to public funds unless they were destitute. A further new addition was that the RLR policy now included a section dealing with “applications for indefinite leave to remain”. In respect of such applications the document provided as follows:

The respondent has lodged witness statements. Firstly, a witness statement has been provided dated 29^th May 2015 by Ms Louise Cole who is a higher executive officer at the Home Office working in their Criminality Policy Team. In her witness statement she contends that RLR is an immigration measure and not a national security measure. She describes it as a means whereby the respondent meets her international obligations (by not removing a person in breach of the ECHR) without leaving them in limbo without leave to remain.

Ms Cole sets out the objectives of the RLR policy in terms of the public interest in maintaining the integrity of immigration control, public protection in relation to ensuring that the respondent is able to monitor where an individual lives and works together with preventing access to positions of influence or trust and, thirdly, upholding the rule of law internationally. She then observes the following in relation to risk a person poses in deciding the conditions to be imposed:

Ms Cole then turns to consideration of the imposition of conditions. In that regard, she observes as follows:

Turning to the comparison between the RLR policy and Terrorism Prevention and Investigation Measures (“TPIM”) Ms Cole observes as follows:

A witness statement dated 28^th May 2015 has been provided by Ms Louise O’Sullivan who is the Head of Terrorism Prevention and Investigation Measures Policy and Litigation in the Office for Security and Counter Terrorism at the Home Office. In her witness statement, she describes the TPIM regime. She states that from the perspective of the TPIM team, the TPIM and RLR measures are not equivalent or alternative measures but have different purposes scope and statutory basis. She states that nationality and immigration status have no relevance to TPIM notices and that they do not have any immigration function. She notes TPIM notices can be made both against British nationals and foreign nationals irrespective of their immigration status.

The third witness statement provided by the respondent is dated 22^nd May 2015 from Mr Chris Minchell who is a senior executive officer within the Home Office. He provided up-to-date evidence in relation to the application of the RLR policy. He confirms in his evidence that there are a total of 62 individuals with leave under the RLR policy, of whom 38 were excluded from the Refugee Convention under Article 1F(a), 4 under Article 1F(b), 14 under Article 1F(c) and 6 excluded under two or more of the exclusion clauses.

Helpfully Ms Stephanie Harrison QC and Ms Charlotte Kilroy who appeared on behalf of MS and Ms Amanda Weston who appeared on behalf of MBT distilled the questions which they raised and therefore the issues which arise in each of these judicial reviews claims for the purpose of focusing the hearing and assisting us with our decision making. That exposition of the issues and the relief sought is set out below:

Is the RLR Policy ultra vires the enabling power in s.3(1)(c) of the 1971 Act?

As will be seen from the list of issues, this question of statutory construction is put in a number of ways. The argument initially focuses on the particular wording of the section and whether it can sustain the imposition of conditions in the circumstances of persons excluded from the Refugee Convention. It examines the statutory purpose and whether or not the use of conditions is outwith that statutory purpose examining, in particular, the availability of alternative statutory schemes for achieving the objectives of the RLR policy.

The starting point for the consideration of these arguments is s.3(1) which provides as follows:

The argument based upon the statutory language focuses on the reference in s.3(1)(c) to leave being given “subject to” the conditions. The submission made is in essence that that phrase has to be read as requiring the leave to be subject to or compliant with the conditions which are imposed. In other words, the conditions which are imposed must be integral to the grant of leave and if they are breached lead to that leave being curtailed. But for those conditions, leave would not be granted. It is argued that, in the scenario contemplated by the 1971 Act, both the respondent’s officers and the individuals have a choice: the respondent has a choice whether to grant leave to enter and the individual has a choice as to whether to accept any conditions. If the individual does not accept the conditions he/she is not permitted to use the leave to enter. If the individual uses the leave to enter but breaks the conditions he is liable to criminal prosecution. The following two examples are given: entry clearance granted for the purpose of study is subject to restrictions on employment; entry clearance granted for the purpose of visits is subject to restrictions on access to public funds and employment. It is argued that the type of conditions in the list at s.3(1)(c) were designed to implement the substantive Immigration Rules permitting leave to enter or remain to be granted for specific and limited reasons whether to take employment, to study, or to join family and subject to meeting identified conditions as to duration and purpose.

Accordingly, it is argued that the language in s.3(1)(c) does not mandate or justify the imposition of conditions on those who cannot be removed because of acknowledged breaches of Article 3 that would arise from them being removed and therefore who must be granted leave. That leave cannot be contingent upon the imposition of conditions and could not be curtailed if the conditions were breached. Attention was drawn during the course of argument to the cases of R v Somerset County Council ex parte Fewings [1995] 1 All ER 513 and R v Richmond Upon Thames London Borough Council ex parte Watson [2001] QB 370 to support the proposition that in order to act, and in particular to impose the conditions in these cases, specific statutory authority was required. It was submitted that in construing statutory powers whose exercise restricts fundamental common law rights a strict and narrow approach to construction should be adopted (see R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245.) In particular in the present case, in that, human rights were at stake, express language was required from Parliament to justify a construction which would support interference with those rights (see R v Home Secretary ex parte Simms [2000] 2 AC, in particular in the speech of Lord Hoffmann at page 131 E-G).

All of these broad propositions of public law and statutory construction are uncontroversial, in our view, and provide an important bedrock for considering the nature of the applicant’s submissions. However, we are satisfied that the statutory language, construed against the principles set out above and in the light of the overall statutory scheme provides power for conditions to be imposed on the leave of individuals in the excluded category of the applicants. Our reasons for reaching this conclusion are as follows.

Firstly, the terms of the provision, simply but strictly construed empower the imposition of conditions whenever leave is granted. There is nothing within the language of the statute itself that limits the imposition of conditions to certain types of leave or leave being granted in certain circumstances, nor is there anything in the language that requires the conditions imposed to relate to the purpose for which leave is being granted. Secondly, it is important to appreciate that the statute does not create a general power to impose conditions of any kind but only particular types of condition. Contrary to the submissions made on behalf of the applicants, the types of conditions listed in s.3(1)(c) are not simply directed to the classes of leave (for example to work or as a student) but are also directed to issues which are plainly directed to enforcement; for example, registration with the police, reporting conditions and residence conditions. These classes of condition are not therefore simply limited to regulating the purpose for which leave is being granted but also have a direct bearing on ensuring that if removal is for whatever reason possible or necessary, enforcement of immigration control can be more easily achieved. Thus, the argument that the conditions imposed must somehow be integral to the grant of leave in the sense of being referable to its purpose is not supported by the statutory language.

Thirdly, we are unable to accept the proposition that the statutory language only mandates the imposition of conditions if breach of those conditions would lead to leave being curtailed. Such an interpretation is impossible to reconcile with the fact that s.3(1)(c) expressly permits the imposition of conditions requiring registration with the police, reporting conditions and conditions as to residence. Furthermore, amongst the battery of enforcement measures available to the respondent is, for instance, the ability under s.24(1)(b)(ii) to prosecute a person for breach of a condition on their leave. Thus there may be a variety of sanctions for breach of condition which fall far short of the curtailment of leave. Thus, the fact that leave could not be curtailed in the case of an excluded person who cannot be removed such as the applicants in this case, does not justify the construction claimed, namely that conditions cannot be imposed on their leave because conditions could only be imposed which could lead to leave being curtailed.

These conclusions arise simply from an examination of the statute itself and the statutory scheme of the 1971 Act.

The applicants’ submissions went on to support their suggested construction by means of other arguments extraneous to the 1971 Act. Those arguments were as follows.

The first argument concerned the provisions of two Orders made under the 1971 Act. Under the Immigration (Leave to Enter and Remain) Order 2000, provisions are made as to the grant of entry clearance. In particular, article 3 thereof requires entry clearance to be endorsed with any conditions to which it is subject and under article 5 provision is made as to the imposition on leave of conditions empowered by s.3 of the 1971 Act. By contrast the Immigration (Leave to Enter) Order 2001 addresses specifically by article 2(2) a person who seeks leave to enter on asylum or human rights grounds. The 2001 Order does not contain any mention whatsoever of the imposition of conditions. It is submitted that this contrast between the two Orders points up the contrast between those who are granted leave to remain on human rights grounds where conditions under s.3(1) cannot be imposed and other types of persons upon whose leave conditions can be imposed.

This submission does not persuade us to depart from the principal conclusion as to the appropriate construction of s.3(1)(c) that we have set out above. It is important to appreciate that these Orders were made deploying the power under s.3A(2) of the 1971 Act which provides as follows:

The first point which arises is that it can be seen from the power which is used that the Secretary of State is not obliged to provide Orders which deal exhaustively with all categories of persons or all categories of leave and conditions which might arise. The second point to note is that s.3A(1) and (2) specifically envisage that conditions may or may not be imposed when leave is given (see the words: “in particular” in the opening line of s.3A(2)).

Thirdly, we accept the submission made on behalf of the respondent by Ms Julie Anderson that the Orders do not and could not constrain the proper use of power under the primary legislation as they are a piece of secondary legislation.

The second argument raised by the applicants relates to considerations arising from the case of R (S and others) v Secretary of State for the Home Department [2004] EWHC 1111 (Admin); [2006] EWCA Civ 1157. The circumstances of that case were that the claimants were Afghan nationals who hijacked an internal flight in Afghanistan and arrived in the aircraft in the United Kingdom where they were charged and convicted of various offences associated with the hijacking (albeit that those convictions were later quashed). They claimed asylum and their claim was refused but it was concluded that their removal to Afghanistan would violate their rights under Article 3 of the ECHR. The Secretary of State refused to grant the claimants discretionary leave of any kind and instead placed them on temporary admission. This was pursuant to a modification to the Secretary of State’s policy on humanitarian protection and discretionary leave whereby it was concluded that a person falling within the excluded category would not be granted leave but placed on temporary admission. Before Sullivan J (as he then was) the policy was declared unlawful and the delays involved in reaching a decision which implemented the decision reached on the asylum appeal were also found to be unlawful. At paragraph 67 of Sullivan J’s judgment, he records the following exchange during the course of argument:

The applicants rely upon this exchange to found the submission that in effect what was being observed during the course of argument in that case contained the implicit submission that those who were excluded from the Refugee Convention but who could not be returned owing to breaches of Article 3 could not have conditions imposed on their leave. Furthermore, it was submitted that the effect of this case, in particular in the decision of the Court of Appeal, was that a person in that situation had to be granted a form of leave to remain and therefore it was Article 3 which created the right to remain further reinforcing the contention that such leave could not be made subject to conditions. The relevant extract from the Court of Appeal’s judgment in this respect was as follows from the leading judgment of Brooke LJ:

We are unable to accept that the observations in this case are capable of bearing the weight and meaning attributed to them by the applicants. Paragraph 44 of the judgment draws attention to the fact that Parliament created the status in question (i.e. someone who has in fact entered the United Kingdom but is deemed not to have entered) for those persons identified in paragraph 21(1) of Schedule 2 of the 1971 Act. Under Schedule 2 with particular reference to paragraphs 2(1), 16(1) and 21(1), an Immigration Officer had the authority to grant temporary admission instead of detaining persons who are required to submit to examination pending a decision as to whether to give or refuse leave to enter. That was the purpose for which temporary admission could be given, whereas the Secretary of State had used the power to grant temporary admission to a different category of persons (those who could not be removed without infringing their ECHR rights).

Plainly, the case is authority for the proposition that persons who are excluded from the Refugee Convention but who cannot be removed due to Article 3 of the ECHR cannot be granted temporary admission and must be granted some form leave. It is not authority for the proposition the applicants seemingly advance, that conditions cannot be imposed on those who must be granted leave. There is nothing in the judgment of Sullivan J in the High Court or Brooke LJ in the Court of Appeal that supports the proposition advanced by the applicants, nor is there anything in those judgments that supports the suggestion that there is no power within the 1971 Act to grant RLR as contemplated by the RLR policy.

The final element of the applicants’ argument in this part of the case is reliance on provisions in the Criminal Justice and Immigration Act 2008 (the “CJIA 2008”), in particular ss.131-133. It is important to note that these sections have yet to be brought into force. Under s.131 a person is a “foreign criminal” if, amongst other circumstances, he or she is not a British citizen and is excluded from the Refugee Convention by virtue of Article 1F. Under s.130, the Secretary of State may designate a person (subject to certain exceptions) who is a foreign criminal and who is liable to deportation but cannot be removed from the United Kingdom because of s.6 of the Human Rights Act 1998. The effect of designation is described by s.132 as follows:

The section goes on to provide for criminal sanctions if without reasonable excuse a condition is breached. Section 136 provides that the designation of a person as a foreign criminal lapses upon them being granted leave to enter or remain amongst other circumstances.

The applicants’ submission arising from ss.131-133 of the CJIA 2008 (albeit not yet in force) is that this status was designed to cure the illegality of the policy in the case of S. Further, and perhaps more importantly, the applicants draw attention to the fact that under s.133 the conditions are imposed “on a designated person” and not on the leave which they are granted. Thus, it is submitted that in circumstances which apply to the present applicants, namely that leave must be granted because of the breach of Article 3 that would result from their removal, it is not possible under the 1971 Act to impose conditions on those persons in the way which has been done by the RLR policy. It is submitted that the only way that this could be achieved would be by the specific statutory mechanism created under the CJIA 2008 to enable that to occur.

Again, although attractively made, we are unable to accept that proposition. It may well be the case that the designated person scheme was created under the CJIA 2008 in response to S. When it comes into force, it will create a new category of persons who will not have leave and yet will not be treated as being in the United Kingdom in breach of the Immigration Rules. Since such persons will not have leave, it was necessary for specific statutory provision to be made for the imposition of conditions on them. That is the reason why the designated person scheme created under the CJIA 2008 provides for conditions to be imposed on the person. The existence of that separate statutory regime creating a particular class of person that did not exist previously does not justify construing differently the plain words of s.3(1) of the 1971 Act which clearly in our view empower the imposition of certain types of condition when leave is being granted. Again, the fact that leave has to be granted to persons in this category does not affect the power enabling conditions to be imposed. It is not legitimate to imply that the words “subject to” justify the contention that conditions could only be imposed where but for those conditions leave would be refused. In our view even where there is no choice other than to grant leave (in particular, for instance, as a result of the effect of the case of S) the leave which has to be granted can be regulated by the imposition of the types of condition identified in s.3(1)(c).

The alternative way in which the submissions as to the vires of the RLR policy are developed relates to the contention that the policy is outwith the statutory purpose. The principles of public law applicable in this context are straightforward. A power cannot be construed in a way which widens the purpose of the Act containing it or departs from or varies its primary objective (see, for instance, Utah Construction and Engineering PTY Limited v Pataky [1966] AC 629 and R (Public Law Project) v Lord Chancellor [2015] 1 WLR 262 paragraph 40 – 41.)

Here it is submitted that the conditions which are imposed go beyond any conditions necessary to give effect to the purpose of the Act which is an immigration measure. In particular, attention is drawn to, for instance, the public protection element of the purpose of the RLR policy and the use of conditions for instance to obviate the risk of potential radicalisation of communities (through the imposition of residence conditions) or preventing contact with vulnerable people (through, for instance, the conditions in relation to permission for work) as having an ulterior purpose, in particular related to threats to national security, which are beyond the purpose of the 1971 Act and in particular s.3 of the 1971 Act. It is in this connection that again attention is drawn to the provisions of the TPIMA 2011 and the statutory requirements which are created before a TPIM can be imposed. Section 2 of the TPIMA 2011 requires the conditions within s.3 to be met. It is unnecessary for the purposes of this decision to set out each of the five conditions which are identified. Suffice it to say that the Secretary of State must show that it is necessary to impose a TPIM on an individual “for purposes connected with protecting members of the public from a risk of terrorism” and “preventing or restricting the individual's involvement in terrorism-related activities”. In other words, individuals on whom TPIMs may be imposed present an active terrorist threat.

Within Schedule 1 of the TPIMA 2011 a range of measures are provided. They include measures in relation to overnight residence, measures in relation to travel, exclusion from particular areas or places and measures connected with the restriction of work and study. The existence of these measures is relied upon by the applicants to demonstrate that the RLR policy has in effect developed an enlarged ulterior purpose engaged with threats to national security which are outwith the purpose of s.3 of the 1971 Act as an immigration instrument. Whilst it is accepted by the applicants that considerations of public protection can arise in detention and deportation cases this dimension is, it is submitted, specifically recognised in s.3(6) of the 1971 Act. Detention is a parasitic power upon this particular purpose of the 1971 Act. By contrast it is submitted there is nothing in s.3(1) which justifies or is referable to public protection.

In her submissions in response, Ms Anderson draws attention to the three purposes set out at [56] above (namely the public interest in maintaining the integrity of immigration control, public protection to ensure monitoring of where an individual lives and works and preventing their access to positions of trust, and upholding the international rule of law by supporting broader international obligations to remove individuals excluded from the Convention as soon as possible) which are the specific rationale for the RLR policy. She contends that they do not directly identify current active national security protection.

In our view, the key is to understand the different purposes of the TPIMA 2011 and the RLR policy. As we have said, individuals on whom TPIMs may be placed present an active terrorist threat; the measures are imposed to protect members of the public from a risk of terrorism and preventing or restricting the individual's involvement in terrorism-related activities. In contrast, those who are subject only to the RLR policy may not present an active terrorist threat notwithstanding that one purpose of the RLR policy is stated to be public protection in furtherance of which conditions are imposed to monitor where the individual lives and works and/or prevent the individual's access to positions of trust. It is perfectly rational and lawful for the Secretary of State to seek to impose such conditions on those who have been involved in terrorism-related activities in the past but may not currently present an active terrorist threat. Although individuals subject only to the RLR policy may not be considered by the Secretary of State to be an active terrorist threat, it is nevertheless perfectly rational and lawful for her to protect the public by imposing conditions to ensure that contact is maintained with them whilst they are in the United Kingdom as well as prevent them gaining positions of trust and therefore influence until such time as removal is possible or they must be granted settlement. The necessity to do so arises from the fact that they engaged in terrorism-related activities in the past.

There may be certain individuals who are within the purview of both the TPIM regime and also the RLR policy, and to whom both regimes may apply. However, that does not in our view justify the conclusion that the RLR policy is outwith the purpose of the 1971 Act. We are therefore unable to accept the implicit submission that there is a covert or unspecified purpose of the RLR policy related to national security which is to be inferred and which is illegitimate.

In our view, each of the three purposes which have been identified as the rationale for the imposition of conditions pursuant to the RLR policy are obviously and self evidently part of the purpose of immigration control which is enshrined within the 1971 Act. We are unable to accept some distinction or ring fencing of the engagement of public protection as a purpose of immigration control or the contention that public protection is irrelevant to the imposition of conditions upon the grant of leave. It is not a consideration which is solely and exclusively confined to the consideration of deportation under s.3(6) but, where it arises in the circumstances of any individual case, is a factor which is clearly engaged in the purpose of having immigration control which is efficient and effective. Therefore, insofar as the RLR policy seeks to impose conditions on the basis of public protection, it does not stray beyond the purpose of the 1971 Act in controlling and regulating immigration. Insofar as there may be some individuals who are subject to the RLR policy and who also, simultaneously, present a current and active national security risk, then there may be some overlap between the objectives of immigration and also national security objectives which are the subject of the TPIMA 2011. The existence of those individuals and the possibility that parallel measures would be required does not justify concluding that the use of conditions under the RLR policy for the purpose of national security takes the RLR policy beyond the purpose of the Act. It is simply the statement that in those cases there will be a public protection dimension to their cases which comprehends national security.

The final argument under this particular heading deployed by the applicants is the contention that the existence of a specific statutory power, namely that which is contained within the TPMIA 2011, precludes the use of the RLR policy in relation to the purpose of protecting national security and renders it unlawful. It is contended that any general power under the 1971 Act to impose conditions should not be deployed where there is a specific power under the TPIMA 2011 to accomplish the end in mind. The generality of this proposition was supported by reference to R (Lapporte) v Chief Constable of Gloucestershire [2007] 2 AC 105 and in particular the speech of Lord Bingham at paragraph 46. Whilst this authority related to the potential intervention of the common law over and above powers and duties carefully defined by Parliament (which was considered illegitimate) there are authorities which bear more closely on the circumstances of this case and the concern that general powers should not be used if a specific power has been provided for the purpose. In particular, the applicants drew attention to Birmingham City Council v Shafi [2009] 1 WLR 1961 which concerned a local authority’s application for an injunction under s.222 of the Local Government Act 1972 instead of their use of powers provided to them under the Crime and Disorder Act 1998 to seek an anti-social behavior order. In the leading judgment of Sir Anthony Clarke MR and Rix LJ the following was observed:

Similar arguments were also deployed in the case of Langley v Liverpool City Council [2006] 1 WLR 375. That was a case concerned with emergency protection orders under s.44 of the Children Act 1989 (the “1989 Act”) and the emergency powers given to the police to remove and accommodate children in cases of emergency under s.46 of the 1989 Act. The Court of Appeal concluded that in the light of the specific provisions and safeguards of s.44 it had primacy within the statutory scheme and therefore where there was an emergency protection order in place the court held that the s.46 powers should not be exercised unless there were compelling reasons to do so.

Against the background of these principles it was contended on behalf of the applicants that the existence of the powers to impose a TPIM under the TPIMA 2011, that was the measure which should be used in cases engaging national security and that the use of the RLR policy in such cases was unlawful because of the existence of this alternative statutory power. It was observed as part of these submissions that the power under the TPIMA 2011 contained specific safeguards and procedures which could be circumvented by the imposition of the RLR policy.

We are not persuaded that there is validity in the applicants’ submissions in this respect. The TPIMA 2011 applies to British citizens and foreign nationals alike, provided they present an active terrorist threat. The RLR policy applies only to foreign nationals, since they must be granted some form of leave (whereas British citizens obviously do not require leave) and the purpose of the RLR policy is to set out the policy and guidance concerning the duration of the leave and the conditions to be imposed. It follows that foreign nationals who are subject to the TPIMA measures present an active terrorist threat whereas those who are not subject to TPIMA measures but whose leave is granted under the RLR policy may not present such a threat, notwithstanding that there may be public protection issues in their case in the sense that their past involvement in terrorism-related activity justifies the Secretary of State imposing conditions to ensure that contact is maintained with them and prevent their access to positions of trust and therefore influence. Thus it is important to observe that, so far as concerns foreign nationals who are excluded and cannot be removed, the TPIMA 2011 could only potentially apply to those who present an active terrorist threat. There will be very many persons who are excluded from the Refugee Convention and who cannot be returned for Article 3 reasons who will not present any such threat (and the applicants in the present cases are two such examples).

Secondly, it is important to appreciate that the RLR policy and its public protection dimension may in some cases have a national security content but it is in reality an immigration measure in which national security may in some limited number of cases be a dimension of its purpose. That is very distinct from the TPIM regime which is unarguably a national security measure which has no immigration dimension to it at all. These two regimes are therefore fulfilling two very different roles in the regulation of particular individuals. That is not to say that there may not be cases, as Ms Anderson submitted, where both regimes may be in play. There may be an excluded foreign national individual who cannot be removed for Article 3 reasons who is properly regarded as a threat to national security as a result of active engagement in terrorist activities. Such a person would be granted RLR and consideration given to the imposition of conditions upon them. They could simultaneously be the subject of a TPIM notice. Consideration in both regimes would need to be given to the imposition of conditions and no doubt duplication of conditions and the avoidance of it would be part of the consideration in relation to exercising those powers. However, it is clear to us that the existence of the separate TPIM regime and the powers which it contains does not obviate the need for the RLR policy and the limitations which it places on the extent of leave being granted and the conditions under which it is being imposed.

In summary therefore we are entirely satisfied that the RLR policy is not, for any of the reasons offered by the applicants, ultra vires the 1971 Act.

Is the policy in breach of the requirement under s.3(2) of the 1971 Act?

The nature of this argument is that, by virtue of s.3(2) of the 1971 Act, the Secretary of State ought to have placed the RLR policy before Parliament for endorsement before its lawful operation. The starting point for this argument is, of course, s.3(2) itself which provides as follows:

The effect of s.3(2) and the requirement to lay rules before Parliament was considered by the Supreme Court in the case of R (Alvi) v Home Secretary [2012] 1 WLR 2208. Lord Hope analysed the effect of the 1971 Act and the requirements in relation to s.3(2) at paragraph 41 as follows:

Lord Hope went on to consider the definition of those matters which pursuant to s.3(2) should be laid before Parliament and observed at paragraph 63 of his judgment as follows:

In his judgment agreeing with Lord Hope, Lord Dyson JSC concluded that the approach should be as follows:

These principles were also engaged in the case of R (Munir) v Secretary of State for the Home Department [2012] 1 WLR 2192. That case concerned policy DP5/96 which was withdrawn in 2008 and the claimant contended that its withdrawal was unfair and further amounted to a change in the Immigration Rules within the meaning of s.3(2) that ought to have been laid before Parliament. In giving his judgment (with which all other judges sitting in the Supreme Court agreed) Lord Dyson JSC concluded as follows:

The question of whether or not the RLR policy ought to have been the subject of the s.3(2) procedure was considered by Patterson J in the case of R (YA) v Secretary of State for the Home Department [2013] EWHC 3229 (Admin). For reasons which we do not need to go into, the judge concluded that the claim which was before her was academic. She nonetheless went on to consider the substantive grounds on which the claim had been brought, amongst other things on the basis that the RLR policy was caught by the Alvi principle, but her conclusions were (as she herself observed in paragraph 39 of the judgment) all obiter dicta. Her conclusions in this respect were set out in her judgment from paragraph 58-70 as follows:

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

Clearly the key question for determining whether or not the RLR policy is caught by the s.3(2) procedure is the question of whether or not it is flexible. Is it drafted and designed to operate as being in the nature of a rule? Whilst her observations were, as set out above, obiter dicta we have no difficulty in accepting the conclusions which were reached by Patterson J in YA insofar as they bore upon the question of flexibility contained within the RLR policy so far as conditions were concerned. We would respectfully adopt the reasoning which has been set out above from her judgment in paragraphs 59-70. There are however a number of matters which we would wish to add to her conclusions.

Firstly, when Patterson J observed that she accepted “that the RLR policy applies to all cases who are excluded from the Refugee Convention by virtue of Article 1F but who cannot be removed by virtue of Article 3 of ECHR I find that the RLR policy is not dealing with whether leave to remain has to be granted,” she was not to be taken to be concluding that the question of the application of s.3(2) did not arise at all. In our view, the question plainly does arise because s.3(2) is directed, amongst other matters, to rules which address the imposition of conditions. Thus, insofar as the RLR policy is concerned with the imposition of conditions the question needs to be asked as to whether or not it is in the nature of a rule that ought to be placed before Parliament. Our conclusion in this respect is reinforced by the decision of Upper Tribunal Judge O’Connor in R (on the application of Fakih) v Secretary of State for the Home Department [2014] UKUT 0513 (IAC). That case concerned the application of a condition prohibiting an applicant having recourse to public funds where the policy in respect of the imposition of the condition was so inflexible that the judge concluded it was in the nature of a rule which ought to have been placed before Parliament pursuant to the s.3(2) procedure.

Secondly, in the most recent iteration of the guidance (the “Asylum Policy Instruction: Restricted Leave” dated 23^rd January 2015) accompanying the RLR policy (which was not before Patterson J), it is not correct to conclude that, although the RLR policy will apply to all persons in the excluded category that the outcome will always and inevitably be the grant of RLR. Paragraph 1.2.5 observes that although it is likely to be a very rare occurrence, there will be exceptional circumstances in some cases where eligibility for settlement and subsequently citizenship may arise. That is further elaborated in section 4.12 of the guidance adopting the principles set out in the case of N which, it will be recalled, recognise that there would come a time when in some individual cases that the grant of ILR might be appropriate. Thus as presently formulated the policy has additional flexibility to that which was noted by Patterson J.

Thus, in summary, whilst the RLR policy is an instrument about which the s.3(2) question should be posed, we are satisfied that the combination of the flexibility in the RLR policy, flexibility which is further enhanced in the most recent policy effective from 23 January 2015 indicating that there will be some albeit rare cases in which RLR will not be imposed, together with the flexibility in relation to the conditions noted by Patterson J, lead us to the conclusion that the RLR policy is not in the nature of a rule which should have been laid before Parliament. True it is that the evidence obtained by the applicants in response to the FOI request which is described at [20] (showing that all 56 people currently granted RLR had reporting, prohibition of study without written consent and residence conditions imposed upon them, all bar two had employment conditions imposed, all 56 had been granted RLR for a duration of six months at a time and none had been granted RLR for a period more or less than six months) suggests that in the relatively limited number of cases in which the RLR policy has been applied, similar outcomes in respect of the various applicants have arisen. We are satisfied that, whilst the outcomes show that the decision makers placed weight (which they were fully entitled to do, as the individuals concerned had engaged in terrorist-related activity in the past) on the presumption that the duration of leave will usually be six months and the presumption in favour of the imposition of all four conditions, the fact is that employment restrictions were not imposed on two out of fifty-six individuals. In our view, this does not show inflexibility but it shows weight being placed on the presumption. It is also important in our view to examine the RLR policy itself and its terms to see whether it is in reality a rule as to the practice to be followed in respect of these cases. On examination of the RLR policy, we are satisfied that it is not.

Does the RLR policy unlawfully fetter the respondent’s discretion?

The leading case in relation to the principles in respect of this ground is R v SSHD ex parte Venables [1998] AC 407 where at page 496-7 Lord Browne-Wilkinson explained as follows:

Similar reasoning can be found in the case of A-G ex rel Tilley v Wandsworth London Borough Council [1981] 1 WLR 854 in which there was a challenge to a policy adopted by a local authority that, where it had been determined that a family with young children were intentionally homeless if a subsequent approach was made to its social services department assistance with alternative housing would not be provided under the provisions of the Children and Young Persons Act 1963 albeit consideration would be given to the reception into care of the children if the circumstances warranted it. Templeman LJ observed at page 857H-858D as follows:

It is important to observe that both Brandon LJ and Lawton LJ agreed in the decision with Templeman LJ but on the basis that the Council’s resolution laid down a policy without making any exceptions at all and was invalid. In his very short judgment Brandon LJ reserved his opinion as to whether a resolution which laid down a general policy with a specific number of exceptions would also be invalid. That reservation was shared by Lawton LJ. We accept this authority as demonstrating quite clearly that a policy which admits of no exception and which therefore fetters the operation of a discretion is unlawful; we are unable to accept that it is binding authority for a broader proposition that a policy containing exceptions is an unlawful fetter upon discretion. The essential question is whether there is sufficient flexibility.

A further case cited to us in respect of this issue was R v Warwickshire County Council ex parte Collymore [1995] ELR 217. This was a case concerning the award of discretionary grants to students in particular those training for the legal profession. The evidence before the court demonstrated that whatever the individual circumstances of the case every application of such discretionary award was automatically rejected but along with the rejection there was notification that the applicant might seek a review of the decision. That notification included the following:

Similar propositions in relation to the inflexibility of the policy as were advanced in relation to the Alvi point set out above were made in this part of the case. It was submitted that the inflexible features of the RLR policy rendered it an unlawful fettering of discretion and further with reference to the Collymore case that the evidence which was available as to how the RLR policy had been operated showed that it was implemented far too rigidly and as a result proper consideration was not being given to individual cases.

We have already set out above our conclusions in relation to the flexibility inherent in the RLR policy. It is in our view entirely understandable that when dealing with individuals who have been excluded from the Refugee Convention as a result of Article 1F that the RLR policy will refer, as it does, to exceptional circumstances in relation to the consideration of settlement for such individuals. It is unsurprising that the number of individuals in this class of persons qualifying for settlement would be “rare”. We have already set out above, drawing on the conclusions of Patterson J in YA our agreement with her findings that the approach to the conditions to be applied under the RLR policy provides for flexibility as to how those conditions are firstly applied and secondly tailored to the circumstances of the individual. The application of the RLR policy in accordance with the guidelines in the “Asylum Casework Instruction” dated 28 May 2012 (and also the recent “the “Asylum Policy Instruction: Restricted Leave” dated 23^rd January 2015) facilitates that approach. Although there is some evidence that some features of the RLR policy have been applied in a similar fashion to all cases (for instance the provision of six months and nothing other than six months leave) and also that certain conditions such as reporting, not studying without written consent from the respondent and not being absent from home for more than three nights consecutively or more than ten nights in a rolling six month period have been consistently applied the detail in relation to the conditions does, on the evidence, vary from case to case.

For all of these reasons, we are not satisfied that the approach to decision making set out in the RLR policy results in there being insufficient flexibility and that the discretion of the decision maker is illegitimately fettered so as to render the RLR policy unlawful.

Article 8

The first element of the challenge brought by the applicant in relation to Article 8 is the contention that the purpose of the RLR policy in placing obstacles in the way of the development of family and private life so as to facilitate removal is not a legitimate aim. The provision of obstacles was contrary to the objective of Article 8 which was to secure the development of a full private and family life. In support of this submission the applicants commenced their arguments with reference to the case of Marckx v Belgium [1979] 2 EHRR 330 in which the European Court of Human Rights observed as follows ([31]):

It was the “positive obligations” that were the focus of the applicants’ submissions. In a domestic context, our attention was drawn to the case of Pawandeep Singh v Entry Clearance Officer, New Delhi [2005] QB 608 in which, in the course of delivering the leading judgment in the Court of Appeal, Dyson LJ (as he then was) observed as follows:

Against the background of this approach to Article 8, the applicants submitted that the rationale of the RLR policy, namely placing obstacles in the way of the establishment of family and private life, could not be a legitimate aim and therefore the RLR policy was not compliant with Article 8 and unlawful. This submission was reinforced by the importance of children who were British citizens being able to develop their family life as part and parcel of the Article 8 rights at stake.

We propose to deal with this submission before turning to questions of discrimination and proportionality which were raised by the applicants under the Article 8 heading. Our approach would in the first instance be governed by examining first the principles in relation to the question of whether or not the RLR policy pursues a legitimate aim. In that respect the starting point must be the seminal statement of the law in relation to the questions arising under Article 8 provided by Lord Bingham in the case of R (Razgar) v Home Secretary [2004] 2 AC 368. At paragraph 17 of his speech he analysed the position as follows:

In dealing in passing with the requirement that the interference with Article 8 be in accordance with the law, we have already addressed above questions associated with whether or not the RLR policy is lawful in terms of being within the powers provided by the 1971 Act and whether or not there are other aspects of illegality such as the fettering of discretion or being beyond the purposes of the statute. The question of legitimate aim arises under the fourth limb of the five-step approach explained in Razgar. We are in no doubt for reasons which will already have become obvious that the interference which arises under the RLR policy, both as to time limited periods of leave and also as to the conditions which are imposed upon that leave, is necessary for public safety, the economic wellbeing of the country, the prevention of crime and disorder and, in some cases, national security. Leaving aside the fact sensitive assessment of proportionality, we see no objection in principle to the interference with Article 8 rights which may arise through the limitation of the time period for leave or the conditions placed upon it. The reasons why they are necessary are appropriately and adequately explained in the guidelines in the “Asylum Casework Instruction” dated 28 May 2012 (and also the recent “the “Asylum Policy Instruction: Restricted Leave” dated 23^rd January 2015) providing the rationale for the RLR policy. Understood in this way and in accordance with the approach in Razgar, the interferences with Article 8 which occur are lawful and within the scope of Article 8. Although as a generality Article 8 may contain in its application some positive obligations, it is a qualified right. The issue in relation to any interference with Article 8, or any obstacle to the development or enhancement of Article 8 rights, is whether that interference is necessary in the various interests of a democratic society set out above. Once it has been concluded that it is necessary then the interference is justifiable and within the scope of the Article 8 right.

We would have reached these conclusions without the assistance of other authority. However, it is important to recall that observations were made by the Court of Appeal in the case of R (on the application of Kardi) v Secretary of State for the Home Department [2014] EWCA Civ 934 in which the question of the RLR policy and its application to the claimant was the subject of a judicial review. It needs to be borne in mind, as was observed by Ms Harrison, that the Court of Appeal in that case were not concerned, as we are, with a challenge to the validity of the RLR policy itself. The ambit of the challenge in that case was to its application to the particular circumstances of that claimant’s case. Moreover, as part and parcel of that challenge, it was accepted that the imposition of the RLR policy did interfere with Article 8 rights. There is no question therefore but that Article 8 rights are in play in the application of the RLR policy. Bearing these points in mind we nevertheless have derived support for our conclusions in relation to whether or not the RLR policy is in pursuit of a legitimate aim for the purposes of Article 8 from the observations made in the leading judgment of the Court of Appeal by Richards LJ as follows:

We are therefore satisfied that the RLR policy is in pursuit of a legitimate aim for the reasons set out above.

Turning to questions of discrimination and proportionality, the applicants place reliance on the case of A and others v Secretary of State for the Home Department [2005] 2 AC 68. That case concerned the position of foreign nationals who were suspected of terrorism and who were made the subject of detention under the Anti-Terrorism, Crime and Security Act 2001 (the “ATCSA 2001”). The arguments before the House of Lords ranged across, amongst other matters, whether or not the measures involved in that case were proportionate and whether or not they were unlawfully discriminatory. Dealing firstly with the question of proportionality, the leading speech of Lord Bingham commenced his consideration with citation of de Freitas v Permanent Secretary of Minister of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 said (at [30]):

In order to understand the conclusions reached by Lord Bingham with whom the majority of the House of Lords agreed, it is necessary to set out his summary of the appellant’s argument under proportionality which he accepted as being entirely valid. The argument was summarised in paragraph 31 of his speech as follows:

Lord Bingham accepted the validity of these arguments and concluded in relation to proportionality in paragraph 43 of his speech as follows:

Lord Bingham then turned to the question of discrimination. The issue of discrimination was advanced on the basis of breaches of Article 14 of the ECHR. That article sets out as follows:

Lord Bingham’s conclusions in relation to this aspect of the case were as follows:

Having considered the submissions in respect, firstly, of discrimination, we are not satisfied that there is any relevant analogy to be drawn from the case of A or that the principles involved in that case are engaged in the consideration of the lawfulness of the RLR policy. The purpose of the RLR Policy is not simply to protect the United Kingdom against the threat of terrorism (as was the ATCSA 2001). True it is that one of the purposes of the RLR policy engages public protection and that as part of that aspect of the RLR policy on occasion questions of national security may be engaged. But the purpose of the RLR policy is far broader and is directed at the undesirability of having persons excluded from the Refugee Convention under Article 1F within the United Kingdom, in that, as their removal cannot be achieved for Article 3 reasons, measures should be taken to maintain contact and to facilitate removal at the first opportunity notwithstanding that leave must be granted in the interim. That is the operational objective of the policy. It is, as we have emphasised above, an immigration measure and not a national security measure where considerations of the kind raised in the case of A arise. The underlying purpose of the RLR policy is to retain the ability to remove the individuals concerned if and when it is possible to do so. Insofar as the applicants have sought to compare their position with British nationals who have engaged in terrorist-related activity in the past but who no longer present an active terrorist threat, the reality is that British nationals do not require leave and cannot be removed. They are therefore not an appropriate comparator.

Turning to questions of proportionality, as we have already observed in relation to the conditions which were imposed in the particular case the decision of the Court of Appeal in Kardi concluded that the application of the RLR policy and conditions which flowed from it were in that case proportionate. It is unnecessary given that the consideration was specific to the circumstances of that claimant to set out the conclusions reached in paragraphs 34-44 but it suffices to cite the overall conclusion reached by Richards LJ in paragraph 47 as follows:

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

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

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

Given that family life may continue notwithstanding a time limited grant of RLR, very strong evidence would be needed to prevail over the public interest and public protection considerations which are given effect in the three purposes of the RLR policy (see [56] above) so as to make it unreasonable for the respondent not to grant RLR for more than six months or not to impose the usual conditions. This is only likely to occur very rarely indeed, save that it may be easier, depending on the circumstances, for an individual to establish a case for departing from the usual condition prohibiting studies than the other three conditions mentioned.

Is the RLR policy compatible with s.55 of the 2009 Act?

Section 55 of the 2009 Act provides as follows:

The application of this duty was considered by the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department. The appellant in that case was a national of Tanzania who had two children born in the United Kingdom who were both British citizens. By the time the case reached the Supreme Court it had been conceded by the Secretary of State that it would be disproportionate in the circumstances to remove the appellant from the United Kingdom. However, the case proceeded so as to establish general principles in relation to the s.55 duty and Article 8, bearing in mind that any decision maker would need to have regard to the interests of not simply an appellant but all those members of their family with whom they shared family life. Lady Hale’s judgment contains the following analysis of the approach which should be taken.

We have already dealt with the submissions that the terms of the RLR policy are such that there was insufficient flexibility and that the decision maker’s discretion was unlawfully fettered. These arguments were also advanced in relation to the duty under s.55. There is no need to repeat our assessment in the context of the s.55 duty. We turn now to the contention that the existence of the RLR policy itself gives rise to a breach of the duty under s.55. That is a proposition which we are unable to accept. Firstly, it is important to recall that the requirements of the duty are specifically referred to in the guidance with respect to the RLR policy itself together with a cross reference to other guidance in respect of the application of the s.55 duty. Secondly, we can see no reason why the RLR policy is in principle in conflict with the s.55 duty. There is no doubt, in the light of the principles which are to be derived from ZH, that the best interests of any children including in particular children who are British citizens must be a primary consideration when decision makers consider the imposition of a period of RLR and any associated conditions. As we have set out above, whilst the imposition of time limited leave may have an impact on the quality of family life, that is a matter which can, consistent with the s.55 duty, be properly taken into account at the time when decisions are reached. Similarly, the imposition of any conditions which might impinge upon the best interests of a child (such as a residence condition) will also require the best interests of the child to be a primary consideration. We note that the need to have regard to the s.55 duty is specifically recognised in paragraph 4.5.9 of the current version of the RLR policy. Nevertheless, given that family life may continue notwithstanding the imposition of the conditions, very strong evidence would be needed to prevail over the public interest and public protection considerations which are given effect in the three purposes of the RLR policy so as to make it unreasonable for the respondent not to grant RLR for more than six months or not to impose the usual conditions. This is only likely to occur very rarely indeed, save that, in our view, it may be easier, depending on the circumstances, to demonstrate unreasonableness in relation to the restriction on studies.

For these reasons we are, therefore, not able to accede to the proposition that the RLR policy is unlawful as being in principle inconsistent with the s.55 duty. That is not to say, in a similar vein to our conclusions in relation to Article 8, that in each individual case a careful evaluation of the best interests of any children involved in the decision making process should not be a primary consideration in the Article 8 assessment of an individual case.

As will be clear from the distillation of the issues arising in the case, there are a number of facets to the argument in relation to whether or not the decision to grant MS RLR under the RLR policy was lawful. The first of those is an argument related to the extensive delays involved in his case including in particular the nine years which it took to determine his application for ILR during the course of which, and as a result of the introduction of the RLR policy on 2 September 2011, he was deprived of the potential benefit of the respondent’s DLR policy in respect of the grant of ILR under the DLR policy. It is important that it is remembered that when MS’s claim was originally launched, it was based on the delays in dealing with his application and commenced at a time when there was no decision in his case. It was a claim which was, understandably, formulated on the basis of both illegality in the overall delay in dealing with his claim and “historic injustice” on the basis of a change in policy. This latter point was thrown into sharp focus by the decision reached in his case on 2^nd May 2014 applying the RLR policy.

For some time there has clearly been unease in the courts in relation to arguments based upon “historic injustice” or the argument that because of procedural default or changes in policy a benefit that a person might have had had procedures been properly operated or decisions promptly reached has evaporated putting them in a less advantageous position. These issues were recently considered by the Supreme Court in TN and MA (Afghanistan) v Secretary of State for the Home Department [2015] UKSC 40. During the course of the leading judgment of the Supreme Court given by Lord Toulson JSC consideration was given to the Court of Appeal’s decision in R (Rashid) v Secretary of State for the Home Department [2005] EWCA 744 which was subsequently criticised in R (S) v Secretary of State for the Home Department [2007] EWCA Civ 546. In Rashid it was held that the conspicuous unfairness which arose from the withdrawal of a policy which would have afforded the claimant refugee status which was withdrawn by the final stage of the decision making process outweighed the Ravichandran principle that asylum appeals should be determined by reference to the position at the time when the appellate decision is being reached (Ravichandran v Secretary of State for the Home Department [1996] Imm AR 97). Lord Toulson’s analysis of Rashid and S is to be found in paragraph 42 of his judgment as follows:

Having reviewed this conundrum and other cases in which the question of “historic injustice” had arisen particularly in the factual context of the case, Lord Toulson returned to resolving the position at paragraph 70-72 as follows:

We have formed the view that this recent decision of the Supreme Court effectively disposes of the arguments raised in MS’s case in relation to the delays in his case and the intervening cancellation of the DLR policy in his case as giving rise to any viable argument based upon a “historic injustice”. Whilst Ms Harrison sought to contend that, by virtue of paragraph 42 of Lord Toulson’s judgment, the approach which was taken by the Court of Appeal in S was still good law, in our view paragraphs 70-72 of Lord Toulson’s judgment made plain that the Rashid line of authority (including the case of S) are no longer to be followed or be regarded as representing the law. The Ravichandran principle applies and the question arising in relation to any review is whether the decision was lawful measured against the relevant facts and any relevant policy as they stand at the date of the review. In that context, the question of whether or not there has been lengthy delay and whether or not a claimant has lost an advantage as a result of an intervening change in the respondent’s policy, simply does not arise. Clearly there may be cases when the delays involved are so egregious as to amount to illegality. But that is a separate point and we shall examine it separately below in relation to MS’s case. Incompetent delay and inefficient decision making processes which may lead to the loss of benefit which might have arisen under a superseded policy can no longer amount to a basis of claim. There is, of course, a symmetry between this approach and the approach which was taken by the House of Lords in Odelola v Secretary of State for the Home Department [2009] 1 WLR 1230 in relation to the effect of changes to the Immigration Rules and the impact of those changes upon an applicant whose application is still current at the time when the Immigration Rules are changed.

In deference to the submissions which were made in relation to this aspect of the case, we would simply wish to add the following observations albeit that for the reasons we have already given we no longer think it sustainable for MS to argue that the delays coupled with the change in policy on 2 September 2011 from the DLR policy to the RLR policy for excluded persons who cannot be removed from the United Kingdom due to Article 3 of the ECHR entitles him to substantive relief.

The causative delay on which MS could rely is the delay between the date when his application for further leave to remain was made on 7^th July 2005 and 2^nd September 2011 when the RLR policy was introduced. That is the delay which occurred prior to the change in the policy upon which his contentions depend. We would not regard that six year delay as being sufficient to amount to illegality on the part of the respondent per se. It is undoubtedly incompetence for such a significant period of delay to occur without any explanation being offered by the respondent in respect of it. However, the incompetence involved does not extend to illegality.

The second element of the case specific to MS is whether or not the RLR policy has been properly understood and applied to him. As articulated in the skeleton, the case is put on the basis that, if contrary to MS’s contentions, it was appropriate for him to be considered to fall within the RLR policy, there was no proper basis for the imposition of the conditions and a time limited period of leave. For the reasons which we have already given, we regard the RLR policy as in principle lawful and there can be no doubt that MS is within the class of persons to which it applies. The question of the imposition of conditions we propose to deal with when dealing with the Article 8 dimensions of MS’s case.

The aspect of the decision making process in MS’s case which has caused us considerable misgivings is that related to the time limited period of leave and the question posed by Collins J in N and recited in the most recent iteration of the guidance, namely whether a time had come in MS’s case “when – provided the individual has behaved himself in this country – it would be proper to regard him as having put behind him, as it were, the original offending.” The arrival of this end point was also specifically contemplated in Kardi in Richards LJ’s judgment at paragraph 32:

As explored during the course of argument the consideration of whether or not this end point to the reasonable application of the RLR has been reached will depend upon a wide variety of factors. These will include not simply the question alluded to by Collins J as to whether the applicant has remained blamelessly in the United Kingdom for a lengthy period of time or the prospect of removal of the applicant to his or her home country identified by Richards LJ but also an appraisal of the political circumstances of the home country bearing in mind the international reputation of the United Kingdom which can be in point in these cases, and other case specific issues concerned with the particular circumstances of the original reason for exclusion from the Refugee Convention and the particular circumstances of the applicant and his life in the United Kingdom. This is not an exhaustive list since, in particular, any consideration of this aspect of the case would need to engage probably first and foremost, with the current state of the Immigration Rules in relation to long residence cases. Whilst it may be in relatively rare cases that this point is reached, nevertheless the inclusion of consideration of this issue within the RLR policy is for the reasons which we have given above an important feature of its flexibility in the context of the arguments as to its lawfulness. We add that it will also be necessary to take account of the reasons why the individual was excluded from the Refugee Convention. In some cases, the end point may never come.

The difficulty which we have with the decision which was reached in MS’s case, in particular in the most recent decision of 16^th January 2015, is that there is no evidence of any consideration of this aspect of the RLR policy having been considered. The best that Ms Anderson could do was to point to the sentence in paragraph 6 of the decision letter noting that MS remained a priority for removal owing to his exclusion from the Refugee Convention. In our view, that simply does not amount to any evidence of consideration of this aspect of the RLR policy. Further, we do not consider that the case of MS is one where it is so obvious that consideration of this aspect of the RLR policy is so unrealistic that no assessment should be made of it. It should be recalled that by the time of this decision MS had been in the United Kingdom for nearly 20 years. There will be cases when the suggestion that the end point has been reached is so hopeless that reasons are not required in relation to this aspect of the policy. However, this is not one of those cases (see also [150]). We are satisfied that consideration of the point raised in N and Kardi (set out above) should have been considered in his case and that there is no evidence that it was, and the failure to do so was a legal error, in that, it was a failure to apply the respondent’s RLR policy to his case.

Turning to the conditions which were imposed, we do not consider that, in the light of the legitimate purposes of the RLR policy which we have set out above, it was disproportionate to require MS to reside at a particular address subject to restrictions that he could not spend more than three consecutive nights away for ten nights away within a six month period without the prior written consent of the respondent. Bearing in mind the respondent’s desire to prioritise removal of MS, being aware of his whereabouts to the extent required by the condition is proportionate.

Similarly, requiring consent to work is not disproportionate as the Court of Appeal concluded in Kardi at paragraph 35 of Richard LJ’s judgment. It does not preclude obtaining work but rather requires the respondent’s approval to it bearing in mind MS’s exclusion from the Refugee Convention and the reasons for that exclusion. Further, we do not consider that requiring MS to report on a six monthly basis is in any way disproportionate.

Turning to the question of restrictions on study, whilst concerns were expressed by Richards LJ in paragraphs 41-44 of his judgment, those concerns were not as to the principle of such a condition but rather that at least specific application for consent would need to be carefully justified by the respondent if study was to be restricted. Unlike the position in Kardi, the condition imposed in MS’s case is not an absolute prohibition but rather one which requires him to seek consent. No explanation has been provided for why his application to take up a course as a domestic gas engineer should be precluded in order to fulfill the purposes of the RLR policy and we would have difficulty in accepting that it would be proportionate in the circumstances to prevent MS studying in order to obtain a skill which would potentially be as relevant to his life abroad as it would in the United Kingdom. It is important to note that the course of study about which he sought consent is vocational and of short duration.

We do not consider that the imposition of any of these conditions was precluded or affected by the s.55 duty. Whilst the time limited character of the leave granted will obviously engage a consideration of the best interests of the children, that was a matter which was expressly considered in particular in paragraphs 20 and 21 of the most recent decision in MS’s case which started from consideration of the children’s best interests and the extent to which they would be undermined by the uncertainty created by the grant of time limited leave but counter-balanced that with the public interest in the removal of MS from the United Kingdom. We can see nothing unlawful in that approach save that for the reasons set out above we remain concerned about the failure to engage with the possibility of an end point having been reached as contemplated by N and Kardi and the RLR policy itself in which the s.55 duty will also be at large.

It follows from what we have set out above that we do not consider that there is substance in the arguments raised in respect of delay and the change on 2 September 2011 of the respondent’s policy for excluded persons who cannot be removed from the United Kingdom from the DLR policy to the RLR policy in MS’s case. In any event additional to the matters which we have set out above we are not persuaded that we could grant MS relief on the basis of those submissions. Insofar as it could be concluded that the delays in his case were unlawful, that would entitle him to a fresh decision which has already occurred not once but twice since proceedings were commenced. We are satisfied that the imposition of the conditions which were imposed in his case were compliant with Article 8 and the s.55 duty. Our concern is in relation to the failure to consider whether or not the end point had been reached in his case. This is not on the basis that we consider that it has been reached in his case: that is a matter for the respondent to reach a decision based on the particular merits of his case and for her to explain. For example, she may be aware of details of the reasons for MS’s exclusion from the Refugee Convention not made known to us. She may have other reasons. Our point is that undertaking a review of the legality of the decision, we cannot be satisfied that the respondent has applied this aspect of the RLR policy in considering MS’s case.

The failure to apply the RLR policy is an error of law which would ordinarily lead to that decision being quashed and retaken. The difference in the present case is that, as a result of the time of the limited nature of the decision which was made, by the time our decision is published a further application for leave to remain will have been made by MS and the respondent will in any event be required to take a decision upon it. Therefore the grant of relief in the particular circumstances of this case would be otiose. We do not consider therefore that it is necessary in the circumstances of the case to quash a decision the effect of which has already expired and where a fresh decision will inevitably have to be taken. It will no doubt need to be taken bearing in mind the matters which we have raised in our adjudication on MS’s case.

We have also considered whether in the circumstances we should grant a declaration to the effect that the decision reached in MS’s case was unlawful as a result of the failures in the application of the policy that we have identified. However, declaratory relief is discretionary and in our view there are good reasons for exercising our discretion not to grant a declaration in this case. The decision in the present case is time-limited and indeed has expired during the course of this litigation. There will inevitably be a further decision to be made, and it will have to be made in the context of the conclusions that we have reached in our decision. That context will include in particular the views that we have expressed about the proper interpretation of the policy and the questions which will have to be addressed in applying it to the particular facts of MS’s case. In those circumstances there would be little purpose to the grant of a declaration. The reality here is that the effect of the lawful decision is now time-expired and the respondent will have to make a further decision taking account of the substance of this decision in any event.

The first tranche of issues raised in MBT’s case again relate to the delays involved in dealing with the application for further leave to remain in his case and the change on 2 September 2011 in the policy applicable to excluded persons who cannot be removed from the United Kingdom from the DLR policy to the RLR policy which occurred whilst his application was being considered. For the reasons which we have set out above in relation to the case of TN, we do not consider that an argument of this kind based on delay and the loss of a potential benefit or advantage as a result of such a change in policy during that delay are sustainable. We therefore do not consider that the arguments raised in MBT’s case on this basis are anymore viable than those which we have already dismissed in the case of MS. However, akin to the case of MS, we propose to offer some observations on the points in any event.

It will be recalled that MBT was first granted DLR for six months on 22^nd July 2004. Further periods were granted including on 17^th February 2009. The application with which we are concerned was made on 30^th July 2009 and then lost by the respondent. It was re-submitted on 25^th March 2011 and a decision made on 21^st August 2013. Again, for the purposes of considering delay causative of prejudice or disadvantage in MBT’s case, the focus must be upon the period which elapsed from the submission of the application to the alteration of the policy on 2^nd September 2011. In his case, that was a period of a little over two years and we would not regard that as a delay which could properly be characterised as unlawful. Indeed, at the time when the policy changed, he had not accrued ten years of DLR and, in any event, even if he had for the reasons which we have expressed above in the case of MS any grant of ILR would have been discretionary as opposed to an entitlement.

Ms Weston submitted that the respondent unlawfully failed to consider whether the DLR policy as opposed to the RLR policy should be applied at MBT. It was argued that it was necessary for the respondent to conduct a balancing exercise and consider proportionality to reach a lawful decision as to whether the DLR policy or the RLR policy should be applied to him. Ms Weston put the argument in terms of MBT having been unlawfully diverted from the DLR policy or an unlawful failure to consider whether he should be diverted from the RLR policy.

At the date of the decision in MBT's case (21^st August 2013), the DLR policy that was in place was the November 2012 DLR policy and the RLR policy in place was the RLR policy of 28^th May 2012. It was stated in the November 2012 DLR policy (fourth paragraph of the “Introduction”) that the RLR policy will apply unless exceptional circumstances justify divergence from the RLR policy. On its face, this may appear to contradict the following sections of the same policy quoted at [39] above:

However, in our view, when the RLR policy of 28^th May 2012 is considered alongside the November 2012 DLR policy, it is plain that the respondent's policy was that all excluded persons who could not be removed were to be dealt with under the RLR policy unless there were exceptional circumstances in which case they were to be diverted to the DLR policy. In other words, the respondent had what was in effect an overarching policy of applying the RLR policy and not diverting individuals from the RLR policy unless there were exceptional circumstances. That is a lawful and rational policy.

True it is that, once an individual has been diverted to the November 2012 DLR policy, the provisions of the November 2012 DLR policy as to what is to happen then was unclear, in that, whilst the “Introduction” envisaged that individuals may be diverted from the RLR policy to the DLR policy, section 3 said that the RLR policy applied and section 7 said that DLR must not be granted.

This problem has been rectified in the June 2014 DLR policy which replaced the November 2012 DLR policy. The fourth paragraph of the “Introduction” provides, as did the November 2012 DLR policy, that the RLR policy is to apply to excluded persons who cannot be removed unless there are exceptional circumstances to justify diverting them from the RLR policy. The June 2014 DLR policy then goes on to make specific provision, in section 2.5, for those excluded persons who cannot be removed due to Article 3 of the ECHR and who do not fall within the RLR policy, i.e. it makes specific provision for those persons who have been diverted from the RLR policy.

Considering the policies as a whole, it is plain, in our view, that the sentence: “Decision makers must apply the following guidance” in the section entitled: “Transitional Arrangements” in the November DLR 2012 and the June 2014 DLR policies only applies to those who fall under these polices, i.e. the DLR polices. They do not apply to individuals who are subject to the RLR policy and have not been diverted from it.

Thus, in our view, Ms Weston's submission, that the respondent unlawfully failed to consider whether the DLR policy as opposed to the RLR policy should be applied to MBT, is misconceived. It presupposes that MBT had some right to have the status quo of being considered under the DLR policy continue or that he had some right to be considered under the DLR policy, whereas the correct position is that the policy which applied to him was the RLR policy unless the respondent considered that there were exceptional circumstances to justify diverting him to the DLR policy. Accordingly, it is not the case that the respondent had to justify diverting MBT from the DLR policy. To the contrary, any diversion of MBT from the RLR policy had to be justified. It is implicit in the respondent’s decision to apply the RLR policy to MBT that she considered that there were no exceptional circumstances to justify diverting him from the RLR policy. She did not need to give reasons to apply her overarching policy (see R (Mohammed) v Secretary of State for the Home Department [2014] EWHC 98 (Admin), Lewis J), unless there are plainly exceptional circumstances which she may have overlooked capable of outweighing the public interest in the three purposes of the RLR policy.

Another argument advanced in MBT’s case is that the respondent erred in failing to apply the transitional arrangements in the DLR policy to him. However, as we have explained, the DLR policy was not applicable to him. Accordingly, the transitional arrangements did not apply to him.

Turning to the application of the policy in MBT’s case, and in particular whether the point had been reached where ILR should be granted, in his case in the most recent decision of 20^th March 2015 specific consideration was given to whether or not ILR should be granted in response to the application, at paragraphs 11-18 of the decision letter. In those paragraphs the provisions of the Immigration Rules are considered and applied in particular in the context of MBT’s conviction and five year sentence in France. We are satisfied therefore that in his case this dimension of the RLR policy has been considered and a decision reached which is fully reasoned and rational. In respect of this aspect of the case, Ms Weston drew attention to the respondent’s reply to the pre-action protocol letter in this case dated 25^th October 2013 in which it was suggested that MBT would not be considered at all in relation to ILR until he had completed ten years of limited leave. It is unclear to us why that observation was made but in any event whether or not it was correct for that observation to be made, consideration has now been given to the question of whether ILR should be granted to MBT. Ms Weston also pointed out the suggestion within that letter that the fact that MBT had not committed any criminal offences since arriving in the United Kingdom was irrelevant. In our view that observation was clearly erroneous in the light of Collins J’s observations cited above in respect of the potential relevance of the absence of further criminal convictions, but in any event it appears to have played no part in the most recent decision reached in MBT’s case.

Whilst Ms Weston made submissions in respect of the s.55 duty, that duty has been adverted to and applied in the most recent decision in MBT’s case in paragraphs 32-36 of the decision. The reasoning provided explains that the children’s best interests in the resolution of uncertainty in respect of MBT’s immigration status in the United Kingdom are outweighed by the public interest reasons for removing him from the United Kingdom. We are unpersuaded that that reasoning process is inconsistent or falls foul of the approach to be taken to the s.55 duty expressed in ZH. Thus, in our view, the policy in respect of the provision of time limited leave in MBT’s case has been lawfully applied subject to the consideration of the conditions imposed to which we now turn.

It will be recalled that in MBT’s case he was made the subject of a residence condition, the requirement that he notify the respondent prior to taking up or changing employment, that he report on a monthly basis and that he not enrol on a course of study without the respondent’s prior consent.

We have set out above the evidence which has been provided in the context of the case as to the effect of the imposition of the conditions on MBT. We recognise that the imposition of conditions in respect of employment has presented difficulties for MBT in securing a job and that that has undoubtedly placed him in a stressful position in relation to his financial circumstances. However, it has to be noted that the condition does not preclude MBT from working or obtaining a job and we are satisfied that the imposition of this condition along with the time limited nature of his leave is a proportionate response to his status as someone who is excluded from the protection of the Refugee Convention. We do not underestimate the difficulties that MBT may face in obtaining work but having considered his evidence those issues are multi-factorial and the condition and the limited nature of his leave are part but by no means all of the problem. We are not satisfied that this condition is disproportionate.

There is, further, evidence which MBT provides in relation to stress which he was caused by the reporting condition. However, the frequency of the reporting is at a low level and again bearing in mind the purpose of the RLR policy which we have identified as being legitimate the imposition of the condition is not disproportionate.

So far as the restriction on studies is concerned, on the evidence as it currently stands, there is little or no specific evidence of a course which MBT would wish to pursue. Therefore, on the evidence presently presented, we are not satisfied that the requirement for him to seek permission is disproportionate.

Furthermore, although MBT expresses his concern about the restrictions placed upon him in terms of not spending more than three consecutive nights away from his home or more than ten nights away in any rolling six month period, it is important to observe that that condition contains within it the opportunity for him to seek the consent of the respondent to spend longer away than this. Whilst that may, as he observes, constrain spontaneity, it does not necessarily involve a prohibition unless having notified the respondent she has good reason consonant with the policy for preventing it. In that respect, there is no evidence of any application having been made. We are unable to conclude that, in the particular circumstances of his case, the imposition of this condition is disproportionate.

It follows from what has been set out above that we do not consider that in the specific instance of MBT’s case and the evidence pertaining to it that the application of the RLR policy has been unlawful nor that there is any illegality in the conditions which have been imposed upon him.

Our conclusions are as follows: