RLR and Irrationality: Settlement for Sikh Separatist

MS (India) v Secretary of State for the Home Department [2016] EWHC 3162 (Admin) (09 December 2016)

This intriguing article 1F case concerns a Sikh separatist, or “terrorist” from India’s point of view, seeking a free Khalistān – literally “the land of the pure”. MS was disentitled from the protection conferred by the Refugee Convention 1951 because of his involvement in terrorism but his expulsion from the UK would result in his ECHR rights, pursuant to article 2 and article 3, being breached. The point was undisputed and the home office acknowledged the existence of a real risk that upon return to India, MS would be subjected to torture or inhuman treatment or might even be killed. The 44-year-old arrived in the UK more than 20 years ago and has three children who are all British citizens, as is his wife. He claimed asylum in 1995 which was refused in 1999. In 2000, his appeal was allowed by SIAC on human rights grounds in light of its conclusion that he would be persecuted upon return to India. However, his asylum claim fell to be excluded under article 1F because of his involvement in terrorism. Since his activities endured after entering the UK, he was held to have had endangered national security and was also ascertained as a constituting a continuing danger to it.

His presence in the UK was considered not to be conducive to the public good but coupled with the fact that he no longer posed a risk to national security and no possibility existed for him to be returned to India in the foreseeable future, his long residence meant that the refusal to grant him indefinite leave to remain (ILR) was irrational as far as Collins J could see. The background was that after initially receiving 12 months exceptional leave and subsequent grants of six monthly leave in June 2005 he applied for ILR/“settlement”. But for nine years long years, the home office inexplicably failed to act on the application. Consequently, in 2014, judicial review proceedings were initiated and finally triggered a response. The decision taken granted MS another six months’ leave but only with conditions and breaching these constituted a criminal offence.

Overview

Duration of restricted leave to remain (RLR) will in most instances be limited to six months and residence, employment and other conditions will be attached. The lawfulness of the restricted leave policy was upheld by the Upper Tribunal in its judgment of September 2015 in R (MS and MBT) (Excluded Persons: Restrictive Leave policy) (IJR) [2015] UKUT 539 (IAC) where MS challenged the home office’s actions along with a Tunisian. Subsequent to the disposal of those proceedings, MS was granted leave to remain for two years in February 2016 but the initial package of conditions was varied to residing at a fixed address, with a requirement not to spend more than three consecutive nights or more than 10 nights in any rolling six-month period away from that address without prior written consent from the home office.

Permission to appeal has been granted by the Court of Appeal against Dove J and Gill UTJ’s decision in MS and MBT and a hearing is scheduled in March 2017. Notably, in the present judgment Collins J said at para 4 that “the decision was correct” and he “would treat it with great respect”.

Despite its overall findings, the tribunal had nevertheless concluded that the policy was not properly applied to MS because of the home office’s failure to consider whether “the end point has been reached in his particular circumstances”, i.e. it needed to be considered – as exacted by the policy – whether the time had come to grant ILR or leave in excess of 6 months at a time.

Mr Justice Collins

The judicial review claim challenging the February 2016 decision invited the court to rule on three points. It was said that (i) to fail to grant ILR had become unreasonable (ii) the conditions imposed were wholly unnecessary and so unlawful and (iii) to require MS to obtain the home office’s consent in order to leave his address for more than specified periods was unlawful as it amounted to a restriction or imprisonment under the common law which was unauthorised by the general power to impose conditions provided by in section 3(1)(c) of the Immigration Act 1971. MS’s claim succeeded on all grounds and Collins J held that it would be irrational not to grant him ILR.

Despite his overall findings, Collins J said at para 16 that it was clearly “inexcusable” that MS was “not subject to any conditions” in the nine-year period that the home office failed to make a decision on his ILR application. No explanation had been provided. As of September 2011 the Policy Statement on Article 1F of the Refugee Convention Restricted Discretionary Leave applied a new, tighter and more stringent restricted leave policy which envisaged the imposition of numerous conditions.

Giving guidance on the policy’s application, the Asylum Policy Instruction (API, 23 January 2015) aims to accelerate the removal of individuals whose presence is not conducive to the public good by only granting them six months’ leave with a view to sending a “clear signal” that they are not welcome in the UK. Reference is made to paragraph 13(2)(b) of the Immigration (Leave to Enter and Remain Order) 2000 under which periods of leave of six months or less lapse if the holder exits the UK whereas longer periods of leave entitle the holder to readmission.

The API allows persons excluded from refugee status to apply for ILR on the basis of long residence, for example lawful residence in the UK for 10 years or more. Most cases will fall to be refused owing to the excluded individual’s conduct because the UK cannot become a sanctuary for serious criminals but case specific analysis is nevertheless appropriate.

The instruction (para 4.12.3) draws attention to Collins J’s own decision in R (N) v SSHD [2009] EWHC 1581 concerning the sole person convicted for playing a part in the hijacking of a plane to Stansted airport. There the court took the view that granting of six months leave was not at all unreasonable in principle but the authorities needed to keep an open mind because those who had become rehabilitated and had behaved themselves in the UK and made their lives here could be given ILR on the basis of at least 10 years’ residence. In that regard, decision-makers needed to analyse individual cases against the guidance imparted in N and evaluate whether or not they are comparable and whether the principles enunciated in N are applicable to the case under consideration.

Importantly, para 4.12 of the instruction recognises that it may be appropriate to grant a person ILR despite the proper maintenance of the view that it is not conducive to the public good that he or she be allowed to remain. There is further recognition that persons who have been lawfully present with leave to remain for 10 years may qualify for ILR. Notwithstanding that, such persons can be removed and their limited or indefinite leave can be terminated by a deportation order; subject, of course, to the appeals process and the invocation of human rights grounds.

In MS’s case, the decision maker’s approach contradicted the statement policy and was out of conformity with the restricted leave policy “which recognises the possibility of rehabilitation by lapse of time”. The decision did not account for the possibility that this case could be exceptional and it did not accept that the risk posed by MS was low. It was for decision-makers to decide on exceptional circumstances but it was equally necessary for them “to take account of all relevant matters and to show in a given case that that has been done”. The home office did not think that it amounted to unreasonableness to grant limited leave even if it was evidentially clear that that there could never be any chance of return within a person’s lifetime. Instead, the government argued that a softer message would internationally tarnish the UK’s reputation for accepting terrorists but it was clear to the court that:

19. … Such an approach is not only unreasonable but contrary to the RLR policy itself.

His Lordship also considered the effects of the Supreme Court’s decision in George [2014] 1 WLR 1831, see here. It concerned a serial offender and an important issue arose as to whether his ILR, which was revoked when it was decided to deport him, had been resurrected when the proposed deportation bid failed. The home office stressed the absence of legal symmetry in ILR coexisting with the status of someone whose presence has been deemed not to be conducive to the public good.

Yet Collins J noted that Lord Hughes did not foreclose the possibility of ILR being granted again and indeed George itself recognises that granting further ILR might become appropriate despite the lack of legal symmetry. The court held that granting limited leave served the sole purpose of retaining the opportunity to remove MS. However, Collins J equally found that:

28. … He has already had full opportunity to establish not only family life but private life. Thus there is no need for any of the conditions which can only be imposed if limited leave as opposed to indefinite leave is granted. It could be said that the nine years he was here without conditions points clearly in that direction.

His Lordship therefore concluded that if MS’s case was not one in which the time to grant ILR had come, it was difficult to see what circumstances would qualify. The court was satisfied that the exceptional circumstances warranting the grant of ILR were shown in this case.

Dealing with the issue of the conditions imposed, although no actual detention amounting to imprisonment had occurred it was still the case that the residence condition was unlawful. Placing reliance in Gedi [2016] 4 WLR 93, where the question was whether the imposition of a curfew was within the power conferred by paragraph 2(5) of Schedule 3 to the 1971 Act, MS submitted that the condition does amount to a constraint on his freedom of movement from his residence for the period during which the home office’s consent is required.

In Gedi, noting that Clerk and Lindsell on Torts (21st Edition) defines false imprisonment as the unlawful imposition of constraint on another’s freedom of movement from a particular place, Edis J held that imposing a curfew amounted to the tort of false imprisonment. Collins J was not persuaded that there was any actual detention on the facts before him such as to amount to imprisonment. He nevertheless found:

37. … that does not mean that the condition is lawful since it is a restriction on the claimant’s liberty to live his life and falls within the principle expounded by the court in Gedi.

Considering the case of Kardi [2014] EWCA Civ 934, Collins J expressed some doubts about what was said at para 29 of that case. He also noted that Richards J had confined his observations to the difficulty in establishing private life and had made no reference to family life, “no doubt for the very good reason that short periods of leave and conditions could not affect the ability to achieve a family life with a partner and children.”

As for sections 117A-117D of the Nationality, Immigration and Asylum Act 2002, section 117C did not apply to MS because he was not a foreign criminal. In Rhuppiah [2016] EWCA Civ 803, in considering the meaning of “precarious” in section 117B, Sales LJ found the word to convey an evaluative concept, opposite to the idea that someone could be regarded as a settled migrant for article 8 purposes. But he still said some immigrants without ILR could be considered “very settled indeed”, i.e. being in possession of a status incapable of properly being described as “precarious”.

Collins J noted that in contrast to private life, precarious presence does not diminish the weight to be attached to family life and he remarked: “The problem created by Sales LJ’s approach is to know where to draw the line.” However, the acquisition of settlement observably brings the state of precariousness to an end and means that the weight to be attached to private life and family life becomes the same as attaching to ILR.

Maintaining limited leave produces the effect of diminishing the weight to be ascribed to private life rights in considering proportionality. But that was only marginally important since MS was relying exclusively on his family life. His irremovability and family life meant he was “very settled” so that his presence here should not currently be regarded as precarious.

Collins J did not find any tort and only found unlawfulness. He said that the Queen’s Bench was the appropriate venue for pursuing the claim for damages, which was likely to be small, arising from the restraint condition.

Comment

The Restricted Leave Guidance (7 December 2016) claims to supersede Collins J’s judgment in N where he found that after 10 years of good conduct a person is able to put their offending behind them, would have made their life in the UK and should normally be allowed to settle. The home office says that the “judgment predates the restricted leave policy and is inconsistent with the general grounds for refusal in part 9 of the Immigration Rules.”

The travaux préparatoires recognises the purpose of article 1F to deny the benefits of refugee status to individuals who would otherwise qualify as refugees but remain undeserving of such benefits because “serious reasons” exist for considering that they committed heinous acts or serious common crimes. The provision, which aims to protect the integrity of asylum and needs to be used “scrupulously”, also ensures that such persons do not misuse rights protected by the Refugee Convention in order to avoid being held legally accountable for their acts.

Meddling with the politics of the Punjab ultimately cost Indian premier Indira Gandhi her life. Mounted by the Indian government in June 1984 against militant Sikh separatists embedded in the Golden Temple in Amritsar, Operation Blue Star was perceived by the Sikh community as cold-blooded mass murder in their most revered shrine. Soon after the sacrilegious military operation, Indira Gandhi’s own Sikh bodyguards murdered her by mowing her down in a hail of gunfire from their officially issued weapons.

Her assassination triggered widespread rioting and violence organised by the ruling Congress party left thousands of Sikhs dead nationally. Indeed, with nearly 3,000 killed in Delhi alone, many innocent Sikhs were simply rounded up – pulled out of commuter trains, off the streets etc – and publicly torched by bloodthirsty Hindu mobs seeking vengeance. Victims of the mass killings and their families have never received justice.

About mkp

Advocate High Courts of Pakistan
This entry was posted in Article 2, Article 3, Article 8, Asylum, Deportation, ECHR, Immigration Act 2014, India, Politics, Proportionality, Refugee Convention, RLR, Settlement, SIAC, Terrorism and tagged , , , , , , , , , . Bookmark the permalink.

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