Algerian Jihadist poised for ILR

G v Secretary of State for the Home Department [2016] EWHC 3232 (Admin) (16 December 2016)

An “Arab-Afghan” and a Salafist who joined the dreaded Fronte Islamique de Salut (FIS) in 1989, the claimant was an Algerian national who tried to enter the UK in 1995 using a fake French passport and claimed asylum when his deception was discovered. He feared persecution both in Pakistan, where he had lived, and in Algeria where his links to Afghanistan were bound to bring him to the authorities’ attention. When his asylum claim was refused in 1997, he appealed. Finding him to be an incredible witness, the adjudicator dismissed his appeal. He subsequently sought confirmation of his right of residence in the UK as the spouse of his French wife. This was not withheld but soon afterwards the home secretary certified that in his view G posed a clear risk to national security and was suspected of being a terrorist within the meaning of section 21 of the Anti-Terrorism, Crime and Security Act 2001. The grounds for certification stressed that G actively supported the Salafist Group for Call and Combat (GSPC), a proscribed organisation under the Terrorism Act 2000 with links to Osama Bin Laden’s network. G suffered from polio as a child. He has been in a wheelchair over the past decade.

G was also accused of radicalising young British Muslims by sponsoring them, on the instructions of Chechen fighters and other jihadists, to spend time overseas and train for jihad. He was detained pursuant to the 2001 Act and appealed to the Special Immigration Appeals Commission (SIAC). It was held in 2003 that G was involved in producing false documents. As a facilitator for jihad, he not only assisted Al Qaeda but also induced lost young minds to visit Afghanistan. After complex past proceedings and decision-making, G challenged a decision made in January 2016. Collins J held that “singularly poor administration” had occurred in G’s case, which while not unlawful on its own, meant that maintaining limited leave in order to impose conditions was unreasonable with the result that the decision-making in question needed to be quashed and reconsidered in light of his Lordship’s judgment.

Background

Collins J, who had also chaired the SIAC proceedings in 2003, found that G energetically helped GSPC and dismissed his appeal against the certification and the decision to make a deportation order. He was released on bail. Due to the decision in A and Others [2005] 2 AC 68, detention pursuant to the 2001 Act became unlawful. But a control order was made against G in March 2005 under the Prevention of Terrorism Act 2005.

The control order not only imposed a residence condition but it also prohibited the attendance of visitors and stopped G from meeting named persons without official permission. Employment was allowed but attending any educational course required consent from the home office. An attempt in 2005 to make a deportation order on conducive grounds led G to appeal to SIAC on grounds alleging violations of the ECHR and the Refugee Convention 1951. G was released on bail in 2005 and in 2007 his appeal was dismissed by SIAC because assurances provided by the Algerian government were deemed sufficient to surmount any risk of article 3 of the ECHR being breached. No findings were made on G’s refugee claim and the home office did not argue that article 1F was engaged.

In ongoing bail hearings Mitting J remarked in mid-2009 that the national security risk posed by G arose “from historic events and historic associations” and the risk of absconding was “as close to nil as one could get without actually arriving at a nil point”. In 2012, he said that “like all of the Algerian appellants” G’s case “is now a historic case” and giving judgment in 2013 dismissed other linked appeals but allowed G’s appeal because of his mental condition which would result in suicide in Algeria owing to improper risk management there.

G tried to commit suicide in 2005 after being diagnosed with a major depressive disorder with psychotic symptoms in 2003. His condition was exacerbated by stress and detention. Expert psychiatrists for both parties agreed that a real risk of suicide existed. Leave for six months was granted but it was under the restricted leave to remain (RLR) policy which was strange as G had not been excluded from the Refugee Convention under article 1F. He had been out of custody since 2005 and had four children from his marriage in 1999. Removal would therefore also damage his family life in addition to undermining his mental health.

Since 2013, G was permitted to remain in the UK under successive grants of limited leave but only subject to a package of onerous conditions which no doubt served as a reminder that there was a continuing intention to remove him as soon as possible.

Mr Justice Collins

Collins J indicated in MS (India) EWHC 3162 (Admin), discussed earlier, that the absence of any misbehaviour for at least 10 years and no prospects of removal in sight may tip the balance in favour of ILR being granted. G complained that the RLR policy did not apply to him; the conditions rooted in it were impermissible without a tailored policy for those who were irremovable but whose presence was not conducive to the public good.

G contended that the time had come for him to be granted indefinite leave to remain (ILR) or at least a 30-month period of discretionary leave (DL), which if permissible must be free from unnecessary and unreasonable conditions. Particularly, as in MS, a condition prohibiting G from leaving his address for more than three days or more than 10 days in any six months period was said to be unlawful because it amounted to impeding his liberty or even amounting to imprisonment within the meaning of false imprisonment in the common law tort. Gedi [2016] 4 WLR 93 made clear that the powers in the Immigration Act 1971 do not permit the condition and Collins J found it to be an unlawful “restraint”.

It was explained to the home office that it was incorrect to assume that G was caught by article 1F. Since he fell outside the scope of the restricted leave policy, it was appropriate to he grant him discretionary leave for 30 months. Relying on Pretty [2002] ECHR 427, he argued that in light of his mental health maintaining RLR and the restrictions accompanying it amounted to a breach of article 3.

Collins J held it was “nonsense” to disallow G, with a view to undercutting his UK roots, from undertaking a course at the Open University to develop algebraic thinking on the ground that it would place him in a position of trust or influence because it was designed for teachers. The course description made it open to everyone. In 2015, G began judicial review proceedings challenging the grant of limited leave and prohibitions on studying which led a fresh decision (again granting six months leave) to be made. It erroneously contented that he had been convicted “for threating (sic) criminal damage” and was jailed which (incorrectly) meant that he fell to be refused ILR under paragraph 322(1C)(ii) of the Immigration Rules because a period of 15 years had not elapsed since the sentence ended.

The “seriously flawed” 2015 decision letter accepted that he was outside the RLR policy and instead purported to grant leave outside the rules with the DL policy. The misunderstanding about criminality was unreasonably used to refuse DL for 30 months to justify a shorter grant of leave and overreach potential barriers to removal and ensure G’s speedy and safe return to Algeria. Since G had not committed any crimes in the UK, the discrepancy was covered up as “an administrative error” which Collins J found to be “unforgivable”.

The January 2016 decision said that neither the DL policy nor the RLR policy could accommodate G and since his removal was sought the best option was to grant him Leave Outside the Rules (LOTR). Since no other published policy applied to him, attempts were made to include him in the LOTR instruction. Medical reasons and other particularly telling reasons warrant the grant of DL whereas limited LOTR should be granted for a specified period for the necessary duration of stay required.

The absence of any conditions for the first six months of 2013, after SIAC allowed his appeal in January of that year, alleviated G’s depression and symptoms but coupled with grants of limited leave their reimposition shattered his “sense of security”. Similarly, the looming threat of expulsion also adversely affected his family. Reporting requirements were worrisome for G because of his fears of being detained while reporting and added to the paradoxical nature of his circumstances.

The mixture of tactics employed – ceaselessly intimating to remove him at the earliest opportunity by maintaining limited leave – “inevitably create stress and so adversely affect his mental state.” In April 2016, after being directed by the Court of Appeal, upon reconsideration SIAC allowed all the appeals because the Algerian authorities’ assurances had become unreliable. This made the possibility of expelling G even more remote.

G argued that “cogent evidence” was needed to justify his exclusion under article 1F and no such evidence existed in his case. Collins J admitted he was unable to remember every last detail of the evidence before him in closed SIAC proceedings in 2003. Since G was held to been involved in terrorist activities, his Lordship did not think that equating him with someone subject to the RLR policy was unreasonable especially if the grant of limited leave and conditions was lawful without any specific policy or parliamentary approval.

As seen earlier, the approach to be adopted in considering ILR in cases such the present one – involving individuals whose presence in the UK remains and will continue to remain not conducive to the public good – had only recently been detailed in MS (India). Drawing attention to his earlier approach, which constitutes the proper legal test, Collins J held:

28. … all will depend on whether the time has been reached when it is unreasonable to expect removal in a reasonable time and the individual has been here without any misbehaviour for at least 10 years. It can then be considered that he has put his past behind him.

On that analysis, G posed no present security risk. Mitting J had made that clear in 2012. And in light of his historic remarks seven years ago in 2009 regarding the “nil” risk of absconding, the argument that the reporting condition was justified on the ground that it sought to prevent absconding ignored “reality”. Similarly, official concerns flowing from the prospects of G’s employment leading him to abuse his position were also in direct conflict with SIAC’s clear finding that he no longer poses a threat.

The prohibitions on studying, designed to deter him from laying down roots in the UK, related to private life and were only marginally relevant. In the “highly improbable eventuality” of his removal, G would invoke his family life instead. Overall, the court found that “no justification” existed “for the imposition of any of the conditions” because he did not pose a risk to security. Moreover, no reasonable possibility existed for him to radicalise or influence others to commit unlawful acts. Nor was there a risk of him absconding because he had, through his marriage and family life, established roots in the UK and was therefore in the some position as MS (India).

Relying on Lumba [2011] UKSC 12, G submitted that the 2016 decision was “naked attempt to continue to apply” the RLR policy to someone outside its scope. Lumba concerned detention pending deportation and the clash between undisclosed executive policy and published policy. Drawing parallels with arrest and surveillance powers (regulated through codes of practice), Lord Dyson stressed the importance of immigration detention powers being transparently identified through formulated policy statements. The executive was fit to adopt a policy by lawfully exercising discretion conferred by statute. But in order to make relevant representations in relation to his situation the individual needed to know about the policy in place and had a “correlative right” in that regard.

To undercut Lumba, reliance was placed in George [2014] UKSC 28 to argue that in cases of foreign criminals no need existed to justify the imposition of conditions on limited leave because their presence was not conducive to the public good. However, George had no bearing on Lumba as the point requiring clarification was whether the inability to remove a criminal resurrected his past ILR which had been destroyed by a deportation order. Equally, in George, Lord Hughes kept an open view on the possibility of ILR being granted again and unambiguously recognised that granting further ILR might become appropriate despite the lack of legal symmetry between the coexistence of ILR with the status of a person whose presence is not conducive to the public good.

Collins J found that George does not demonstrate that no policy is needed where no detention occurs. Even though the court was unconvinced that the conditions, if justified, could not have been imposed without a policy, “to avoid any future difficulties” it was “sensible” for the executive to produce a policy which applies to all persons whose presence is not conducive to the public good but cannot be removed.

G’s “singularly poor administration” did not amount to unlawful treatment. But the prospects of removal remained “remote in the extreme” and the case’s history satisfied the court “there is now no reasonable need for limited leave”. These findings led Collins J to grant the application for judicial review and hold:

33. … While I am not persuaded that the effect of maintaining short leave and conditions is to breach article 3 of the ECHR, there can be no question that that is having an adverse effect on his mental health. Thus it must be clearly justified if it is to be regarded as reasonable. Overall, I have no doubt that the time has come when to maintain limited leave because of the supposed need for conditions is unreasonable.

Furthermore, the absence of a risk of absconding rendered the reporting requirements unreasonable. The decision letter needed to be quashed and the decision remade in light of this judgment.

Comment

Along with MS (India), the scope of this decision should extend well beyond only those who had historically posed a threat to national security because of their extremist views or terrorist proclivities.

The test formulated by the court – that if the individual can be considered to have put his past behind him if he has been in the UK without any misbehaviour for at least 10 years – may even have some potential to help various species of foreign criminals who are victims of home office negligence and whose activities have been unlawfully restricted like G and MS under the falsity of preventing them from establishing roots in the UK.

About mkp

Advocate High Courts of Pakistan
This entry was posted in Algeria, Article 3, Article 8, Asylum, Deportation, ECHR, Employment, Immigration Rules, Politics, RLR, Settlement, SIAC, Terrorism, UKSC and tagged , , , , , , , , , . Bookmark the permalink.

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