Restricted Leave: Only Rare Cases are Suitable for Settlement

Babar v Secretary of State for the Home Department [2018] EWCA Civ 329 (01 March 2018)

Tanvir Babar used to be a Pakistani policeman. He worked in law enforcement for 17 years and was in charge of a squad of 20-30 personnel in the anti-narcotics force. The nature of his work routinely involved threatening and also beating  arrested persons. After entering the UK in 2000, he claimed asylum in January 2001. His claim was refused but he was still granted exceptional leave to remain because his removal would breach article 3 of the ECHR. His fudged immigration history meant that it was not possible to trace the full list of his immigration applications but it was known that in 2005 he applied for ILR outside the Immigration Rules which was refused three years later in October 2008 because he was excluded from the protection of the Refugee Convention 1951 under article 1F(a). The Home Office was of the view that his violent ways as a Pakistani policeman amounted to a pattern of widespread and systematic crimes against the civilian population which satisfied the definition of crimes against humanity. In September 2012, on the basis of 10 years’ lawful residence Babar made a new in-time application for ILR under paragraph 276B of the Immigration Rules. Babar had worked hard in the UK. He had not been a drain on public funds. He had very close family ties with his wife and children, who were at school and university and were settled in the UK.

Despite such compelling facts, allowing the government’s appeal, the Court of Appeal held that a powerful justification exists for denying settlement to those who had committed crimes against humanity. The court added that the UK should not be a sanctuary for those engaging in such crimes. Except in very exceptional circumstances, it would be a breach of the UK’s international obligations to be seen to give protection to unwelcome individuals such as Babar. It was held that a good work record, many years of blameless residence in the UK, and a pattern of close-knit family relationships were not unusual in a case such as Babar’s but these traits came nowhere near the truly exceptional standard required. The absences recorded on his application form for ILR showed that he had returned to Pakistan for holidays on five separate occasions – twice in 2009 and thrice in 2012 – and the authorities had shown no interest in him whatsoever. The new ILR application, prior to which Babar held restricted leave to remain, was refused in July 2014 because the decision-maker found a strong public interest in Babar’s removal owing to his serious criminal conduct.

The First Tier Tribunal

Although the decision-maker did not think that the strong public interest in Babar’s removal was outweighed by other considerations, the FTT had other ideas and it allowed Babar’s appeal because of its view that his behaviour was not so bad as to make it undesirable in the public interest to grant him ILR bearing in mind the positive factors in his favour and the impact of refusal upon his innocent family. Babar tried to deny that he had ever participated in beating suspects but the FTT did not accept this aspect of his evidence and judged that it could rely upon the 2006 interview record containing the admission that Babar had beaten suspects when interviewing them, and for a number of years he also controlled others who applied similar methods.

It was a mitigating factor that the police in Pakistan generally tend to be abusive to suspects. Babar was untruthful to claim that returning to Pakistan would result in ill-treatment. But on the other hand in his ILR application he had not tried to hide the details of his visits to Pakistan. Overall, the FTT did not wish to stick a label on Babar because he had “turned over a new leaf” and was an integral part of an extremely close-knit family together with his wife and daughters in the UK.

The Upper Tribunal

The decision in favour of granting ILR was upheld on appeal because the UT thought that the Home Office had failed to pinpoint any legal error in the FTT’s determination and was only quarrelling with the judge’s factual assessment. Conversely, the UT accepted that the FTT had erred by eliding to evaluate whether Babar’s conduct was tantamount to a crime against humanity. On its own initiative, the UT spotted that the Asylum Policy Instruction on Restricted Leave expressly stated that the executive operated a policy to resist the grant of relief in such cases where possible. Accordingly, the approach articulated by Collins J in R (N) [2009] EWHC 1581 was to be treated with a measure of caution.

Collins J had carefully distinguished those who had behaved well and had resided lengthily as suitable candidates for the grant of ILR on the condition that cases would be properly sifted and grants would be made on a case-by-case basis on the merits. Veering towards a generous reading of Collins J’s reasoning, the UT exceeded the parameters demarcated by the restricted leave instruction.

Acknowledging that the high test of “exceptional circumstances” applied when ILR was to be granted in “very rare” cases to those who fell to be excluded under article 1F, the UT decided that Babar fell within the class of persons who have nevertheless firmly entrenched themselves into the UK and have behaved in an so upright a manner that it would be right to treat their crimes as a thing of the past. Therefore, the UT found that on balance it was wrong to refuse ILR to Babar. His lengthy 14 years’ residence, his deeply rooted family life, the absence of any risk to the public and the secondary nature of his international crimes meant that blockading him from achieving settlement would be wrong because his was one of the very rare cases recognised as apposite for the grant of settlement under executive policy.

The Home Office Appeal

It was stressed that the appeal only related to the grant of ILR and was not about removing Babar which could be resisted on human rights grounds. The Home Office complained that the UT made three errors of law in its application of paragraph 276B. Firstly, it was not possible to say that there were “no reasons” which made it undesirable to grant ILR, and it was inappropriate for the judge to have regard to any other considerations once it was established that Babar had committed such serious offences.

Secondly, even if the other factors were relevant, the UT failed to give sufficient weight to the importance of ensuring that those who commit crimes against humanity should not be granted settlement in the UK. They should only be granted sufficient leave to remain to protect them from being removed contrary to their human rights. The UT thus failed to see that compelling circumstances were needed to override the very powerful public interest in refusing settlement so that Babar could be removed as soon as his removal could be achieved in accordance with his human rights.

Thirdly, if the UT did give proper weight to the very strong public interest in refusing ILR to an excluded person, the judge must have reached a decision which was perverse. The factors relied upon fell far short of the compelling circumstances necessary to justify granting settlement. Moreover, the UT failed to recognise that paragraph 276B(iii) requires that the application must not fall within the general grounds of refusal. Furthermore, since Babar had dishonestly claimed that he had a fear of returning to Pakistan he had come within the reach of paragraph 322(1A) which deals with cases where “false representations have been made or false documents or information have been submitted.” Therefore, Babar’s falsely claimed fear of return to Pakistan meant that he breached paragraph 276B(iii) and this alone was sufficient to defeat his ILR application.

The Court of Appeal

Sir Patrick Elias and Arden and Singh LJJ allowed the government’s appeal. Even though the court remained cautious about accepting the proposition that Babar could in no circumstances be granted ILR, there were too many mistakes in proceedings below which made the overall outcome incorrect.

(i) Only Exceptional Circumstances

Sir Patrick Elias said that even though paragraph 276B(ii) is poorly drafted and the words “there are no reasons why” are confusing, it still clearly envisages cases where, after consideration of all the factors, it would not be in the public interest to refuse ILR despite the presence of factors pointing the other way. A recent policy statement entitled Long Residence confirmed the court’s view that it was appropriate to interpret paragraph 276B(ii) in accordance with this published policy, given the construction most favourable to the applicant is to prevail under Pokhriyal [2013] EWCA Civ 1568.

In MS (India) [2017] EWCA Civ 1190, which neither tier of the tribunal had the benefit of considering, the Court of Appeal had considered the position of granting leave to remain to those who fell to be excluded. Underhill, Gloster and Simon LJJ held that the policy meant that ILR should only in exceptional circumstances be granted to migrants who were excluded but irremovable for human rights reasons. Following Underhill LJ’s approach, Sir Patrick Elias cast considerable doubt on Collins J’s proposition in N that once someone had been in the UK for 10 years, that would normally lead to the grant of ILR, rather than the true position that grants of such leave were indeed very exceptional or rare.

It was the view of the court that the path taken in N exacerbated the potential for confusion because Collins J seemed to have held that once someone had been in the UK for 10 years, that would pave the way for the grant of ILR, rather than the true position that the grant of ILR leave was very exceptional or rare in cases belonging to the present cohort. Moreover, the Asylum Policy Instruction on Restricted Leave unambiguously stated at para.1.2.2 that where possible the grant of leave should be restricted in such cases.

(ii) Weight: Crimes Against Humanity

Sir Patrick Elias rejected the idea that Babar’s commission of offences against humanity necessarily and inevitably resulted in the outcome that he could never be granted ILR. In his view, paragraph 276B does not preclude the possibility of all the relevant factors being considered to justify granting ILR where the circumstances are sufficiently compelling irrespective of the fact that very serious offences have been committed in the past. However, explaining that the UT failed to give proper weight to the very powerful justification for denying settlement to those who have committed crimes against humanity, the court held that:

33. … The UK should not be a safe haven for those who have committed such offences, and it would be a breach of the UK’s international obligations, and would undermine its international standing, to be seen to give protection to such individuals save in very exceptional circumstances.

The Asylum Policy Instruction on Restricted Leave identified that article 1F intends to protect the integrity of the asylum process. The provision has been designed to ensure that persons should not be allowed to avoid being returned to their country of origin where they may face accountability for their actions. The international rule of law demanded nothing less. The UT had recognised that it would be very rare to grant leave where an applicant had been excluded from the 1951 Convention. Yet the judge had failed to fully appreciate the circumstances had to be truly compelling before the grant of leave would be appropriate. Acknowledging Lady Hale’s analysis in AH (Sudan) [2007] UKHL 49 that the courts should to be slow to interfere with the tribunal’s fact-finding, the Court of Appeal held that:

35. … The fact that an applicant has a good work record, years of blameless residence in the UK, and close knit family relationships is by no means unusual in a case of this nature. If these considerations were sufficient to claim ILR for all those excluded from the Refugee Convention, it would significantly undermine the important public interest in the UK acting in accordance with its international obligations and maintaining its international reputation.

A truly exceptional standard was required for ILR to be granted to an excluded person. If the UT had given appropriate weight to that factor, then its assessment of where the public interest lay was perverse. The court therefore allowed the government’s appeal and declared that Babar had no entitlement to ILR.

Comment

This case makes interesting comparative reading with Ruhumuliza [2018] EWCA Civ 1178 where the Court of Appeal held by majority that the FTT had been entitled to conclude that a Hutu Rwandan bishop of the Anglican Church accused of crimes against humanity was entitled to ILR under paragraph 276B on the basis of his long residence in the UK. Ruhumuliza had been entitled to reject the decision-maker’s assertion that it was undesirable to grant him leave in the light of his conduct during the Rwandan genocide in the 1990s which would have excluded him from the 1951 Convention’s protection under article 1F.

Ruhumuliza had been the diocesan bishop of Kigali, the epicentre of widespread killing during the genocide. He arrived in the UK in 2004 to study theology and was granted leave to remain as a minister of religion until 2007. His asylum claim was decided against him in 2011 because he was excluded under article 1F because the decision-maker found serious reasons for considering that he had committed a crime against humanity. In relation to the killings in Shyogwe, one of the epicentres of carnage, the refusal stated: “It is alleged you distributed weapons to the killers.”

Notably, the decision-maker did not think that Ruhumuliza was directly involved in the killings. Rather the Home Office contended that he was complicit in the killings because he arranged for Tutsis to be excluded from refuge and deliberately did nothing to help those at risk, traits which made him a “genocide-denier” and an apologist for the Rwandan government. When Ruhumuliza applied for ILR his application was refused because of paragraph S-LTR.1.6. of Appendix FM whereby leave should not be granted in cases where the applicant’s presence in the UK is not conducive to the public good because his conduct, character, associations, or other reasons, make it undesirable to allow him to remain in the UK.

Oddly, the FTT decided Ruhumuliza’s appeal by taking government’s case “at its highest” by assuming the allegations made to be factually correct. Seeking forgiveness for his inaction, Ruhumuliza made a statement acknowledging his failings. He repented the fact that he was cowardly and weak and had failed to condemn the genocide. His statement made in 1996 after the genocide was half-hearted at best, but the FTT found no reason to doubt his acknowledgement of his failings and to repent. The UT upheld the FTT’s findings. In light of Babar and MS (India), the Home Office complained of the FTT’s failure to ascribe great weight to the public interest in not allowing the UK to become a safe haven for individuals who had committed crimes against humanity, to whom ILR should be granted only in exceptional circumstances.

The Court of Appeal followed Babar and held that the right test to adopt when applying public interest considerations to paragraph 276B adjudications was that there had to be compelling circumstances to justify a departure from the general rule, for those who fell to be excluded under article 1F, that the public interest in removal would be so strong that it would make granting ILR inappropriate. Underhill and Irwin LJJ held that the FTT would have expressed its decision differently in light of Babar and MS (India) but the judge would nonetheless arrive at the same conclusion. The case was “very unlike Babar” and Ruhumuliza did not merely rely on his respectable life in the UK. He had taken steps to assist the interests of reconciliation and to mitigate the consequences of his conduct. It was important to consider what had occurred in the intervening 20 years since the atrocities were committed. The FTT’s specialist opinion needed to be respected and the judge’s finding on Ruhumuliza’s suitability for ILR was indeed correct.

Interestingly, Singh LJ entered a note of dissent and said that it was a misfortune to disagree with Underhill and Irwin LJJ. His Lordship was of the view that a “real danger” existed that the FTT had never fully appreciated the true gravity of what Ruhumuliza might have done during the genocide. Singh LJ therefore found it appropriate to play it safe and allow the government’s appeal and remit the case to the FTT to enable it to make all the relevant findings of fact properly on the evidence.

It is hard to disagree with Singh LJ that the genie is well and truly out of the bottle if the FTT proceeds in an important case of this nature by unorthodoxly taking the decision-maker’s case “at its highest” without full understanding what that case is. The FTT had not fully acknowledged that in the 2011 refusal of asylum, Ruhumuliza had been accused of distributing weapons to the killers in Shyogwe. Similarly, it had also failed to apply the correct legal test articulated in MS (India) and Babar.

Overall, reading the decisions in Babar and Ruhumuliza in juxtaposition creates rampant confusion and expose a very sharp contrast. The situation presents an extreme dichotomy because it appears that a once brutal but reformed Pakistani policeman is unwelcome in the UK but that an allegedly “genocide-denying” Hutu bishop of the Church of England is welcome for settlement despite his possible silent support for the Rwandan genocide, one of the greatest crimes against humanity in history which left one million people dead in just one hundred days.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Appendix FM, Article 3, Article 8, Asylum, ECHR, False Statements, Immigration Rules, Integration, Pakistan, Proportionality, Public Interest, Refugee Convention, RLR, Settlement and tagged , , , , , , , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.