Case No. UKUT-00414-(IAC)

v Secretary of State for the Home Department [2017] UKSC 11 at [4] per Lord Reed: “The manner in which that discretion is exercised may be the subject of a policy, which may be expressed in guidance to the Secretary of State’s officials.” 34. In relation to cases where Article 8 of the ECHR is engaged, the Immigration Rules and the Secretary of State’s policies “are based on the Secretary of State’s policy as to how individual rights under Article 8 should be balanced against competing public interests” ( Agyarko at [46]). 35. Part 5A of the Nationality, Immigration and Asylum Act 2002 makes statutory provision for certain public interest considerations to be considered when a court or tribunal is concerned with the proportionality of a person’s removal under the ECHR. Of most relevance for present purposes is section 117B(6), which provides: “(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where— (a) the person has a genuine and subsisting parental relationship with a qualifying child, and (b) it would not be reasonable to expect the child to leave the United Kingdom.” 36. Section 117D(1) defines “qualifying child” to include a British citizen child, or a child who has resided continuously in the United Kingdom for seven years. Equality Act 2010 37. The Equality Act 2010 prohibits discrimination, as defined, in the conduct of certain functions. 38. Section 15 of the Equality Act defines what amounts to discrimination arising from disability, as defined in section 6, in these terms: “(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.” 39. Section 29 of the Act prohibits service providers from engaging in discrimination. Where relevant, it provides: “(1) A person (a “service-provider”) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service. (2) A service-provider (A) must not, in providing the service, discriminate against a person (B)— (a) as to the terms on which A provides the service to B; (b) by terminating the provision of the service to B; (c) by subjecting B to any other detriment. […] (6) A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation. (7) A duty to make reasonable adjustments applies to— (a) a service-provider (and see also section 55(7)); (b) a person who exercises a public function that is not the provision of a service to the public or a section of the public.” 40. Paragraph 16 of Schedule 3 to the Equality Act 2010 disapplies section 29 in relation to certain immigration functions carried out by service providers. Paragraph 16 provides: “(1) This paragraph applies in relation to disability discrimination. (2) Section 29 does not apply to— (a) a decision within sub-paragraph (3); (b) anything done for the purposes of or in pursuance of a decision within that sub-paragraph. (3) A decision is within this sub-paragraph if it is a decision (whether or not taken in accordance with immigration rules) to do any of the following on the ground that doing so is necessary for the public good— (a) to refuse entry clearance; (b) to refuse leave to enter or remain in the United Kingdom; (c) to cancel leave to enter or remain in the United Kingdom; (d) to vary leave to enter or remain in the United Kingdom; (e) to refuse an application to vary leave to enter or remain in the United Kingdom. (4) Section 29 does not apply to— (a) a decision taken, or guidance given, by the Secretary of State in connection with a decision within sub-paragraph (3); (b) a decision taken in accordance with guidance given by the Secretary of State in connection with a decision within that sub-paragraph. ” 41. Section 149 of the Act establishes the public sector equality duty, in these terms: “(1) A public authority must, in the exercise of its functions, have due regard to the need to— (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. (2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1). (3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to— (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low. (4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities. (5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to— (a) tackle prejudice, and (b) promote understanding. (6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act. (7) The relevant protected characteristics are— age; disability; gender reassignment; pregnancy and maternity; race; religion or belief; sex; sexual orientation. (8) A reference to conduct that is prohibited by or under this Act includes a reference to— (a) a breach of an equality clause or rule; (b) a breach of a non-discrimination rule. (9) Schedule 18 (exceptions) has effect.” The Restricted Leave policy 42. The RL policy addresses the practical gulf that arises between those excluded from the scope of the Refugee Convention under Article 1F, or refugees who are deprived of the protection of the non-refoulement principle, on the one hand, and any applicable ECHR-based restrictions on their removal, on the other. It confers legal – albeit restricted – status on such individuals and seeks to enable the respondent to achieve certain objectives set out in the policy. 43. The version of the RL policy under consideration in these proceedings was published on 25 May 2018. It was still in force at the date of both decisions. It opens in these terms: “The government’s policy is that foreign nationals who are not welcome in the UK because of their conduct will be deported or administratively removed from the UK, unless there is an [ sic ] European Convention on Human Rights (ECHR) barrier. This includes those whose conduct brings them within Article 1F or Article 33(2) of the Refugee Convention, or paragraph 339D of the Immigration Rules…” 44. The RL policy identifies the following objectives in denying the benefits of protection status and instead conferring a shorter period of restricted leave with specific conditions. The objectives include the public interest in maintaining the integrity of immigration control through the conferral of short periods of leave, accompanied by regular reporting conditions. The policy seeks to enable frequent review by the respondent of those subject to the policy with a view to facilitating their removal, should circumstances change such that the previous barriers to removal no longer apply. This ensures “close contact” is maintained with the individual concerned, and also gives a “clear signal” that the person concerned should not become “established” in this country. The repeated grants of only short periods of leave emphasise the intended impermanence of the residence of a person subject to the RL policy. The policy is intended to make it more difficult for such persons to put down roots here, or build up private or family life which, if established, may later present difficulties for the removal of the individual, if and when conditions in the destination country change such that removal becomes feasible. 45. The policy also states that it is for the purposes of public protection, adding that it is legitimate to impose conditions designed to ensure that the respondent is able to monitor where a person lives and works. In turn, this enables the respondent to prevent access by the individual to positions of influence or trust. 46. Finally, a further stated policy objective of the policy is to prevent the United Kingdom becoming a “safe haven” for those whose conduct merits their exclusion from refugee status. This supports the principle that war criminals and persons with a reprehensible past cannot establish a new life in this country. The policy is also said to support the United Kingdom’s broader international obligations and commitment to supporting the rule of law at the international level. The RL policy contends that it reinforces the message that the United Kingdom’s intention is to remove such individuals from the country as soon as possible. The target audience of this “message” is the international community of States as a whole. Indefinite leave to remain under the RL Policy 47. The RL policy addresses indefinite leave to remain in similar terms. The policy is that there will “almost always be public interest reasons not to grant ILR” (page 33). It notes, at page 6, that granting those subject to the policy indefinite leave to remain would “send a message” that there is no longer any public interest in deporting or removing them from the United Kingdom. That would be “wholly contrary” to the RL policy, as set out above. 48. The policy provides, at page 32, that there is no limit on how many times a person can be granted restricted leave, as long as they continue to fall within the scope of the policy. The policy states at page 33, with emphasis added: “Where a person falls within this policy because of behaviour described in Article 1F or Article 33(2) of the Refugee Convention or paragraph 339D of the Immigration Rules (whether or not the person is made a protection claim) there will almost always be public interest reasons not to grant ILR . This is because the government’s view is that such persons are not welcome in the UK, even if the adverse behaviour was committed a long time ago and the person has not committed any crimes in the UK. In most cases, a decision to grant ILR would undermine the intention of the restricted leave policy…” 49. It continues in these terms, on the same page: “Where a person applies for ILR outside the Immigration Rules, consideration must be given to all relevant factors, including all representations that have been submitted, to determine whether the application should be granted or refused. It will only be in exceptional circumstances that those within the scope of the restricted leave policy will ever be able to qualify for indefinite leave to remain outside the rules, and such exceptional circumstances are likely to be rare. Usually, given our international obligations to prevent the UK from becoming a safe haven for those who have committed very serious crimes, the conduct will mean that the application should be refused, but decisions must be taken on a case-by-case basis applying the principles set out above and the general grounds for refusal in part 9 of the Immigration Rules, alongside the section 55 duty…” 50. The conditions imposed on those subject to restricted leave is one of the means by which the policy objectives of the RL policy are said to be achieved. Once a person is granted indefinite leave to remain, the policy notes, the imposition of conditions is no longer possible. As such, granting indefinite leave to remain could lead to individuals obtaining employment or accessing positions of trust which are unsuitable, given the reasons they were initially subject to the restricted leave policy in the first place. The imposition of reporting conditions would no longer be possible, making it much harder for the respondent to keep track of those who would, circumstances permitting, otherwise be considered for removal. 51. Finally, indefinite leave to remain would be contrary to the United Kingdom’s international obligations and the need to support the international rule of law. The policy considers that granting ILR to such excluded persons would damage the United Kingdom’s international reputation and would be contrary to the expected and accepted approach of the international community as a whole to such persons. Thus, at page 32, the RL policy notes that there is no period of time which is likely automatically to be regarded as too long as being subject to the RL policy, although it notes that all such applications must be considered on a case-by-case basis. Even long periods of expiation, remorse and good behaviour are “neutrally balanced.” Compliance with the criminal law domestically is not a positive factor, but rather a minimum standard of behaviour expected of anyone present in the United Kingdom. The policy concludes on this point at page 33 stating that, “it will only be in exceptional circumstances that those within the scope of the restricted leave policy will ever be able to qualify for indefinite leave to remain… And such exceptional circumstances are likely to be rare.” There is no provision in the Immigration Rules to grant indefinite leave to remain to those subject to the RL policy; the policy envisages that any such grants will take place outside the rules.