Case No. UKUT-00414-(IAC)

v Secretary of State for the Home Department [2018] EWCA Civ 329, the Court of Appeal considered an appeal against a decision of the Secretary of State to refuse to grant indefinite leave to remain under paragraph 276B of the Immigration Rules, which governs entitlement to indefinite leave to remain on the basis of ten years’ lawful residence. Mr Babar had been an officer in the Pakistani police. He and those under his command had beaten and threatened those they had detained in order to extract information from them. The US State Department had reported that the police in Pakistan were highly politicised and routinely and systematically used brutal investigation procedures, including torture, and engaged in extrajudicial killing; Mr Babar had been part of that apparatus. He applied for indefinite leave to remain in this country, following 14 years’ residence under the RL policy (and its predecessors), to which he was subject after the Secretary of State decided that his crimes against humanity in Pakistan excluded him from the scope of the Refugee Convention, but that he was not removeable. The Secretary of State subsequently took a decision to return Mr Babar to Pakistan, on the basis that he had been able to return on at least five occasions without difficulty and without experiencing the harm or mistreatment which had previously merited him being dealt with under the RL policy. The refusal of Mr Babar’s human rights claim generated a statutory right of appeal before the First-tier Tribunal (“the FTT”) in which a central issue was whether Mr Babar was entitled to ILR under rule 276B. The appellant was successful before the FTT and the Upper Tribunal. On the Secretary of State’s appeal to the Court of Appeal, at [32], Sir Patrick Elias held: “I do not accept that the commission of these offences against humanity necessarily and inevitably meant that Mr Babar could in no circumstances be granted ILR.… Paragraph 276B [of the Immigration Rules] envisages the possibility that even where such very serious offences have been committed in the past, all the relevant factors should be considered and the circumstances may be sufficiently compelling to justify granting ILR.” Mr Babar’s appeal was ultimately dismissed, pursuant to the Court of Appeal’s assessment that it would be proportionate, for the purposes of Article 8(2) of the Convention, for him to be returned to Pakistan. At no stage did the Court of Appeal hold that there was no statutory jurisdiction in a human rights appeal in relation to those elements of his case which concerned indefinite leave to remain, or that Article 8 was not engaged by the underlying decision of the Secretary of State. 78. We also recall that the Court of Appeal held at [124] of MS (India) that decisions under the RL policy do engage Article 8, principally in relation to the impact the conditions of restricted leave will have on the private and family life of the person concerned. We see no basis for there to be a “cap” on the issues that may be considered pursuant to an Article 8 analysis; we find no support for the proposition that certain, lesser considerations (e.g. conditions of leave) are capable of engaging Article 8, whereas far more fundamental questions, such as the availability of indefinite leave to remain, are never capable of engaging Article 8, in appropriate cases. That approach would not make sense, given the Court of Appeal in Kardi , Babar and MS (India) held, in the context of addressing proportionality under Article 8, that there would come a point when indefinite leave to remain would be the only reasonable option. 79. It is likely that, in most cases, a decision as to whether a person under the RL policy is entitled to indefinite leave to remain does not engage Article 8. Any interferences arising from the refusal of indefinite leave to remain would be likely to be minimal, and thus not engage Article 8. But that is not to say that there will not be case-specific scenarios where, due to the particular circumstances of the individual concerned, Article 8 is engaged by the decision to refuse to grant indefinite leave to remain, and to maintain the application of the RL policy. 80. We do not consider Jeunesse to be authority to the contrary, nor that the Court of Appeal in MS (India) precluded the possibility of us taking this approach. The Grand Chamber was not stipulating a principle that tolerated migrants would never be able to settle, in any circumstances. The Strasbourg Court, of course, noted in the extract from Jeunesse quoted by the Court of Appeal, that the substantive requirements of Article 8 did not “ automatically ” entail a corresponding entitlement to settlement for a tolerated but irregular migrant. It did not rule out the possibility that some migrants would be eventually be entitled to settle in cases where that was the only proportionate outcome. Nor did the Court of Appeal in MS (India) . 81. For these reasons, while the decision to grant indefinite leave to remain does not “ as such ” engage Article 8 of the ECHR, it is capable of doing so in an appropriate case. The import of Article 8 82. Having found that Article 8 is, in principle, capable of being engaged in relation to a decision to refuse to grant indefinite leave to remain, we return to the questions of whether (i) Article 8 is engaged in relation to the 2019 decision’s refusal to grant the applicant indefinite leave to remain; and (ii) if so, whether the decision to refuse to grant indefinite leave to remain was proportionate under Article 8(2)? 83. Cases such as the present are always likely to be inherently fact specific matters. We see little merit in attempting to articulate general propositions which could potentially go to the issue of whether Article 8 is engaged in all cases across the board. Rather, we shall focus on the facts of the present matter. We consider that the poor state of MBT’s mental and physical health, and the distinct and acute impact that the regular and repeated grants of restricted leave are having upon him, has the effect of engaging Article 8 in relation to the decision to refuse to grant him indefinite leave to remain. Dr Bell’s report suggests that the psychological impact of not having security of tenure in the United Kingdom exacerbates the long term and enduring impact of the applicant’s detention and torture experiences in Tunisia: see page 9 of the report, which highlights the impact of the ongoing stress and uncertainty experienced by the applicant on the underlying conditions triggered by the major catastrophic dramatic events which have taken place in his history. MBT’s health was not an issue before the Upper Tribunal previously, or the Court of Appeal in MS (India) . It is a new issue, with new implications. 84. The health dimension to this case must be considered in the context of the total length of the applicant’s residence, which is now over 20 years. On any view, this is a lengthy period. Combined with the applicant’s significant health problems, we consider that the length of the applicant’s residence are factors which lead to Article 8 being engaged in relation to the question of whether or not he is entitled to indefinite leave to remain. 85. Given we accept that Article 8 is engaged, the intensity of our review is greater. We must decide for ourselves what the requirements of the Convention are, in order to assess whether the Secretary of State reached a lawful decision to refuse to grant the applicant indefinite leave to remain. 86. We will analyse the applicant’s case through the prism of Lord Bingham’s five stage test in