Case No. UKUT-00414-(IAC)

, Also, consideration has been given to the extent that there is evidence that the period of leave granted may affect your client’s family and family life (taking account of the findings of the Upper Tribunal and the Court of Appeal on the inherent limitations on this where a family can continue to live together as a family unit for the duration of the leave and the grant does not affect the childrens’ [ sic ] immigration status in the United Kingdom.” 135. The letter continued: “In light of the specific evidence in your client’s case and in his particular circumstances, it has been decided to depart from the normal period of 6 months’ leave to remain to grant 12 months’ leave to remain with reduced reporting. This balances your client’s private interests against the public interest and takes a proportionate and reasonable approach bearing in mind that there is no evidence capable of directly calibrating the period of leave with any particular inevitable effect on your client’s mental or physical health…” 136. It is plainly the case that the respondent considered the medical materials and adjusted her normal approach to granting restricted leave accordingly. The standard length of leave was doubled, and the reporting requirements were relaxed to four times annually, down from every other month. It is clear that the respondent paid full regard to the contents of the Bell report when addressing the length of restricted leave. 137. It is necessary to read the decision as a whole. Ms Weston’s submission is essentially one of disagreement with the weight ascribed by the respondent to the medical evidence. Rather than it being relevant to the length of restricted leave, or the conditions attached to it, Ms Weston’s submission is that the medical evidence was such that it was disproportionate for the respondent not to grant ILR. Put another way, greater weight should have been ascribed to the medical evidence, she contends. 138. The respondent’s views as to where the public interest lies in the proportionality or otherwise of whether the applicant is entitled to ILR attract great weight. See MS (India) at [124]: “The [Secretary of State’s] assessment is also likely to involve aspects on which particular respect must be paid to the judgement of the Secretary of State. In all cases involving terrorist offences full weight must be accorded to her view that it is not in the public interest to allow this country to become a safe haven for terrorists and to any other, more specific, aspects of the case requiring a judgement on matters of national security or foreign relations. Particular respect should likewise be paid to any view she may express as to the public acceptability of the grant of ILR to migrants who have committed certain kinds of offending.” 139. In light of these considerations, we must consider for ourselves whether the respondent’s analysis of the best interests of the children, and the medical evidence was proportionate. 140. While this is a human rights decision, necessitating us deciding for ourselves where we consider the proportionality balance to lie, it is nevertheless important for us to take into account the respondent’s views. That is not to say – as the Court of Appeal rejected in MS (India) at [119] – that the Secretary of State’s views are “unchallengeable”. Rather it is to ascribe the weight that is appropriate to the Secretary of State’s views concerning the public interest reflected in the objectives of the RL policy. Taking into consideration the institutional competence of the Secretary of State to make finely balanced judgements about the public interest and the United Kingdom’s reputation as a guardian of the international rule of law, we consider that the approach of the 2019 decision to the medical evidence is lawful, for the following reasons. There is necessarily a degree of overlap with our reasoning in relation to the other MS (India) criteria. 141. The applicant stands convicted of very serious offences in France. The objectives pursued by the RL policy are legitimate, as we have set out above. The best interests of the children only marginally favour the applicant being granted ILR; their interests are reflected primarily in the non-removal, for the time being, of the applicant. Considered alongside the factors we have dealt with under our analysis of the first three MS (India) criteria, we conclude that the interferences with the applicant’s private and family life are proportionate. 142. Although the Bell report contends that the applicant should receive ILR to pave his way to recovery, Dr Bell candidly accepts at page 12 that that would not lead to immediate results. It would, writes Dr Bell, “create the preconditions for him to be able to begin to improve …” (emphasis added), but other “protective factors” would be required. Such factors, he states, could include the ability for the applicant “actively to parent his children”, to support them financially, and to be a good example as the head of his family. As we have already stated, the applicant is able to parent his children at the moment (indeed, Ms Weston’s reliance on section 117B(6) of the Nationality, Immigration and Asylum Act 2002 must be predicated on the existence of a genuine and subsisting parental relationship between the applicant and his children). He can work, with the permission of the Secretary of State (although we note that the Department for Work and Pensions has assessed him to be unfit to work, there is no suggestion that that assessment is founded upon health conditions said to be attributable to the ILR issue). He enjoys recourse to public funds. It is not clear, therefore, why Dr Bell writes that “none of this [being a parent, working to support his family, being a good example as head of the family] is currently within his reach…” when the conditions of the applicant’s restricted leave permit all such activities, and the applicant’s own case under section 117B(6) is predicated on the existence of a genuine and subsisting parental relationship with his children. Although we accept that a grant of ILR would provide the applicant with the certainty he seeks, it is difficult to see how the absence of ILR stands in the way of the applicant engaging in some of the very activities which he is currently able to undertake. 143. As Ms Anderson points out, the Bell report pre-dates the 2019 decision, and had been drafted following many years of repeated 6 month grants of leave, where there had never been any prospect of a longer period of limited leave. We do not have “Bell II”, as Ms Anderson puts it, analysing whether there has been any qualitative change in the applicant’s mental health conditions following the conferral of 12 months’ restricted leave and the relaxation of reporting requirements. The applicant’s reliance on the Bell report to support the contention that the exceptional (in the sense of being an exception to the normal rule) grant of 12 months’ limited leave to remain was at odds with the requirements of Article 8 features, therefore, an element of speculation. 144. Ms Weston also submits that the statement in the 2019 decision that “there is no evidence capable of directly calibrating the period of leave with any particular inevitable effect…” is plainly wrong, in light of Dr Bell’s opinion that only indefinite leave to remain would pave the way for the applicant to engage with his mental health. With respect, that submission misreads this part of the letter. The above statement features in the context of discussing lengths of limited leave to remain (“the period of leave…”), rather than the binary issue of whether ILR should be granted or not. The quoted extract from the decision highlighted the absence of medical evidence concerning specific periods of limited leave, for example concerning the impact of six months, or twelve months, or some other period being granted. The decision was correct to say that there was no medical evidence going to specific periods of limited leave to remain; the thrust of the evidence was that ILR should be granted, on medical grounds, rather than a period of limited, restricted leave. 145. In our judgment, therefore, the Bell report viewed as a whole provides at best only muted support for the contention that ILR is the only means by which the applicant is able to recover. Conclusion on Article 8 146. In light of the above analysis, having considered the materials that were before the respondent for ourselves, and with anxious scrutiny, we find that that was an approach entirely consistent with the requirements of Article 8, for the reasons given. The Secretary of State was entitled, on the basis of the materials before her, to conclude that the time had not yet come when the only proportionate or reasonable response to the applicant’s mental health conditions, length of residence, and the other factors set out above, was to grant ILR. 147. We grant permission on ground 7 but refuse the application for judicial review on this ground. Grounds 5 and 10 – irrationality 148. In light of our conclusions concerning Article 8, we can deal with grounds 5 and 10, irrationality, in brief terms. As we have set out, she took extensive account of Dr Bell’s report, and the remaining representations, and reached a decision which – having considered the matter for ourselves – was entirely consistent with the approach we would have taken. The respondent was entitled to ascribe great significance to the fact of, and known circumstances relating to, the applicant’s conviction. She did not fetter her discretion, as Ms Weston submits, but engaged in an assessment of the evidence and submissions she had received that was open to her on the facts. 149. Contrary to the submissions of Ms Weston, the applicant has had every opportunity to evidence change on his part. The 2019 decision makes clear that the Secretary of State does not expect from the applicant progress that would not be possible to evidence or demonstrate, given the health constraints to which he is subject. It remains the case that the applicant has never expressed remorse for his offences, or demonstrated any understanding of how serious they were, or their potential consequences. His general renouncement of terrorism attracts little weight given his failure to take responsibility for the very serious terrorist convictions he received in France. The applicant has had many years to demonstrate that he has begun to rehabilitate, but defiantly refuses to even contemplate doing so. 150. Nor can it be said that the absence of a current national security threat posed by the applicant renders the respondent’s decision irrational. Although the Court of Appeal observed in MS (India) at [118] that the applicant was not said to pose a current national security threat, it did not consider that to be a determinative factor in maintaining the decision not to grant him ILR. Indeed, it was precisely because the applicant did not pose a current threat to national security that the Court of Appeal set out the three considerations relevant to the question of ILR. Were it the case that the applicant did pose a national security threat, then the observations at [117] of MS would have applied, namely: “…there will be some classes of case where it is self-evident that there are no compelling circumstances justifying a departure from the general rule. An obvious example would be where the migrant continues to pose a risk to national security…” The applicant was not in that category, thus the analysis conducted by the respondent was required. 151. The absence of a contemporary national security threat merely means that a case-specific assessment is needed to ascertain whether there are exceptional or compelling circumstances meriting a departure from the normal approach. It does not, as is the logical consequence of Ms Weston’s submissions, mean that the only rational outcome would be for ILR to be granted. If there were a contemporary national security threat, it would not be necessary to engage in any of the MS (India) analysis at [120] to [123]. By definition, the criteria at [120] to [123] are only engaged where there is not a national security threat. The respondent engaged in precisely the correct assessment, as we have demonstrated in our analysis of the Article 8 issue. 152. Ms Weston submitted that the applicant had been caught by surprise by the reference at page 11 of the 2019 decision to there being, “good reason to consider that the evolving position on Article 3 ECHR claims and removability to Tunisia requires ongoing review.” The applicant had had no advance warning that the Secretary of State was in the process of forming the view that conditions pertaining to his removability were improving, she contends. She further submits that the respondent has not particularised what she meant by her assertions. 153. We do not consider that the respondent has a duty to put the applicant on notice of her evolving assessment of the likelihood of change in Tunisia, given this is a decision which concerns not the applicant’s removal, but a further – and longer – period of him being placed on restricted leave. His removal is not presently envisaged. When the applicant’s removal becomes a realistic prospect, we expect the respondent to engage with him to that end, giving him the opportunity to make representations ahead of a decision being taken. But that is not an issue in these proceedings. We accept that the 2019 decision could have been clearer, by explaining what the “good reason” was, but in isolation, that does not render the decision unlawful, primarily because removal is not within scope. 154. The respondent took account of all relevant factors, within the broad margin of appreciation she enjoys. In doing so, she reached an outcome consistent with her policy, which she properly applied, reaching a conclusion that was open to her on the facts. 155. There is no merit to these grounds for judicial review and we refuse permission on those grounds.