Case No. UKUT-00414-(IAC)

v Netherlands (2014) 60 EHRR 17. 70. In Jeunesse , the Grand Chamber considered the Article 8 impact of a host state tolerating the presence of unlawful migrants pending a decision on an application for a residence permit, an appeal, or while awaiting some other procedural event. It considered whether the family life and private life roots that such migrants will inevitably have formed while awaiting progress on their case could ever be such that the host state would be obliged by Article 8 to enable the migrants to settle. The Court held that there was no such automatic right. It said at [103] that the fact that such persons would have formed integrating links of that sort: “…does not automatically entail that the authorities of the Contracting State concerned are, as a result, under an obligation pursuant to Article 8 of the Convention to allow him or her to settle in their country. In a similar vein, confronting the authorities of the host country with family life as a fait accompli does not entail that those authorities are, as a result, under an obligation pursuant to Article 8 of the Convention to allow the applicant to settle in the country. The Court has previously held that, in general, persons in that situation have no entitlement to expect that a right of residence will be conferred upon them…” 71. Underhill LJ considered that those residing in this country pursuant to the RL policy were in an analogous position to the applicant in Jeunesse presenting a fait accompli ; those under the RL policy were likely to have accrued residence in defiance of the wishes (if not the international obligations under Article 3 ECHR) of the United Kingdom. Their presence was being tolerated until removal would be possible. While awaiting the possibility of lawful removal to arise, it would not be open for such persons to rely on Article 8 of the Convention for an automatic right to settle in the United Kingdom, based upon the length of residence that had elapsed while their presence was being reluctantly tolerated. 72. Underhill LJ added, again at [124], that it was clear that decisions under the RL policy did not consist solely in the territory of the binary issue of whether indefinite leave to remain would be granted, or not. The impact of the conditions imposed by the RL policy had the potential to interfere with, and thereby engage, the Article 8 family and private life rights of those subject to the policy, and their families. He noted that any such interferences would necessarily be of a “limited character”, given that those subject to the RL policy were still able to form relationships, work, live, and engage in life in other material respects. 73. Against that background, the question arises as to what Underhill LJ meant at [124] when he said that the refusal of ILR “ as such ” does not engage Article 8? 74. In the course of addressing the potential impact of Article 8 on a decision to grant indefinite leave to remain, Underhill LJ recalled that he had already quoted extensively from the decision of the Upper Tribunal under consideration in that appeal, at [108] to [109]. At [129] of the Upper Tribunal’s judgment (quoted as [130] by the Court of Appeal), the panel said: “…the decision to grant… six months leave to remain does not interfere with the development of family life in principle . At its height, it may have an impact on the quality of family life bearing in mind the potential insecurity which being granted successive periods of time limited leave may create. However, bearing in mind the objective of retaining the opportunity to remove someone excluded from the refugee Convention by virtue of Article 1F at the earliest opportunity, the provision of such time limited leave is not in and of itself disproportionate insofar as it may interfere with the quality of the development of article 8 rights and insofar as it is subject to the overall governing consideration that there may come a point in time when the failure to grant ILR will be unreasonable bearing in mind the particular circumstances of the case .” (Emphasis added) At [109], Underhill LJ said, “I have quoted that passage in full because I entirely agree with it.” 75. In our judgment, by using the term “as such” Underhill LJ meant that the refusal of ILR cannot automatically , and is usually unlikely to, engage Article 8. Read as a whole, the Court of Appeal’s judgment did not rule out the possibility that Article 8 is capable of being engaged by a decision to refuse indefinite leave to remain. So much was clear from the extensive quotation with approval of this Tribunal’s judgment in MS (India) , at [108], which said that the proportionality of the extent of, and conditions attached to, restricted leave is subject to the “ overall governing consideration ” that there may come a point in time when it is “unreasonable” bearing in mind the particular circumstances of the case to refuse to grant indefinite leave to remain 76. In adopting that approach, Underhill LJ was entirely consistent with that of Richards LJ in