Case No. UKUT-00414-(IAC)

provided that the Secretary of State is satisfied that the requirements in paragraph 276ADE(1) are met or, in respect of the requirements in paragraph 276ADE(1)(iv) and (v), were met in a previous application which led to a grant of limited leave to remain under this sub-paragraph. Such leave shall be given subject to a condition of no recourse to public funds unless the Secretary of State considers that the person should not be subject to such a condition.” As emphasised above, successful applications under 276ADE(1) lead to limited leave to remain, for 30 months, rather than indefinite leave to remain. 97. Paragraph 276DE makes provision for indefinite leave to remain on private life grounds. The central length-based criterion features in paragraph 276DE(a). It is that the applicant “has been in the UK with continuous leave on the grounds of private life for a period of at least 120 months…” Such leave would be that granted pursuant to a successful application under paragraph 276ADE(1). 98. Taken together, paragraphs 276ADE(1)(iii), BE(1) and DE mean that a person seeking indefinite leave to remain on the basis of long (initially unlawful) residence will need a total of 30 years’ residence; the first 20 years lead to a grant of leave under paragraph 276ADE(1)(iii) for a duration of 30 months. Four successive grants of leave in that capacity, giving a total of 120 months, or ten years, are required before a person becomes eligible for indefinite leave to remain. 99. It follows, therefore, that the temporal comparator under the rules for a “normal” migrant with long, initially unlawful, residence is 30 years residence for the acquisition of ILR. There are, of course, key distinctions between a person in a paragraph 276ADE(1)(iii) situation and those under the RL policy. Those to whom paragraph 276ADE(1)(iii) applies would not necessarily have had Article 3-based barriers to their return to their state of origin, meaning they had an element of choice about whether to have remain here during that time. By contrast, those subject to the RL policy do not have that choice, provided their purported inability to return to their state of origin has not been overstated (as had been the case in Babar ). On the other hand, those eligible for limited leave under 276ADE(1)(iii), or ILR under 276DE, will not present suitability concerns of the sort presented by this applicant, and instead must demonstrate positive good character, providing an additional facet to the comparison. As Underhill LJ noted, “I do not say that the two situations are analogous, but simply that that rule provides some context.” 100. We consider that the context provided by the comparison with paragraph 276ADE(1)(iii) does provide a degree of assistance. We take account of the fact that the applicant has accrued his residence in circumstances when he effectively had no choice but to live here. Nevertheless, the total length of the applicant’s residence has only just reached the threshold in relation to which someone with no suitability concerns would be entitled to only 30 months’ limited leave to remain. On any view, it is difficult to see how the length of the applicant’s residence, in isolation, could amount to exceptional or compelling circumstances necessitating a grant of indefinite leave to remain, given it falls short of the “normal” threshold by a significant margin. 101. The 2019 decision appeared to base its analysis of the “20 year” point on the Court of Appeal’s approach to the operation of the rule in MS (India) , assuming that after 20 years a “normal” migrant would be entitled to ILR. That was an incorrect comparison, although it was an incorrect comparison in the applicant’s favour. It meant that the decision assumed that the applicant had accrued residence of such a length that, under the Immigration Rules, would pave the way for ILR. The large disparity which, in fact, exists between the applicant’s length of residence and the criteria for ILR pursuant to 276ADE(1)(iii) taken with 276DE is stark: the applicant is ten years short of the length of residence required for indefinite leave to remain for a “normal” migrant under the rules. The 2019 decision’s assessment could have been adverse to the applicant to a greater extent but was not. Bearing in mind that the comparison with the approach taken by the Immigration Rules is capable of providing “some context”, we entirely agree with the spirit of the following extract of the refusal letter: “…a period considerably in excess of 20 years is likely to be required as compelling settlement in the case of a foreign criminal guilty of conduct of the type that falls within Article 1F of the Refugee Convention.” 102. We agree that, taken in isolation, the length of the applicant’s residence is incapable of amounting to a “compelling reason” to depart from the normal rule. It is necessary, of course, to view the reasons advanced on behalf of the applicant in the round, before reaching a considered view. A considerably longer period would be required, in light of the public interest, public protection and safe haven objectives of the RL policy. Gravity of conduct 103. The second consideration is the gravity of the conduct which led the applicant to be excluded from humanitarian protection: see [121] of MS (India) . 104. At page 5 of the decision, the respondent stated: “Your client is aware of the circumstances that surround his conviction in France on 19 January 1998, so they are not reiterated. The Secretary of State notes that your client has never provided a detailed account of those circumstances nor any object of evidence as to the intended or actual use to which the arms provided were put. It is a matter of record that this conviction for possession and transportation of arms connected to terrorist activities led to a sentence of 5 years’ imprisonment and your client was excluded from France. Your client entered the UK illegally so there is no objective record of your client’s entry to the UK. Your client has claimed no prior connection to the UK.” 105. The decision continued (see page 9): “The Court of Appeal indicated in MS (India)… at [121] that some forms of misconduct were so serious as to exclude an individual from ILR at any time. That could not be assumed in all cases since Article 1F covered the ‘ordinary’ criminal offending in addition to international crimes, so some offences may not be as serious in nature as others. Considering your client’s case, it is noted that this is not a case of ‘ordinary’ criminal offending of a less serious kind. Rather, your client’s conviction relates to involvement in international terrorism, which the Secretary of State regards as falling the higher end of the spectrum of seriousness of offending covered by the RLR policy. Your client’s case directly engages the public interest reflected in the ‘no safe haven’ policy. Therefore, your client’s offending is a factor that weighs heavily against the grant of ILR in all the circumstances.” 106. In our view, the applicant has engaged in extremely serious criminal offending in France. The offences involved weapons and a large conspiracy. The conduct had a cross-border element, in that the applicant committed the offences in a country other than that of his nationality, with 29 other Tunisian citizens, having entered France illegally. The applicant has never expressed remorse for his actions and has at every stage sought to deny or minimalise his involvement in the offences, refusing to take responsibility for the convictions. Although he has written in a statement prepared for these proceedings that he experienced difficulties with the lawyer appointed to represent him and was convicted on what we paraphrase as a “guilt by association” basis, he did not appeal against his conviction. We note his explanation for not having sought to appeal but note also that he has not provided any expert evidence to support his suggestion that he was at risk of his sentence being increased retrospectively. The conviction was imposed pursuant to a judicial procedure in a Member State of the European Union and a Contracting Party to the European Convention on Human Rights. There was no evidence before the respondent, and there is no evidence before us, which suggests that the proceedings were unfair, or that the applicant was prejudiced in anyway by the process adopted. The applicant has not said that he did not speak French, or that he was unable to understand the process taking place around him. Put simply, the applicant committed serious offences, in respect of which he continues to deny responsibility. 107. We reject the submissions of Ms Weston that the conduct was at the less serious end of the spectrum, thus demanding more lenient treatment by the respondent – and by us. Of course, it is possible to envisage more serious offending. It often is. We accept that this is not necessarily a case where it is “self-evident” that there could never be circumstances meriting a departure from the general rule that ILR is not granted: MS (India) at [117]. The applicant does not fall into the “obvious example” category outlined by Underhill LJ in these terms: “An obvious example would be where the migrant continues to pose a risk to national security or has been guilty of serious criminal conduct since their admission. Another is likely to be where there is good reason to believe that the barriers to removability may soon be lifted, as a result of political changes in the migrant's country of origin or otherwise. It is also important to bear in mind that if ILR is granted the Secretary of State loses the power to impose conditions, so that if there is a continuing need for such conditions because of the nature of the offending, ILR will not be appropriate.” We have not been informed, for example, that there is a current national security threat assessment in relation to the applicant. He is not recorded as having committed any criminal offences in this country. By contrast, the applicant is the father to four children and appears to have led a blemish-free life since his arrival here. 108. However, the applicant’s sentence of five years’ imprisonment, taken with the nature of his offences, is by no means at the lowest end of the spectrum of severity. Five years is a significant period. By way of comparative example, in section 72(2) of the Nationality, Immigration and Asylum Act 2002, Parliament has legislated to provide for a rebuttable presumption that those who have been convicted in this country of an offence of at least 2 years’ imprisonment are to be presumed to have been convicted of a “ particularly serious” crime, for the purposes of Article 33(2) of the Refugee Convention. The term “ particularly serious” contrasts with the description of offences leading to exclusion in Article 1F(b), which omits any suggestion of “particularly”, merely providing that the commission of “serious non-political” offences outside the country of refuge is sufficient to exclude persons from the scope of the Refugee Convention altogether. Given Parliament has deemed it appropriate to categorise “ particularly serious” offences as those resulting in the comparatively lesser sentence of two years, we consider the imposition of a sentence of five years to be more serious, by a considerable degree, taking account of Parliament’s approach when calibrating our own assessment. We ascribe limited weight to this comparison, as direct comparisons between different jurisdictions can be difficult, but nevertheless we do consider there to be some limited relevance in approaching matters in this way. 109. We also reject Ms Weston’s submission that the 2019 decision refused to engage in an analysis of the relative seriousness of the applicant’s criminal offences. In the extract from the 2019 decision we have quoted at paragraph 104, above, the respondent clearly states that the conduct was not “of a less serious kind”, and that the Secretary of State regarded it as “falling at the higher end of the spectrum of seriousness…” 110. Recalling, in particular, the public interest and safe haven objectives of the RL policy, we consider that it is entirely appropriate to withhold ILR when the nature of the applicant’s offending is taken into consideration. Positive conduct after offending 111. The third potentially relevant consideration is the extent to which the migrant has “changed” since the conduct in question: see MS (India) at [122]. Underhill LJ said: “…good evidence that the migrant [has] repudiated his or her past conduct and turned their lives round so as to become valuable members of society (to the extent that the restrictions on their leave may have allowed) should weigh in the necessary assessment, particularly where there has been some very positive contribution to society.” 112. The 2019 decision highlighted the approach of Babar to such positive factors not merely amounting to an absence of negative conduct. In a passage that is a little difficult to follow, the decision said that