Case No. UKUT-00414-(IAC)

v Secretary of State for the Home Department [2017] EWCA Civ 1190. The views of the Secretary of State attract weight, given her institutional competence on matters relating to the public interest and the United Kingdom’s reputation as a guardian of the international rule of law. (iii) To obtain indefinite leave to remain under the Immigration Rules on the basis of long (partially unlawful) residence in cases involving no suitability concerns, paragraph 276ADE(1)(iii), taken with paragraph 276DE, requires a total of 30 years’ residence. A person who satisfies paragraph 276ADE(1)(iii) following 20 years’ residence is merely entitled to 30 months’ limited leave to remain on the ten year route to settlement. (iv) Paragraph 16 of Schedule 3 to the Equality Act 2010 disapplies the prohibition against disability discrimination contained in section 29 of the Act in relation to a decision to grant restricted leave that is taken in connection with a decision to refuse an application for a more beneficial category of leave in the circumstances set out in paragraph 16(3). (v) To the extent that paragraph 16 of Schedule 3 to the Equality Act 2010 disapplies the prohibition against discrimination on grounds of disability, there is a corresponding modification to the public sector equality duty imposed on the Secretary of State by section 149 of the Act. JUDGMENT 1. This application for judicial review concerns the content and application of the respondent’s Restricted Leave policy (“the RL Policy”). The policy makes provision to grant short periods of limited leave to remain, with stringent conditions, to those who are, the policy states, “not welcome” in the United Kingdom and who would otherwise be deported or administratively removed, but due to “barriers” under the European Convention on Human Rights (“the ECHR”) they cannot be removed. The policy applies primarily to those excluded from the protection of the Refugee Convention, or otherwise not entitled to its protection, due to their commission of criminal or other reprehensible acts and, who, for similar reasons are debarred from Humanitarian Protection. Grants of so-called restricted leave are typically for 6 months at a time, and attract conditions intended to restrict the individual’s ability to establish a private life here, enable the respondent to monitor their presence and achieve a number of other objectives, to which we shall return. 2. The nature of the RL policy means that recipients of restricted leave are subject to regular and renewed grants of short periods of limited leave to remain, in a process which can continue for many years. The applicant in this case has contended for some time that he should be granted indefinite leave to remain, instead of merely being granted repeated periods of restricted leave. The central issue is whether it was unlawful for the respondent to refuse to grant indefinite leave to remain to him, following his lengthy residence pursuant to many repeated periods of initially discretionary, and then later restricted, limited leave, in light of his health, family life, and the claimed diminishing likelihood of him ever being removed to Tunisia. 3. The RL policy provides that indefinite leave to remain is only appropriate in “exceptional circumstances”, which, it states, are likely to be rare. It is the applicant’s case that his case is one of those rare, exceptional situations where he is entitled to indefinite leave to remain. 4. There are two decisions under challenge. The first is dated 31 August 2018 (“the 2018 decision”); the second, 22 July 2019 (“the 2019 decision”). Each refused to grant the applicant indefinite leave to remain, but instead conferred limited restricted leave upon him. 5. The 2019 decision was issued by the respondent the night before the substantive hearing concerning the 2018 decision was due to be heard on 23 July 2019. That necessitated an adjournment of that hearing. The Tribunal gave directions to the applicant to serve the additional grounds upon which he sought to challenge the 2019 decision. It was just and convenient to allow the 2019 decision to be challenged within the existing proceedings, rather than require the applicant to make a fresh application, which would potentially have resulted in a future substantive hearing being eclipsed (again) by a further grant of restricted leave, upon the expiry of that conferred by the 2019 decision. It was in those circumstances that the matter came before us sitting as a panel. Factual background 6. The applicant, MBT, is a citizen of Tunisia, born on 20 December 1966. He was detained and tortured by the Tunisian authorities for the membership of a political party in the late 1980s and early 1990s. The enduring adverse health impact that experience had on the applicant forms a significant part of his case for being granted indefinite leave to remain. It is common ground that the applicant cannot presently be removed to Tunisia due to the risk of further mistreatment at the hands of the authorities, although there is some dispute between the parties as to the prospects of that risk diminishing. 7. Following his release from detention, the applicant fled Tunisia in 1991, intending to claim asylum in Spain. He was unable to reach Spain because, on 19 January 1998 he was convicted in France, along with a number of other Tunisian citizens, of terrorism related offences, following a lengthy period on remand. These offences included the possession and transportation of unauthorised weapons, unlawful entry to France, forgery of an official document, and association with other malfaiteurs . For these offences, the applicant was sentenced to a period of five years’ imprisonment, most of which he had already served, with the consequence that he was released shortly after he was sentenced. He was also subject to an expulsion order from France, and a 10 year re-entry ban. The applicant maintains that he did not receive a fair trial in France. He contends that he did not appeal against his conviction, for to have done so could have exposed him to the jeopardy of having his sentence increased retrospectively. His case is that he left France without challenging the conviction on purely pragmatic grounds. We, of course, must proceed on the basis that he was validly convicted of these offences in France. 8. In May 1999, the applicant arrived in this country, clandestinely. He immediately claimed asylum. He declared his convictions in France. In July 2004, the respondent refused his claim for asylum, on the grounds that he was excluded from the Refugee Convention, under Article 1F(b) and (c) (respectively, the commission of a serious non-political crime outside the country of refuge, and being guilty of acts contrary to the purposes and principles of the United Nations). He was instead granted discretionary leave to remain, initially for a period of six months, under the relevant policy then in force. The RL policy was not in force at that stage. The first iteration of the RL policy came into force on 2 September 2011. 9. The applicant also contends that he has been convicted and sentenced in absentia in Tunisia of a range of further offences. Although there is no suggestion that those convictions form the basis of the respondent’s decision to exclude the applicant from the Refugee Convention, or indeed that they could be categorised as “safe” pursuant to ECHR minimum standards, it is the applicant’s case that the mere existence of such convictions provides a further reason why his return to Tunisia is not, and never will be, feasible. The politically motivated convictions are evidence of his persecution at the hands of the Tunisian state, he contends. They will not be overturned. He remains liable to serve lengthy periods of imprisonment in Tunisia, with the corresponding risk of repeated mistreatment in detention. 10. Following his initial grant of discretionary leave to remain, the applicant was granted further, repeated, periods of discretionary leave. However, there was a delay in the respondent’s consideration of the application (also for indefinite leave to remain) he submitted on 30 July 2009, which led him to bring judicial review proceedings to challenge the respondent’s inaction. That was in 2013. Those proceedings were settled by consent. The respondent took a decision on the application, granting the applicant his first period of restricted leave, for six months, on 21 August 2013. 11. The applicant experiences a range of debilitating medical conditions. He suffers from symptomatic epilepsy, and has around two seizures each week, during which he experiences a lack of muscle tone, falls to the floor, and can lose control of bodily functions. He has severe shoulder and back pain, which he experiences all the time. The shoulder pain is caused by a herniated disc in his cervical spine which dates to what has been described as a “very violent torture injury”. He can support himself when walking, but when doing so he has to hold his left arm very still in order to avoid jarring it and causing sudden pain to his left shoulder and neck. He has sciatic referral to the left leg, making walking and sitting painful and exhausting. He suffers from severe secondary headaches, which stem from numerous historical head injuries. His neck rotation is restricted to the left, even for short periods of time. He has high blood pressure. 12. The applicant has been diagnosed as suffering from severe post-traumatic stress disorder. He displays symptoms of flashbacks, intrusive memories, noise sensitivity, claustrophobia, dramatic nightmares, anxiety attacks, sleeplessness, and panic attacks. These are attributable to the major catastrophic trauma arising from the detention and torture he experienced in Tunisia, and the very severe ongoing stress and uncertainty as to the length of his residence and immigration status in this country. He displays symptoms of depressive disorder, experiencing pervasive feelings of despair, worthlessness, appetite and sleep disturbance, negative thoughts and very severe intrusive preoccupations, melancholic depressive ruminations, beliefs that he has destroyed other people’s lives, suicidal ideation, self-harm, and depressive hallucinations. These factors are set out in the report of Dr Bell, Consultant Psychiatrist, dated 18 April 2019, and letters dated 1 August 2017 from Lucy Bracken, a Registered Osteopath with the Helen Bamber Foundation, and 3 November 2017 from Mark Fish, a Senior Psychotherapist, also with the Helen Bamber Foundation. 13. In addition to the currently accepted Article 3 risk the applicant faces from the Tunisian authorities, he contends that his health conditions are such that his removal would be prevented by Article 3 ECHR in any event. He maintains that his private and family life in this country are such that his removal is now, and always will be, disproportionate under Articles 3 and 8 of the ECHR. Since his arrival in this country, he has not engaged in any conduct which suggests that he represents any form of ongoing security risk or threat. While he does not accept that he was fairly convicted in France, he highlights that, in any event, he has led a blameless life in this country. He has integrated. His children are British. He has lived here for 20 years. Earlier procedural history 14. The applicant has previously challenged earlier decisions of the respondent under the RL policy. In a decision handed down on 4 September 2015, this Tribunal (Dove J. and Upper Tribunal Judge Gill) dismissed an application for judicial review brought by the applicant in relation to an earlier decision of the respondent, dated 21 August 2013, to refuse to grant him indefinite leave to remain, granting him only a further period of restricted leave, with conditions. In the course of that judicial review application, the applicant also challenged the respondent’s RL policy itself. See R (on the application of MS) v Secretary of State for the Home Department (excluded persons: Restrictive Leave policy) IJR [2015] UKUT 00539 (IAC). The Upper Tribunal’s decision was considered by the Court of Appeal which, in a judgment dated 31 July 2017, dismissed the appeal, and found the RL policy as it then existed to be lawful: see MS (India) and MT (Tunisia) v Secretary of State for the Home Department [2017] EWCA Civ 1190, [2018] 1 WLR 389. The Court of Appeal made a number of observations about the circumstances when those subject to the RL policy may be entitled to indefinite leave to remain, to which we shall return. The decisions under challenge 15. The time-limited nature of restricted leave is such that the respondent regularly takes fresh decisions to confer a further period of restricted leave upon the expiry of the previous period. 16. The 2018 decision granted the applicant six months’ restricted leave from 31 August 2018, with conditions in the following terms: “a) You must reside at your current address and notify the Secretary of State to any change of address; b) You must not take up employment, paid or unpaid, or engage in any business or profession without the prior written consent from the Secretary of State; c) You must not enrol on a study course, either classroom-based or remote, without the prior written consent from the Secretary of State; and d) You must report to an immigration reporting centre every two months.” The 2018 decision refused the applicant’s application for indefinite leave to remain. It considered that, in view of the applicant’s exclusion from the Refugee Convention on the grounds of his involvement in terrorism in France, the public interest in his removal remained, and that he should not be allowed to settle here. 17. The applicant was granted limited permission to apply for judicial review on the papers by Upper Tribunal Judge Jackson to challenge the application of the RL policy in the 2018 decision. Permission was granted on two grounds: a. Ground 1 : the decision breaches article 8 ECHR, in that the respondent failed to undertake a sufficiently individual and particularised assessment of the relevant factors in the applicant’s case (in accordance with the guidance given by the Court of Appeal in MS (India) ) and the decision is a disproportionate interference with the private and family life of the applicant, his wife and British children in breach of article 8 ECHR and section 6 of the human rights act 1998; b. Ground 4 : the decision is irrational, in that the respondent took into account irrelevant matters and/or failed to take into account relevant matters. 18. Judge Jackson refused permission in relation to the following two grounds. The applicant has applied to renew his application for permission to bring judicial review proceedings on these grounds orally: a. Ground 2 : the decision breached sections 15 and 29 of the Equality Act 2010 (“the EA 2010”) (taken with or without the duty to make reasonable adjustments contained in section 20), and/or Article 14 of the ECHR, taken with Article 8, in that the respondent treated the applicant, his wife and children, less favourably on account of the applicant’s disability, or applied the RL policy in such a way as to impact the applicant disproportionately because of his disability; b. Ground 3 : the RL policy breached the public sector equality duty contained in section 149 of the EA 2010. 19. The 2019 decision was made in response to an application dated 26 February 2019 for indefinite leave to remain and the application was supported by additional written representations submitted in March and April. The applicant’s representations placed extensive reliance on the report of Dr Bell. That report considered the matters relating to the applicant’s mental health outlined in paragraph 12, above. The representations featured further and more detailed reasons as to why it was contended that the applicant would not be “removable”. 20. The 2019 decision refused to grant the applicant indefinite leave to remain, but instead granted him 12 months’ restricted leave, with conditions materially identical to those in the 2018 decision, with one distinction. The 2019 decision reduced the reporting requirements from every two months in the 2018 decision to “4 times per year i.e. every three months”. 21. The grounds upon which the applicant seeks permission to bring judicial review proceedings against the 2019 decision are based on those initially advanced against the 2018 decision, with two additional grounds. The manner in which the total six additional grounds have been set out in the applicant’s statement of facts and grounds and his skeleton argument could have been clearer, as the applicant did not set out separate and fresh grounds of challenge, but merely sought to adopt and apply (presumably with the necessary implied modifications) grounds 1 to 4 in relation to the 2018 decision, with two additional grounds specific to the 2019 decision. For ease of reference, having clarified the grounds with Ms Weston at the hearing, we will set out all six grounds in their entirety: a. Ground 5 : the respondent irrationally failed to take into account and address by way of adequate reasoning relevant matters, in particular the representations and material available to the respondent concerning the applicant’s removability, and the report of Dr Bell; b. Ground 6 : the respondent breached her duty of inquiry concerning the applicant’s risk on return; c. Ground 7 (original ground 1) : the decision breaches article 8 ECHR, in that the respondent failed to undertake a sufficiently individual and particularised assessment of the relevant factors in the applicant’s case (in accordance with the guidance given by the Court of Appeal in MS (India) ) and the decision is a disproportionate interference with the private and family life of the applicant, his wife and British children in breach of article 8 ECHR and section 6 of the human rights act 1998; d. Ground 8 (original ground 2) : the decision breached sections 15 and 29 of the Equality Act 2010 (“the EA 2010”) (taken with or without the duty to make reasonable adjustments contained in section 20), and/or Article 14 of the ECHR, taken with Article 8, in that the respondent treated the applicant, his wife and children, less favourably on account of the applicant’s disability, or applied the RL policy in such a way as to impact the applicant disproportionately because of his disability; e. Ground 9 (original ground 3) : the RL policy breached the public sector equality duty contained in section 149 of the EA 2010. f. Ground 10 (original ground 4) : the decision is irrational, in that the respondent took into account irrelevant matters and/or failed to take into account relevant matters. 22. Thus grounds 5 and 6 are new. Grounds 7 to 10 replicate the original grounds 1 to 4, applied to the 2019 decision. The only grounds upon which the applicant has permission to challenge the 2018 decision are grounds 1 and 4. He needs permission to pursue all remaining grounds. He requires permission on all his grounds to challenge the 2019 decision. As such, the hearing before us was a substantive hearing in relation to grounds 1 and 4 of the 2018 decision, combined with a rolled up hearing in relation to the remaining grounds and a rolled up hearing in relation to the 2019 decision. RELEVANT LAW AND POLICY Articles 1F and 33 of the Refugee Convention 23. Article 1F(b) and (c) of the Refugee Convention provides: “The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: […] (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.” 24. The focus of Article 1F of the Refugee Convention is the exclusion from its scope of those persons who – like this applicant – engaged in certain conduct before seeking refuge in the host state. When engaged, Article 1F prevents the individual concerned from being recognised as a refugee. 25. Article 33 of the Refugee Convention provides: “Prohibition of expulsion or return (‘ refoulement ’) 1. No Contracting State shall expel or return (‘ refouler ’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.” 26. By definition, the non-refoulement principle is only engaged in relation to those already recognised under the Convention as a refugee. Article 33(2) deprives existing refugees from the benefit of the non-refoulement principle in consequence to the presence of grounds to regard the refugee as posing a security risk to the host country, or as a result of criminal convictions which post-date their recognition as a refugee. 27. In practice, a person in relation to whom Article 33(2) is engaged would never be removed in circumstances which would lead to a contravention of the ECHR, even if they had been subject to a decision to revoke their refugee status. Similarly, persons in the United Kingdom who are excluded from the scope of the Refugee Convention under Article 1F would not be removed if to do so would place the United Kingdom in breach of its obligations under the ECHR. European Convention on Human Rights 28. Article 8 of the ECHR, Right to respect for private and family life , provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 29. Article 14 of the ECHR, Prohibition against discrimination, provides: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Domestic legal framework 30. Section 3 of the Immigration Act 1971 (“the 1971 Act”) makes provision for the control of the entry and duration of stay of those subject to immigration control. Section 3(1)(b) provides: “(1) Except as otherwise provided by or under this Act, where a person is not a British citizen… (b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period…” 31. Subsection (2) makes provision for the Secretary of State to make rules “as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom…” The Immigration Rules must be laid before, and approved by, Parliament. 32. Subsection (3) enables the Secretary of State to impose conditions on a grant of limited leave to remain. “(3) In the case of a limited leave to enter or remain in the United Kingdom,— (a) a person's leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions, but if the limit on its duration is removed, any conditions attached to the leave shall cease to apply; and (b) the limitation on and any conditions attached to a person's leave (whether imposed originally or on a variation) shall, if not superseded, apply also to any subsequent leave he may obtain after an absence from the United Kingdom within the period limited for the duration of the earlier leave.” 33. The Secretary of State also has a discretionary power under the 1971 Act to grant leave to enter or remain, even where leave would not be granted under the Immigration Rules. See the summary at Agyarko 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. DISCUSSION The 2018 decision 52. We can deal briefly with the 2018 decision. The challenge to it is academic. The decision conferred a period of restricted leave to remain which has since expired. Before us, Ms Weston was unable to identify any operative reasons why it was necessary, within the confines of the discretionary nature of judicial review, for us to consider the 2018 decision. She submitted that the 2019 decision repeats and thereby compounds the errors which contaminated the 2018 decision, but realistically accepted that, to the extent she sought to establish that the 2019 decision was unlawful or disproportionate, it would be possible to make the appropriate submissions by reference to that decision alone, without the need for substantive consideration of the 2018 decision in its own capacity. 53. We see no reason to entertain consideration of the 2018 decision in any further depth. The grounds in relation to which permission has been granted are now otiose, as the decision is no longer in force. 54. We refuse the application in relation to grounds 1 and 4. For the same reason, we refuse permission on grounds 2 and 3, in respect of which permission has not already been granted. The 2019 decision 55. The focus of Ms Weston’s challenge to the 2019 decision was not the proportionality of the conditions it imposed on the applicant’s restricted leave, such as the frequency of his reporting requirements, or even the length of the grant of restricted leave. Rather, the challenge was to the decision to not to grant indefinite leave to remain and to continue to subject the applicant to the terms of the RL policy. 56. The 2019 decision was in response to an application to the respondent submitted online on 26 February 2019, initial accompanying written representations dated 14 March 2019, and further representations and medical evidence dated 26 April 2019, including Dr Bell’s report. Collectively, the representations featured three elements. 57. Current barriers to removal : The 2019 application provided reasons why the applicant cannot – at the present time – be removed to Tunisia, on grounds of Article 3, 5 and 8 ECHR. The Article 3 grounds related to the risk of further detention and torture at the hands of the state, and the applicant’s present health conditions. The Article 5 risk (right to liberty and security) was connected to the applicant’s in absentia convictions in Tunisia. 58. Through her grant of restricted leave to the applicant, the respondent accepts that the applicant cannot presently be removed to Tunisia. Although the decision states that “all your client’s submissions and the evidence provided on his behalf have been considered…”, it does not state what, in the Secretary of State’s view, the operative factors were that led to the grant of restricted leave, rather than a removal decision. There is no indication, for example, that the respondent accepts that Article 8 provides a barrier to removal. The respondent has previously proceeded on the basis that the applicant is “irremovable” due to the Article 3 risk of further torture in Tunisia and has not indicated that she accepts the other claimed barriers to removal. 59. Duration of leave : The application contended that the requirements of Articles 3 and 8 of the ECHR were such that MBT was entitled to indefinite leave to remain. In reliance upon the report of Dr Bell and the letters from Mr Fish and Ms Bracken, the applicant stated that the mental anguish arising from his precarious immigration status and previous experiences was such that only indefinite leave to remain would be appropriate. Anything less, said the application, would continue to exacerbate MBT’s conditions. 60. The representations contended that Article 3 ECHR imposed a positive obligation on the United Kingdom to grant indefinite leave to remain, based on pursuant to Pretty v United Kingdom (2002) 35 EHRR 1. At [52], the Strasbourg Court held that naturally occurring physical or mental illnesses may give rise to certain obligations: “The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures , for which the authorities can be held responsible …” (emphasis added) The applicant contended that the term “expulsion or other measures” encompasses the duration of a grant of leave. Not granting indefinite leave to remain would be one of the “other measures” which exacerbates the pre-existing mental health conditions of the applicant, he contended. 61. Ms Weston did not pursue the representations that Article 3 conferred a right to ILR. 62. The applicant also contended that his right to “psychological integrity”, encompassed within Article 8 ECHR, required him to be granted indefinite leave to remain, relying on Bensaid v United Kingdom [2001] INLR 325 at [47]. 63. The application pointed out that MBT had resided in the United Kingdom for 20 years continuously, with leave for 15 years. He was now a 52 year old father of four. His ability to demonstrate positive rehabilitation was significantly limited, however, by his medical conditions, which largely prevented him from leaving his house due to the fear of seizures and other mobility issues. 64. MS (India) criteria : Finally concerning the duration of leave, the applicant contended that the criteria enunciated by the Court of Appeal in MS (India) and MT (Tunisia) meant that, under the common law, he was entitled to indefinite leave to remain. We will return to the Court of Appeal’s criteria in further depth shortly; in summary, they are the length of residence in the United Kingdom, the gravity of the conduct that led to expulsion, and the extent to which the applicant had changed following exclusion, plus other case-specific factors. 65. In the alternative, the letter contended that the applicant should be granted more than the standard period of six months’ leave, and that the reporting conditions should be relaxed, if not removed. The application made additional representations going to the conditions of restricted leave, if granted; given Ms Weston confined her submissions to the proportionality of the decision not to grant indefinite leave to remain, rather than the conditions attached to the current grant of restricted leave, it is not necessary to say any more about the representations as to conditions. Ground 7 – Article 8 ECHR – insufficiently particularised assessment 66. Ground 7 contends that the 2019 decision failed to comply with the requirements of Article 8 ECHR in that it did not feature a sufficiently individual, particularised and structured assessment of the factors applicable to that issue, in accordance with the guidance given by the Court of Appeal in MS (India) . 67. We must first determine whether Article 8 was engaged in relation to the decision not to grant indefinite leave to remain. The point is significant because, in the case of rights under the European Convention on Human Rights, our task would not be limited to a conventional public law rationality review of the respondent’s decision, but rather it would entail considering for ourselves what the requirements of the Convention are. 68. Plainly, the application of the RL policy is liable to interfere with the Article 8 rights of the individual concerned. The objectives of the policy are designed to prevent those subject to it from forming or developing private and/or family life. At the very least, the conditions imposed under the RL policy have the very real potential to have a significant impact on the fabric of the individual’s private life. So much was clear from [102] of the Court of Appeal’s judgment in MS (India) . 69. However, the question as to whether Article 8 – or other Convention rights – are engaged by the decision as to the form and duration of leave granted is a different matter. The Court of Appeal considered this issue at [124] of MS (India) , noting that the question was “not entirely straightforward.” Underhill LJ said that he did not believe “that the refusal of ILR as such engages Article 8 at all” (emphasis added). He drew an analogy between those – such as MBT – who have accrued long periods of residence while subject to the RL policy, and those who present the immigration authorities of a host state with a fait accompli following a long period of “tolerated” residence, as considered by the Grand Chamber of the European Court of Human Rights in