Case No. UKUT-00414-(IAC)

[2004] UKHL 27 at [17]: (1) Will the proposed [refusal of indefinite leave to remain] be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? (3) If so, is such interference in accordance with the law? (4) If so, is such interference 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? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved? 87. Modified to fit the facts of this case, we have already answered the first and second Razgar questions in the affirmative. The interference with the applicant’s Article 8 rights will be of such gravity so as potentially to engage the operation of Article 8 ( Razgar 2). 88. The interference is in accordance with the law, in the sense that it is conducted pursuant to the framework set out in section 3 of the Immigration Act 1971 for the imposition of conditions on the grant of limited leave to remain ( Razgar 3). The Secretary of State has published policy setting out the principles she will apply when imposing conditions in matters such as the present. 89. As to the fourth Razgar question, the RL policy is, in principle, capable of achieving one of the goals set out in the derogations contained in Article 8(2) of the Convention. At [29] of Kardi , Richards LJ held that the stated aims of the policy were all, in principle, legitimate aims. He said: “The various elements of the stated rationale are all in principle legitimate aims, though it will be necessary to consider the extent to which they are specifically engaged in the appellant's case. More needs to be said, however, about the stated wish to give a clear signal that the person should not become established in the United Kingdom. The rationale of the previous discretionary leave policy was described by Cranston J in R (Mayaya) v Secretary of State for the Home Department [2011] EWHC 3088 (Admin), [2012] 1 All ER 1491, at paragraph 57, as being “not simply to ensure regular reviews so that foreign national prisoners [the specific category of persons in issue in that case] can be removed from the United Kingdom when the opportunity arises”, but also “to plant road blocks in the way of foreign national prisoners settling here”, though settlement might in practice still occur. In other words, the grant of short periods of leave emphasised the intended impermanence of the individual's stay in this country and made it more difficult to put down roots here and to build up a private life, thus reducing the prospect of removal being prevented on Article 8 grounds when the opportunity otherwise arose. The current restricted discretionary leave policy, by providing for the imposition of specific conditions on the grant of leave, is intended to reduce further the opportunity to put down roots and thereby to reinforce the roadblocks planted in the way of settlement here. It does not prevent the establishing of a private life but makes it more difficult and so increases the chance that the delay before removal can be effected does not operate to prevent removal altogether. That is a legitimate aspect of immigration control.” 90. In MS (India) , Underhill LJ held at [107] that: “The language of ‘placing obstacles’ and ‘creating Road-blocks’ may have, out of context, a pejorative ring. But the context is all-important. The category of migrants with whom we are concerned have, by definition, committed serious crimes (in the sense identified above), typically of a terrorist character. They have no right to be in this country and are only permitted to stay because, having come here unlawfully, it has proved impossible to remove them. I see nothing even arguably illegitimate in seeking to prevent them putting down roots, for the reasons clearly stated in the policy itself.” 91. Addressing the derogations under Article 8(2) directly, it is trite law that the maintenance of effective immigration controls is an accepted subset of the need to establish national security, public safety and economic well-being based derogations, when combined with the prevention of disorder or crime, protection of health or morals, and the protection of the rights and freedoms of others. The reasons given by the Secretary of State for restricting the grant of leave to MBT to a further period of restricted leave are all, in principle, capable of being regarded as a permitted derogation within the parameters of Article 8(2). Proportionality of decision to refuse indefinite leave to remain 92. We turn to the fifth Razgar question: whether the decision not to grant indefinite leave to remain to the applicant was proportionate. This question requires consideration of the reasons given by the respondent for refusing to grant indefinite leave to remain, in the context of the reasons and objectives for, and given in, the RL policy itself, set against the representations and submissions made by the applicant. 93. It is important to recall the wider context within which our assessment is to sit; as Underhill LJ noted at [116] of MS (India) , “the starting point must be the terms of the policy.” The effect of the policy is that ILR should only be granted in exceptional circumstances: see [40] and [41] of MS . Only where there are “compelling reasons for a departure from the general rule” will it be appropriate for an individual to be granted ILR. The “essential question” concerning the ILR issue is, “whether in the case in question the Secretary of State should have found that such compelling reasons were present” (per Underhill LJ, also at [116]). 94. In MS (India) the Court of Appeal outlined three indicative criteria which were likely to be relevant to the “compelling reasons” issue, in addition to any case-specific factors raised on behalf of an applicant. We will address these considerations in light of the applicant’s submissions. We emphasise that we have considered all the relevant factors, in the round, before reaching our decision. Length of residence 95. The first relevant consideration is the length of residence in the United Kingdom (see [120]). The Court of Appeal held that, “in an appropriate case”, the length of residence may bring a case into the exceptional category. The court noted that paragraph 276ADE(1)(iii) of the Immigration Rules, which governs the length of unlawful but tolerated residence needed to secure leave to remain on Article 8 grounds, was 20 years, commenting that that provided “some context”. The Court of Appeal proceeded on the basis that paragraph 276ADE(1)(iii) confers a right to indefinite leave to remain after 20 years’ unlawful residence. The Court of Appeal appeared not to have had the benefit of full argument or accurate submissions on the interpretation and application of paragraph 276ADE(1)(iii). Rather than leading to a grant of indefinite leave to remain, as the Court of Appeal must have been led to believe, the import of paragraph 276ADE(1)(iii) is that, upon 20 years’ residence, it entitles an applicant to limited leave to remain, which will usually be for a period of 30 months. Twenty years of unlawful residence merely places the migrant at the start of the so-called “ten year route” to settlement. 96. Paragraph 276ADE(1) provides, where relevant: “276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant: (i) does not fall for refusal under any of the grounds in Section S-LTR 1.1 to S-LTR 2.2. and S-LTR.3.1. to S-LTR.4.5. in Appendix FM; and (ii) has made a valid application for leave to remain on the grounds of private life in the UK; and (iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment)…” We note that the introductory wording to the root paragraph uses the term “leave to remain”, rather than “indefinite leave to remain”. Paragraph 276BE(1) makes provision concerning the practical outcome of successful applications under paragraph 276ADE(1), in these terms, with emphasis added: “ 276BE(1).