Case No. UKUT-00414-(IAC)

[2018] EWCA Civ 117 as amounting to meriting the conclusion that, “[w]e find it hard to believe that the respondent now considers the appellant to be an undesirable alien…” In that case, the appellant had been a senior church leader who acquiesced in the Rwandan genocide, although was not an active participant. He had since engaged in extensive post-genocide reconciliation and accountability initiatives. He was accepted and trusted by the regime of President Kagame in that capacity during return visits. He had been a member of the Rwandan delegation at a Commonwealth reception at Buckingham Palace. Those were all factors that the FTT considered to be important when considering his appeal against the Secretary of State’s refusal of his human rights claim. The decision was upheld by the Upper Tribunal, which was in turn upheld by the Court of Appeal (Singh LJ dissenting). The decision was upheld principally because there had been no error of law in the assessment of the FTT, and Underhill LJ held that it must be respected. 116. We consider it would be wholly unreasonable, and therefore irrational, to expect a Ruhumuliza level of positive contribution from this applicant. We do not consider the 2019 decision falls into error on this issue; the respondent did not expect such standards. The key factor relied upon by the 2019 decision is one with which we entirely agree; the applicant has demonstrated no remorse, nor has he taken responsibility for his offending in France. At every stage, including before these proceedings, he has sought to minimise his responsibility for the offences of which he was convicted. Although in a statement prepared for these proceedings the applicant seeks to renounce terrorism and underline his commitment to achieving political change through peaceful and democratic means, those are, with respect, empty words in light of his denial of responsibility for his offences. There is no suggestion in the medical evidence that the applicant’s reasoning is impaired to such an extent that he lacks the capacity to demonstrate such reform. It was entirely appropriate for the respondent to deal with this issue in the terms outlined above. In any event, as we understand the 2019 decision, the respondent was saying that the absence of evidence of rehabilitative conduct meant that this was not a factor which counted in the applicant’s favour. The respondent was not saying that this counted against him. It was the applicant’s French conviction which counted against him. Other relevant factors 117. At [123] of MS (India) , the Court of Appeal said that there may be a variety of individual circumstances which, either in isolation or taken with other factors, bring the case into the exceptional category. The additional factors in the present matter include the applicant’s physical and mental health conditions, and the claimed wider impact of the grant of restricted leave on his family, in particular his minor children. Best interests of the children 118. It is clear that life on restricted leave has had an impact on the applicant’s family, mainly by virtue of the collateral impact his health conditions will have had on them. From the materials we have seen, the impact is of a limited nature. The applicant has been able to establish family life in this country through marrying and having four children. His wife enjoys ILR and his children are all British citizens. Three of his children are still minors; they are aged 17, 15 and 13. The applicant does not presently face removal. 119. In his statement prepared for these proceedings, the applicant writes: “It is a hard feeling to be in a country for 20 years, starting with so much hope for the future, and gradually realising that in the opinion of the place which is your home you are a hated foreigner and there is nothing you can do to improve your situation. I feel guilty that this hatred from the state affects my children and their futures…” At page 8 of Dr Bell’s report, the applicant is recorded as having said, “ I feel like I have destroyed their life” when speaking of the impact of his difficulties upon his children. 120. Other than the applicant’s assertions that his immigration status affects his children, there is no evidence to suggest that the conferral of ILR is necessary in their best interests. The applicant himself has said that he does not know if being granted ILR would alleviate his feelings of helplessness (see paragraph 128). Despite the thrust of Dr Bell’s report being that the applicant requires ILR on, in effect, medical grounds, he writes at page 12 that a grant of ILR would be unlikely to have an immediate effect, due to the severity of his psychological state. 121. The leading authorities concerning the assessment of the best interest interests of children in the immigration context require analysis of the “real world context” in which the migrant and their family find themselves. Perhaps revealingly, they are addressing removal scenarios, rather than situations where, as here, removal is not currently within scope. In