Case No. UKUT-00414-(IAC)

[2006] EWCA Civ 1157 at, for example, [46]. 159. Parliament can be presumed to have legislated in light of the applicable requirements of the common law. In doing so, when enacting the 2010 Act, it must have known that, by its inclusion of a decision “to refuse leave… to remain in the United Kingdom” in paragraph 16(3)(b) of Schedule 3 to the 2010 Act, it would be necessary for the Secretary of State to grant some form of lesser status to those subject to such a decision. By definition, such persons would be within the United Kingdom. The construction for which Ms Weston contends would, if correct, deprive paragraph 16(3)(b) of its utility, to the extent a public good decision concerned a refusal of leave to remain. 160. As such, the decision to grant 12 months’ restricted leave to the applicant, pursuant to the RL policy falls squarely within sub-paragraph (4)(b) of paragraph 16 to the Schedule. It was “a decision taken in accordance with guidance given by the Secretary of State in connection with a decision within that sub-paragraph…” Put another way, the decision to grant restricted leave was one taken “in connection” with the primary decision to refuse to grant ILR. It was an ancillary decision taken pursuant to the primary refusal decision. 161. That being so, the import of paragraph 16 of Schedule 3 is that the section 29 duty on providers of services is not engaged in relation to the applicant. As Ms Weston accepted at the hearing, section 15 of the 2010 Act merely defines disability discrimination. It is not engaged in the absence of the criteria in section 29 being applied. It does not impose a free-standing duty. 162. It is not, therefore, necessary to consider whether the 2019 decision was discriminatory towards the applicant, as the respondent’s section 29 duty was disapplied by paragraph 16 of Schedule 3. Public sector equality duty 163. In our judgment, the operative requirements of the public sector equality duty contained in section 149(1)(a) of the 2010 Act are only engaged to the extent that the underlying conduct at which the duty is aimed at is prohibited by the Act. Its engagement stands or falls with the engagement – or otherwise – of the prohibition against discrimination contained in the Act. So much is clear from the obligation in section 149(1)(a) to eliminate “discrimination… that is prohibited by or under this Act .” As we have set out, the discrimination of which the applicant complains is not prohibited so far as the respondent’s decision to refuse to grant him ILR, and grant restricted leave instead, was concerned. That is not, of course, to say that the applicant’s disabilities are irrelevant: we have set out at length our analysis on the impact of his health conditions. It is simply to say that, in the course of establishing the statutory regime contained in the 2010 Act, there is certain conduct which is not subject to the obligations of the Act. 164. The disapplication of section 29 goes only to section 149(1)(a), as it has effect only in relation to prohibited conduct under the Act. The broader duties contained in subsection (1)(b) and (c), namely to advance equality of opportunity between persons sharing a relevant protected characteristic and those who do not, and the need to foster good relations between such persons, are wider free-standing duties. Ms Weston was unable to articulate what steps the respondent should have taken in order to further these objectives pursuant to the public sector equality duty in relation to the RL policy. Given the context of the RL policy, we struggle to see how it could be used as a vehicle specifically to advance equality of opportunity or to foster good relations. To an extent, of course, those objectives are subsumed within the wider public interest, public safety and no safe haven objectives of the policy. A policy which endorses the conduct which those excluded from the Refugee Convention, or deprived of the benefit of Article 33(2), will have engaged in cannot be said to advance equality of opportunity, or foster good relations. The objectives of the policy encompass wider societal goals which reflect the objectives of the duties contained in section 149(1)(b) and (c). 165. To the extent that the RL policy needs specifically to engage in positive steps in order to comply with the duties contained in paragraphs (b) and (c), we consider that the policy itself features sufficient inherent flexibility to enable the Secretary of State to adapt its application tailored to the circumstances of the particular individual. 166. The 2019 decision’s approach to this applicant demonstrates this principle applying in practice. In relation to the duration of restricted leave, at page 14, the policy states that there is a discretion to grant periods longer than the standard six months, “if justified by the particular circumstances of the case.” A non-exhaustive list of indicative considerations is set out on the same page, the first of which is “the individual’s circumstances”. This permits the respondent to take into account the protected characteristics of the individual concerned, and to the extent that individual has made representations that the circumstances of their restricted leave should take into account their protected characteristics, it is possible for the respondent to do so. We see nothing more that the respondent could reasonably be expected to do in furtherance of the duties imposed by paragraphs (b) and (c). Article 14 of the ECHR 167. Article 14 of the ECHR imposes anti-discrimination obligations on contracting parties in relation to conduct which is within the ambit of a substantive Convention rights. It is common ground that the final two words of the article, “other status” can encompass disability status. That means that, although the 2010 Act is not engaged for the reasons we have already given, the applicant may, in principle, rely directly on the convention for redress. 168. We do not consider that the applicant has been treated less favourably on account of his disabilities. We accept that if he were treated in identical terms to those without the physical and mental impairments from which he suffers, there may be grounds to conclude that some form of discrimination has taken place, such that it falls upon the Secretary of State to provide the necessary justification. 169. The applicant has been treated differently, in a manner beneficial to him, from those who do not experience the mental and physical health problems set out above. The respondent took into account his representations and granted a length of restricted leave which was double the normal length, and reduced his reporting requirements to four times annually, as against every other month. It is simply not the case that he has been treated in a manner identical to those who do not suffer the problems which he experiences. He has been treated differently, precisely because the respondent adapted the way the policy applied to him, in light of his representations concerning his disabilities. 170. We reject the submission on behalf of the applicant that the placement of “roadblocks” in the way of his private life developing has had a disproportionately adverse impact upon him, in light of his disabilities. We have set out above how the respondent did not impose wholly unreasonable expectations upon the applicant. She did not expect him to make positive contributions to society, precisely on account of the health-based representations he made to her. The applicant has not been required to demonstrate rehabilitation going over and above that which he is physically or mentally able to provide. Taken at its highest, the Secretary of State has sought evidence of genuine remorse. For the reasons we have already set out, the applicant has refused to engage his responsibility for the terrorist offences he committed in France. There is no medical evidence that the applicant was prevented from doing so on account of his disabilities, or, for example, capacity issues. 171. We do not consider, therefore, that the applicant’s situation amounts to one of being the victim of discrimination for the purposes of Article 14 ECHR. The question of justification does not arise. 172. We refuse permission to bring judicial review proceedings on grounds 8 and 9. Ground 6 – duty of enquiry concerning risk on return 173. Ms Weston’s skeleton argument did not feature any argument concerning this ground, and she did not pursue the submission at the hearing. We see no merit in the suggestion that there is any duty upon the respondent to make enquiries concerning the applicant’s risk on return given that his return is not currently envisaged. 174. We refuse permission on this ground.