C, R (on the application of) v Secretary of State for the Home Department

The exclusion criteria for humanitarian protection in rule 339D of the Immigration Rules are disjunctive. They must be interpreted consistently with the applicable European Union directive, so the criteria do not need to be satisfied cumulatively.

Where a person has committed a serious offence, has been recommended for deportation, and cannot presently be removed because removal would breach article 3, a policy of granting discretionary leave in six-month periods may be proportionate. It permits review of both the individual’s circumstances and conditions in the receiving country. Such treatment is not discriminatory merely because British nationals do not face removal to that country.

The claimant, a Chinese national convicted of serious kidnapping, false imprisonment and blackmail offences, challenged the Secretary of State’s failure to grant humanitarian protection and the grant of only successive six-month periods of discretionary leave.

An adjudicator found that removal to China would breach article 3 of the European Convention on Human Rights, but rejected the claimant’s asylum claim. The Asylum and Immigration Tribunal upheld the human-rights finding. The claimant argued that the Immigration Rules should reflect the Refugee Convention, that the Secretary of State was bound by the tribunal decisions, and that the six-month discretionary-leave policy was unlawful as disproportionate and discriminatory.

1. Rule 339D. The exclusion categories in rule 339D of the Immigration Rules are disjunctive. The word “and” must therefore be read as “or” where necessary to give effect to Council Directive 2004/83/EC. Humanitarian or subsidiary protection contains an additional serious-crime exclusion which is not confined to the exclusions in the Refugee Convention.
2. Effect of the tribunal decisions. Secretary of State for the Home Department v TB (Jamaica) was distinguishable. In that case the Secretary of State could not circumvent an immigration tribunal’s determination that the claimant was entitled to refugee status and leave. Here, the claimant’s refugee claim and claim to humanitarian protection had been rejected. The tribunal had determined the risk on return, not the appropriate duration of discretionary leave. The Secretary of State was therefore entitled to consider the length of leave, including by reference to the exclusion provisions.
3. Six-month policy. The policy of granting six months’ discretionary leave was not unlawfully rigid. Given the seriousness of the claimant’s offences, the deportation recommendation, and the fact that the only obstacle to removal was the risk arising from the conviction, periodic leave enabled review of the claimant’s circumstances and conditions in China. It was a proportionate interference with private life.
4. Discrimination. The claimant was not in an equivalent position to British nationals released after criminal convictions, because British nationals were not liable to removal to China. The difference in treatment therefore did not amount to discrimination.
5. Disposition. The claim for judicial review was dismissed. The claimant was ordered to pay the defendant’s costs, subject to the usual public-funding and enforcement provisions. Permission to appeal was refused by the judge on the basis that there was no realistic prospect of success.

This was a first-instance judicial review in the Administrative Court. The judgment records earlier decisions by an adjudicator and the Asylum and Immigration Tribunal concerning the claimant’s asylum and human-rights appeals, but no appeal from the present judgment.