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

A decision that removal would breach human-rights obligations does not necessarily determine that a person is entitled to humanitarian protection. Refugee status, humanitarian protection and discretionary leave are distinct categories. A person may be protected from removal without receiving a particular immigration status.

Where the relevant exclusion provisions are mandatory, a serious conviction may prevent humanitarian protection even though removal remains unlawful. The crucial question is whether a later decision is inconsistent with the tribunal’s earlier decision, rather than simply whether the exclusion point was previously raised.

Six-month discretionary leave may be proportionate where the person is excluded from humanitarian protection, provided applications are determined promptly. The proportionality assessment remains fact-sensitive.

The claimant, an Iranian national, had been refused asylum and his appeal rights were exhausted. The Secretary of State later made a deportation order. On reconsideration, the Tribunal found a real risk that he would face execution in Iran and allowed the appeal because removal would breach Article 1 of Protocol 13 to the ECHR. The claimant was consequently granted successive periods of six-month discretionary leave.

He later sought humanitarian protection and five years’ leave. The Secretary of State refused, relying on his convictions for murder in Iran and causing grievous bodily harm with intent in the United Kingdom. The claimant also challenged the proportionality of repeated six-month grants, relying on difficulties with employment, banking, travel and delay. The central issues were whether humanitarian protection had been implicitly determined by the Tribunal and whether the six-month policy was disproportionate.

1. Humanitarian protection. The claim was dismissed. The Directive and the Immigration Rules distinguish between refugee status, humanitarian protection and discretionary leave. A finding that removal would breach the ECHR does not itself determine which status, if any, a non-refugee should receive. The United Kingdom’s immediate obligation may be only not to remove the person.
2. The exclusion provisions in Article 17 of the Directive and paragraph 339D of the Immigration Rules are mandatory. In light of the three-and-a-half-year sentence for causing grievous bodily harm with intent and the sentencing judge’s remarks, it would not have been open to the Tribunal to conclude that the claimant was not excluded from humanitarian protection.
3. The relevant question was whether the Secretary of State’s later decision was inconsistent with the Tribunal’s decision. The reasoning in TB (Jamaica) v Secretary of State for the Home Department was concerned with inconsistency, rather than a general rule that every point not taken before a tribunal is permanently unavailable. Unlike a successful asylum appeal, the Tribunal’s decision here did not recognise a particular status and therefore left humanitarian protection open.
4. Judicial review supplied an effective remedy. The material facts were undisputed and the remaining questions were legal and policy questions which the reviewing court could determine fully.
5. Article 8. The cumulative restrictions associated with six-month leave were capable of affecting private life. However, limiting leave to six-month periods was not irrational or disproportionate in principle where the claimant had committed a serious offence and could not be deported only because removal would breach human-rights obligations. The evidence did not establish disproportionate operation in this case. Delay was unsatisfactory, but the claimant’s representatives had also failed to provide requested photographs for many months, and the evidence concerning employment, banking and travel did not establish the asserted causal link.
6. The application for judicial review was dismissed.