AO & Anor, R (on the application of) v Secretary of State for the Home Department

A policy may use a custodial sentence of at least 12 months as a measure of “serious crime” for humanitarian protection and discretionary leave purposes. That threshold is not an unlawful fetter where the sentence itself reflects the criminal court’s assessment of seriousness. The Pankina principle prevents policies from adding substantive immigration criteria outside the Immigration Rules, but it does not prevent policy from fixing the meaning of an undefined term in those Rules. A policy requiring ten years’ discretionary leave before an application for indefinite leave to remain will be considered unlawfully fetters discretion. The decision-maker must consider an application on its merits before that period expires.

Three linked judicial review claims concerned the policy governing leave to remain for foreign national prisoners whose removal would breach the ECHR. Mayaya challenged the use of a 12-month custodial sentence as an automatic indicator of serious crime and the ten-year settlement requirement. AO and HE accepted that their offending was serious but challenged the repeated grants of short or limited discretionary leave, the refusal to consider settlement, and the alleged failure to take account of their circumstances, delay and established private or family life.

The central issues were whether the policy was incompatible with the Qualification directive, unlawfully fettered the Secretary of State’s discretion, breached the Pankina principle, or produced disproportionate interference with article 8 rights.

1. The claims succeeded only to the extent that the discretionary leave policy suggested that a person in an exclusion category could not be considered for indefinite leave to remain until completing ten years’ discretionary leave. That requirement unlawfully fettered the Secretary of State’s discretion. The challenged decision letters were therefore flawed, although later letters had addressed the claimants’ cases.

2. A custodial sentence of at least 12 months was a lawful and rational measure of “serious crime” under article 17(1)(b) of the Qualification directive and paragraph 339D(i) of the Immigration Rules. The directive left Member States to determine how seriousness should be assessed. The criminal courts did not ordinarily impose sentences of that length for non-serious offences.

3. EN (Serbia) and Al Sirri concerned different exclusion provisions and did not require the 12-month threshold to be treated as a rebuttable presumption. The present threshold did not unlawfully broaden the exclusion from humanitarian protection.

4. The no-fettering principle required the Secretary of State to publish the relevant policy, allow representations on its application, and consider the individual case on its merits. It did not require a re-investigation of the seriousness of offending already assessed by the sentencing court. The threshold was therefore not itself an unlawful fetter.

5. The Pankina principle was not infringed. The 12-month criterion did not impose an additional substantive hurdle beyond paragraph 339D(i); it prescribed how the existing Immigration Rules concept of serious crime was to be determined.

6. The policy’s short grants of discretionary leave and delayed consideration of settlement pursued both regular review of continuing removal prospects and a legitimate preventative policy against settlement by serious offenders. The decisions concerning AO and HE were not irrational or disproportionate, and the Secretary of State had adequately considered their individual circumstances. The delay in R (N) was materially different.

7. Article 8 added nothing decisive. Even if uncertainty concerning private or family life engaged article 8, the interference was proportionate. The remaining challenges failed.

First-instance judicial review claims. The judgment records earlier immigration tribunal and adjudicator decisions concerning the claimants’ ECHR claims, but no appeal from those decisions to this court.