Kardi, R (On the Application Of) v Secretary of State for the Home Department

Restrictions attached to discretionary leave for a person who cannot presently be removed may interfere with private life under article 8. Their proportionality must be assessed individually and cumulatively by reference to the circumstances known when the decision was made.

Legitimate immigration-control aims include maintaining contact, protecting the public, facilitating removal and limiting further establishment while removal remains intended. Flexible requirements concerning employment permission, residence notification and reporting may therefore be proportionate. An absolute restriction on study requires particular justification. Later information may require reconsideration on a renewed application, but it does not retrospectively invalidate an earlier decision lawfully made on the information then available.

The appellant was a Tunisian national whose asylum claim was excluded from the protection of the Refugee Convention by article 1F because of his terrorism conviction. The tribunal nevertheless found that removal to Tunisia would expose him to treatment contrary to article 3 of the European Convention on Human Rights. He was consequently granted successive discretionary leave.

After a lengthy delay in determining his application for further leave, the Secretary of State granted six months’ restricted discretionary leave under a policy introduced in September 2011. The grant required prior permission for employment, notification of residence, monthly reporting and abstention from study.

His judicial review claim was dismissed by the Administrative Court in [2013] EWHC 3107 (Admin). The appeal concerned whether the administrative delay made the later decision unlawful and whether the restrictions, individually or cumulatively, were a disproportionate interference with private life under article 8.

1. Appeal dismissed unanimously. The delay in determining the application for further leave did not invalidate the eventual decision. The appellant’s existing leave had continued under section 3C of the Immigration Act 1971, and he suffered no material prejudice. The Secretary of State was entitled to decide the application under the policy in force at the date of decision. The evidence supported administrative inefficiency rather than deliberate delay designed to secure application of the new policy.
2. The restricted-leave policy pursued legitimate aims. These included maintaining effective immigration control, keeping persons available for removal, protecting the public and reinforcing the intended impermanence of their presence. Making it harder to build additional private-life ties which might later impede removal was itself a legitimate aspect of immigration control. Those aims could remain relevant despite a long period of residence, although sufficiently prolonged residence or a remote prospect of removal might eventually require indefinite leave.
3. Proportionality had to be assessed by reference to the circumstances known to the decision-maker when the challenged decision was made. Both the individual and cumulative effects of the restrictions required consideration. On the information then available, the interference with private life was limited and justified under article 8.
4. The employment restriction merely required prior permission and permitted individual assessment of public-protection risks. The residence-notification requirement was light and facilitated future removal. Monthly reporting maintained contact and monitored compliance. Its frequency and practical details could be adjusted to individual circumstances. These restrictions were proportionate despite the absence of previous misconduct or difficulty maintaining contact.
5. An absolute prohibition on study required closer individual justification. Preventing attendance on a short, part-time English-language course was not shown to be proportionate once that proposal became known. That information arose after the challenged decision, however. The original restriction was not unlawful on the general information available in March 2012, but it had to be reconsidered when the outstanding application for further leave was determined.
6. The decision was adequately reasoned. Its general reference to the aims recognised by article 8(2), read with the detailed policy, sufficiently explained the restrictions where no specific circumstances requiring a fuller explanation had been raised.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The Court upheld the restricted discretionary leave decision on the information available when it was made, while requiring the study restriction to be reconsidered on the outstanding application for further leave: [2014] EWCA Civ 934.
2. High Court, Administrative Court: His Honour Judge Purle QC dismissed the judicial review claim and granted permission to appeal: [2013] EWHC 3107 (Admin).