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

Section 3(1)(c) of the Immigration Act 1971 permits specified conditions to be attached whenever limited leave is granted. It applies to persons excluded from refugee protection who cannot be removed because removal would breach article 3.

The Restrictive Leave to Remain policy was lawful. It contained sufficient flexibility as to duration, conditions, exceptional cases and eventual settlement. It was neither an unpublished Immigration Rule nor an unlawful fetter of discretion.

Its interference with article 8 rights pursued legitimate immigration-control and public-protection aims. Decisions must nevertheless be individual and proportionate, with children’s best interests a primary consideration. A decision-maker must consider whether the point has been reached at which indefinite leave is the only reasonable course, unless that submission is plainly hopeless.

MS, an Indian national, and MBT, a Tunisian national, had each been excluded from the Refugee Convention because of past terrorism-related conduct. Removal was not possible because it would breach article 3 of the European Convention on Human Rights. Both had previously received discretionary leave, but were later granted six-month periods of Restrictive Leave to Remain with residence, employment, reporting and study conditions.

They brought judicial-review claims challenging both the lawfulness of the policy and its application to them. They relied, among other matters, on the statutory power to impose conditions, article 8 rights, the welfare of their British children, delay in determining their applications, and their claims for indefinite leave to remain.

1. The policy was lawful. Section 3(1)(c) of the Immigration Act 1971 authorises the listed conditions whenever limited leave is granted. Its language does not confine conditions to leave granted for a particular purpose, nor require breach to result in curtailment. Reporting and residence conditions also serve immigration enforcement.

2. The policy did not require laying before Parliament under section 3(2). Although it ordinarily applied to the excluded category, it left caseworkers discretion over the duration of leave, the choice and terms of conditions, and exceptional cases in which settlement might be appropriate. It was guidance rather than an inflexible rule. For the same reasons, it did not unlawfully fetter discretion.

3. The policy pursued legitimate aims under article 8: effective immigration control, public protection, and preserving the possibility of removal. Six-month leave and conditions may affect the quality of family life, but do not prevent family life from continuing. They are proportionate in principle only if individually assessed and no more restrictive than necessary. Very strong evidence will usually be needed to justify departure from the usual duration or conditions, although study restrictions may more readily require adjustment.

4. Under section 55 of the Borders, Citizenship and Immigration Act 2009, children’s best interests must be a primary consideration when deciding both duration and conditions. That duty was compatible with the policy.

5. The claims based on delay and alleged historic injustice failed. Applying TN and MA (Afghanistan) v Secretary of State for the Home Department [2015] UKSC 40, a superseded policy benefit cannot be restored merely because an in-time application was delayed.

6. MBT’s grant and conditions were lawful. MS’s latest decision was unlawful because it did not consider whether the eventual settlement point had been reached, and did not address his request to take a short vocational gas-engineering course. The leave had expired and a fresh decision was inevitable, so the Tribunal declined to quash it or grant declaratory relief.

This was a substantive judicial-review determination. The judgment records earlier immigration and asylum decisions affecting each applicant, but no appealed lower-court judgment in these proceedings.