MS v Secretary of State for the Home Department (Rev 1)

A person excluded from the Refugee Convention may nevertheless become entitled to indefinite leave to remain where removal is not realistically foreseeable, the person has established a settled family and private life, and rehabilitation or the absence of continuing risk is material. A policy requiring restricted limited leave must be applied flexibly and must allow exceptional cases to be identified. Maintaining limited leave solely to signal that terrorist offenders should not settle, without addressing the individual circumstances, is irrational and contrary to the policy. Conditions attached to limited leave must be necessary and lawful. A residence condition cannot substantially restrict how a person lives at an address where the statutory power permits only a condition about residence.

The claimant, an Indian national excluded from Refugee Convention protection because of terrorist activities, could not be removed because removal would breach Articles 2 and 3 of the ECHR. The defendant applied the restricted leave policy and refused indefinite leave to remain, granting two years’ restricted leave with conditions concerning residence, employment, study, reporting and absence from the address.

The Upper Tribunal had previously upheld the policy but required consideration of whether the claimant had reached the point at which indefinite or longer leave should be granted: [2015] UKUT 00539 (IAC). The claimant challenged the refusal of indefinite leave, the conditions, and a condition requiring consent before extended absence from his residence.

1. Indefinite leave. The claimant had been in the United Kingdom for more than 20 years, had a British wife and three British children, was no longer assessed as a security risk, and could not realistically be removed to India in the foreseeable future. The policy itself recognised that exceptional cases could justify indefinite leave and that rehabilitation through the passage of time might be relevant. The decision-maker failed to engage with those matters and treated the policy as requiring continued limited leave. Refusal of indefinite leave was therefore irrational and contrary to the policy.
2. Effect of limited leave. The principles discussed in R(George) v Secretary of State for the Home Department [2014] 1 WLR 1831 did not justify maintaining limited leave indefinitely. That authority recognised that indefinite leave might become appropriate after the passage of time. The claimant’s long residence, family life and practical irremovability meant that his status should no longer be regarded as precarious for the purposes of private life. Section 117B of the Nationality, Immigration and Asylum Act 2002 did not reduce the weight given to family life or displace the duty to consider children’s interests.
3. Conditions. Since indefinite leave should have been granted, the conditions attached to limited leave were unnecessary. More generally, the power in section 3(1)(c) of the Immigration Act 1971 to impose a condition about residence did not authorise a condition which materially restricted the claimant’s liberty to live his life. The approach in Gedi v Secretary of State for the Home Department [2016] 4 WLR 93 applied.
4. False imprisonment. The absence condition did not amount to actual detention. It was a conditional restraint dependent on the claimant seeking to exceed the permitted periods. Applying the distinction discussed in Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 and R v Bournewood Mental Health Trust, ex p L [1999] 1 AC 458, no tort of false imprisonment was established. The claim nevertheless succeeded because the condition was an unlawful restriction on liberty. The court would hear counsel on appropriate relief.

• Upper Tribunal (Immigration and Asylum Chamber): upheld the restricted leave policy in R(MS and MBT) v Secretary of State for the Home Department [2015] UKUT 00539 (IAC), but held that the claimant’s individual circumstances required consideration of whether longer or indefinite leave should be granted.
• Court of Appeal: permission to appeal the policy’s lawfulness had been granted, with the appeal due to be heard in March 2017.
• High Court (Administrative Court): assumed the policy’s lawfulness, but held that its application to the claimant was irrational, that the conditions were unlawful, and that the absence condition did not constitute false imprisonment.