G v Secretary of State for the Home Department

Where a person’s presence remains non-conducive to the public good but removal is prevented by a continuing human-rights barrier, limited leave and conditions must remain objectively justified. The Secretary of State may grant leave outside the Immigration Rules and impose conditions without a specific policy, although a comprehensive policy is desirable. Conditions must remain within the statutory power and must take account of the individual’s circumstances, including established family life, mental health and the absence of any real risk of absconding or continuing security threat. Once removal is remote in the extreme, continued short leave and unnecessary conditions may become unreasonable. A condition substantially restricting movement beyond the statutory power is unlawful.

The claimant, an Algerian national, had been refused asylum and was later assessed as having assisted terrorist organisations. He could not be removed because of the risk to his rights under the European Convention on Human Rights, particularly in light of his serious mental-health condition and suicide risk. He had received repeated grants of six months’ leave outside the Immigration Rules, subject to conditions concerning residence, reporting, employment and study.

The claimant challenged the decision of 8 January 2016, seeking indefinite leave or substantially longer limited leave and removal of the conditions. The issues included whether a policy was legally required, whether the conditions were within the power conferred by the Immigration Act 1971, and whether continued short leave was reasonable in the circumstances.

1. Power to grant leave and impose conditions. Section 3 of the Immigration Act 1971 empowered the Secretary of State to grant limited leave outside the Immigration Rules and, where justified, to impose conditions. A specific policy was not legally indispensable, although publishing a policy applicable to persons who could not be removed would be sensible. The principles in R(Lumba) v Secretary of State for the Home Department [2012] 1 AC 2012 arose in the context of detention and did not establish a universal policy requirement for conditions on leave.
2. Lawfulness of conditions. The condition restricting the claimant’s ability to leave his address was unlawful because it amounted to a restraint not permitted by the statutory powers, following R(Gedi) v Secretary of State for the Home Department [2016] 4 WLR 93. Reporting, employment and study conditions were also unjustified. There was no real risk of absconding, no continuing security threat, no reasonable possibility of radicalising others, and the claimant had already established family and private-life roots in the United Kingdom.
3. Duration of leave. Following the approach adopted in R(MS) v Secretary of State for the Home Department [2016] EWHC 3162 (Admin), where removal is not reasonably foreseeable and a person has lived in the United Kingdom without misbehaviour for at least ten years, it may become unreasonable to continue limited leave merely to preserve the possibility of removal.
4. The short periods of leave and associated conditions adversely affected the claimant’s mental health and family. Although the court was not persuaded that Article 3 was breached, those effects were relevant to the reasonableness and justification of the decision. The decision letter was unlawful and was quashed for reconsideration. The claimant’s application for damages for the unlawful movement condition was not determined.