The Secretary of State for the Home Department v Jonathan Ruhumuliza

Exclusion from the Refugee Convention under article 1F(a) does not, by itself, establish that a person’s presence in the United Kingdom is undesirable under the Immigration Rules. The undesirability provisions require an assessment of the person’s character, conduct and associations as a whole, including relevant subsequent conduct and present circumstances.

Paragraph 276B(ii) requires an evaluative assessment, rather than the exercise of a discretion reserved to the Secretary of State. Where entitlement under that paragraph is in issue, the Tribunal may make that assessment for itself.

The claimant, a Rwandan Anglican bishop, had lived in the United Kingdom with successive grants of leave. The Secretary of State refused his asylum claim on the basis of exclusion under article 1F(a) of the Refugee Convention and later refused his article 8 application under paragraph S-LTR.1.6 of Appendix FM.

He relied also on ten years’ residence under paragraph 276B of the Immigration Rules. The First-tier Tribunal assumed the Secretary of State’s allegations concerning his conduct during the Rwandan genocide were factually correct, but held that his history as a whole did not make his presence undesirable. It found the decision not in accordance with the law because the Secretary of State had to consider her policy on condoning a short gap in lawful residence. The Secretary of State appealed.

1. Appeal dismissed. The First-tier Tribunal had directed itself to the correct question: whether the claimant’s character, conduct or associations made him unsuitable or ineligible for leave, rather than whether he remained entitled to refugee status.

2. Article 1F(a) exclusion was absolute for the purpose of refugee status, but it was not determinative of undesirability under paragraph 276B(ii) or paragraph S-LTR.1.6 of Appendix FM. Those provisions required an assessment of the claimant’s history as a whole. They did not make past involvement in a crime against humanity an automatic and permanent bar to leave.

3. The First-tier Tribunal had permissibly adopted the Secretary of State’s case at its highest and then considered the claimant’s subsequent conduct, reconciliation work, public acknowledgment of failings, standing with the Rwandan authorities, and recognised international and diplomatic roles. Those matters entitled it to conclude that, despite the starting assumption, he was not presently a person whose character, conduct or associations made a grant of indefinite leave undesirable.

4. Paragraph 276B(ii) did not confer a discretion in the relevant sense. Its language required an assessment. Since the Secretary of State had not previously considered whether the claimant met its requirements, the First-tier Tribunal was entitled to make its own assessment and committed no error of law.

5. The First-tier Tribunal had not allowed the appeal outright. The claimant’s 2006 gap without leave exceeded the period disregarded by paragraph 276B(v). It remained for the Secretary of State to consider whether her published policy on condoning short gaps should be applied. The Upper Tribunal doubted that conduct considerations should be reintroduced at that stage, because the other requirements of paragraph 276B had been judicially determined.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was dismissed. The Upper Tribunal upheld the First-tier Tribunal’s assessment under paragraph 276B(ii) and paragraph S-LTR.1.6 of the Immigration Rules.
• First-tier Tribunal: Held that the Secretary of State’s decision was not in accordance with the law. It found no present undesirability, but left the Secretary of State to consider her policy on condoning the short gap in lawful residence.