MS & Anor v The Secretary of State for the Home Department

A published immigration policy governing persons who are excluded from international protection but cannot lawfully be removed is lawful where it preserves genuine, case-specific discretion. Limited leave and proportionate conditions may legitimately impede settlement while retaining the possibility of removal.

Indefinite leave under such a policy may be confined to exceptional cases. This requires compelling reasons to depart from the general rule, rather than satisfaction of a separate exceptionality test. Relevant considerations include length of residence, the gravity of the conduct causing exclusion, subsequent personal change and other individual circumstances. The Secretary of State has a wide judgment, but must assess and explain those matters rationally. Refusal of indefinite leave does not, by itself, interfere with article 8 rights.

The appeals concerned the Restricted Leave Policy governing asylum seekers who were excluded from refugee or humanitarian protection because of serious conduct, but whose removal would breach article 3 of the European Convention on Human Rights.

MS and MBT appealed from the Upper Tribunal's refusal of their judicial review claims challenging the policy and decisions refusing them indefinite leave. In separate proceedings, the Secretary of State appealed from Collins J's order quashing a later decision refusing MS indefinite leave after 20 years' residence.

The principal issues were whether the policy constituted immigration rules requiring parliamentary scrutiny, unlawfully fettered discretion, infringed article 8, or was otherwise unlawful; and whether the individual refusals of indefinite leave were rational and proportionate.

1. The claimants' appeals were dismissed and the Secretary of State's appeal was allowed. The Restricted Leave Policy was lawful. The later decision refusing MS indefinite leave was restored.

2. The policy did not contain rules requiring parliamentary scrutiny under section 3(2) of the Immigration Act 1971. Applying R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33 and R (Munir) v Secretary of State for the Home Department [2012] UKSC 32, the policy was sufficiently flexible. Its language contemplated individual assessments and case-specific outcomes concerning duration, conditions and settlement. Evidence that similar decisions were commonly reached did not alter the policy's legal character, although formulaic application might be challenged in an individual case.

3. The same flexibility meant that the policy did not unlawfully fetter the Secretary of State's discretion. Section 3(1)(c) of the Immigration Act 1971 also conferred a general power to impose the listed conditions whenever limited leave was granted. Permission to appeal on the contrary construction was refused.

4. The policy's interference with private and family life was in accordance with law and pursued legitimate aims. Preventing excluded but irremovable migrants from putting down further roots, preserving the prospect of removal and protecting the public were legitimate aspects of immigration control. The anticipated restrictions were generally limited and proportionate, provided each decision was fact-sensitive and imposed no more than necessary.

5. The policy meant that indefinite leave should be granted only where compelling circumstances justified departure from the general rule. The statement that such circumstances would be very rare was predictive and did not create a separate exceptionality test. Relevant considerations included length of residence, the gravity and evidential basis of the conduct causing exclusion, evidence of subsequent change, and other individual circumstances. Continued risk, further serious offending, a realistic prospect of removal or an ongoing need for conditions would strongly oppose indefinite leave.

6. The Secretary of State's assessment remained reviewable. Ordinary rationality principles applied, subject to the court's own proportionality assessment where article 8 was engaged. Refusal of indefinite leave alone did not interfere with article 8, although short leave and accompanying conditions could have a limited effect on private and family life. Appropriate respect was due to executive judgments concerning terrorism, national security, foreign relations and public acceptability.

7. Collins J had wrongly construed R (N) v Secretary of State for the Home Department [2009] EWHC 1581 (Admin) as importing a normal entitlement to indefinite leave after ten years. Despite MS's 20 years' residence, settled family life and absence of current security risk, his past terrorist involvement was serious. The Secretary of State rationally and proportionately gave decisive weight to the policy against providing a safe haven for terrorists, particularly as two years' leave reduced the short-term uncertainty.

8. MBT had no legitimate expectation that the policy applicable when discretionary leave was first granted would remain unchanged. There was no evidence that he had formed family life in reliance on an expectation of indefinite leave. His appeal therefore failed.

1. Court of Appeal (Civil Division): dismissed MS's and MBT's appeals from the Upper Tribunal and allowed the Secretary of State's appeal from the Administrative Court.

2. High Court, Administrative Court: Collins J quashed the decision of 18 February 2016 refusing MS indefinite leave and required reconsideration. The citation is not stated in the judgment.

3. Upper Tribunal (Immigration and Asylum Chamber): Dove J and UTJ Gill rejected the general challenge to the Restricted Leave Policy and the material individual challenges. It identified defects in earlier decisions concerning MS but declined to quash them because fresh consideration was imminent. The citation is not stated in the judgment.