Secretary of State for the Home Department v Ruhumuliza

Exclusion from refugee protection under article 1F(a) does not automatically make indefinite leave to remain on long-residence grounds undesirable. The decision-maker must assess the public interest and the applicant’s personal history as a whole, including the gravity of the past conduct, subsequent conduct and any positive contribution. The public interest in preventing the United Kingdom from becoming a safe haven for persons responsible for crimes against humanity is powerful. Settlement therefore requires compelling or exceptional circumstances. Such circumstances may arise where the applicant has repudiated past conduct, promoted reconciliation, and is not regarded by the home government as a perpetrator whom it seeks to hold accountable. Ordinary blameless residence, work and family life alone may be insufficient. The specialist tribunal’s assessment must be respected on appeal unless it contains an error of law.

The respondent, a Rwandan bishop, had been excluded from Refugee Convention protection under article 1F(a) following allegations concerning the 1994 genocide. He had nevertheless been granted discretionary leave because removal might breach article 6 of the European Convention on Human Rights. He later claimed indefinite leave to remain under paragraph 276B of the Immigration Rules on the basis of ten years’ lawful residence. The Secretary of State refused the application on suitability grounds, relying on his previous conduct.

The First-tier Tribunal allowed the appeal to the extent that the Secretary of State had failed to consider the long-residence claim and found that the respondent qualified for leave. The Upper Tribunal dismissed the Secretary of State’s appeal on 19 May 2016. The Court of Appeal considered the effect of article 1F(a) exclusion, the public interest in preventing a safe haven, the respondent’s subsequent conduct, and whether the First-tier Tribunal had erred by proceeding on assumed allegations rather than making complete factual findings.

1. Appeal dismissed by majority. Underhill and Irwin LJJ held that exclusion from Refugee Convention protection under article 1F(a) did not automatically make indefinite leave to remain undesirable under paragraph 276B of the Immigration Rules. The assessment required consideration of the public interest and the applicant’s personal history as a whole, including conduct after the events giving rise to exclusion.
2. The public interest in ensuring that the United Kingdom does not become a safe haven for persons responsible for crimes against humanity, and in upholding the international rule of law, carried very great weight. Only compelling or exceptional circumstances could justify settlement. The approach described in R (MS (India)) v Secretary of State for the Home Department [2017] EWCA Civ 1190 made subsequent repudiation of past conduct, reconciliation and positive contribution relevant. Secretary of State for the Home Department v Babar [2018] EWCA Civ 329 showed that ordinary blameless residence, work and family life might be insufficient.
3. On the facts summarised by the First-tier Tribunal, the respondent’s public acknowledgement of his failings, reconciliation work, later service and good standing with the Rwandan government made this case materially different from Babar. The international-law concern about preventing avoidance of accountability was not a factor because the Rwandan authorities had not treated him as a genocide perpetrator. The Tribunal’s conclusion was therefore open to it.
4. Proceeding on assumed facts rather than making express findings was undesirable, but it was not fatal. The case as ultimately advanced did not allege participation in the killings or the supply of weapons, and the Tribunal’s summary gave sufficient clarity. Its assessment was entitled to appellate respect.
5. Singh LJ dissented. He considered that the First-tier Tribunal had failed to apply the stringent compelling-circumstances test and had failed to determine the true gravity of the alleged conduct. He would have allowed the appeal and remitted the matter to the First-tier Tribunal.

• Court of Appeal (Civil Division): In [2018] EWCA Civ 1178, the majority dismissed the Secretary of State’s appeal. Singh LJ would have allowed it and remitted the matter.
• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal against the First-tier Tribunal was dismissed on 19 May 2016. The Tribunal held that the First-tier Tribunal’s findings supported its conclusion, although it did not endorse the terminology of redemption.
• First-tier Tribunal: The appeal was allowed on 2 July 2015 to the extent that the Secretary of State had failed to consider the long-residence claim under the Immigration Rules.