Secretary of State for the Home Department v G (Algeria)

The Restricted Leave Policy does not create a ten-year benchmark or entitlement to indefinite leave to remain. Duration of residence may be relevant to exceptional circumstances, but a substantially longer period would ordinarily be required before it became potentially decisive. Conditions may in principle operate as roadblocks to settlement where removal remains a real possibility. The decision-maker must nevertheless properly consider material evidence that repeated short periods of leave and restrictive conditions adversely affect an applicant’s mental health. Failure to do so may justify quashing the decision, even where the claimant’s principal legal argument fails. The appeal was dismissed, although the direction requiring reconsideration under the first-instance judgment was set aside.

The respondent, an Algerian national found by SIAC to have assisted terrorists, was effectively irremovable because removal to Algeria would breach article 3 of the European Convention on Human Rights. He was granted six months’ leave outside the Immigration Rules, subject to residence, employment, study and reporting conditions.

Collins J quashed the decision, holding in substance that the respondent was entitled to indefinite leave under the Restricted Leave Policy as construed in related proceedings, and that the conditions lacked justification. The Secretary of State appealed. The respondent relied on article 8 and on the principle that the decision should have been made under a published policy. The issues included the effect of the ten-year benchmark, the justification for the conditions, and whether the Secretary of State had properly considered the mental-health evidence.

1. Principal ground. Collins J erred by adopting the ten-year benchmark for indefinite leave to remain derived from his decision in the related case of R (MS (India)) v Secretary of State for the Home Department [2017] EWCA Civ 1190. That construction had been overturned by this Court. The correct policy approach does not create a ten-year entitlement. Duration of residence may be relevant to exceptional circumstances, but a substantially longer period would be required before it became potentially decisive.
2. Conditions. The challenge to Collins J’s finding that the conditions were unjustified was rejected. The Secretary of State did not challenge the finding that there was no risk of absconding. It was not shown that Collins J treated that as the only possible justification, or that he assumed an automatic entitlement to unrestricted employment or study. The justification for conditions imposed by the later decision had to be assessed on its own reasons and evidence.
3. Roadblocks to settlement. Kardi v Secretary of State for the Home Department [2014] EWCA Civ 934 recognised that restrictions may be justified where removal remains a real possibility. It also recognised that a point may come when the length of residence or remoteness of removal makes indefinite leave the only reasonable course. Whether that approach applied to the later decision was left to the Upper Tribunal.
4. Mental-health evidence. The original decision was nevertheless unlawful because the Secretary of State had failed properly to take into account evidence of the adverse effect of repeated short periods of leave and restrictive conditions on the respondent’s mental health. The error was material because proper consideration might have led to a longer period of leave or less restrictive conditions. The Court did not decide that indefinite leave was required or determine the wider article 8 arguments.
5. Other matters and disposal. The Court declined to decide definitively whether the reasoning in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 applied. It upheld the conclusion that the respondent’s SIAC findings justified treating his case as analogous to persons who would have been excluded under article 1F, in light of Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54. The appeal was dismissed, save that paragraph (2) of the order requiring reconsideration was set aside.

• Court of Appeal (Civil Division): The Court held that Collins J’s principal reasoning was erroneous because the ten-year benchmark had been overturned, but upheld the quashing of the decision on the narrower ground that relevant mental-health evidence had not been properly considered. The appeal was dismissed, save that the reconsideration direction was set aside.
• High Court (Queen’s Bench Division): Collins J quashed the Secretary of State’s decision of 8 January 2016, directed reconsideration of the application for indefinite leave to remain, and declared the residence-consent condition unlawful.