Babar v The Secretary of State for the Home Department

An applicant’s past commission of crimes against humanity does not create an absolute bar to indefinite leave to remain under paragraph 276B of the Immigration Rules. The listed public-interest factors must be assessed as a whole.

For a person excluded from the Refugee Convention but protected from removal by human rights law, however, the public interest in denying settlement is exceptionally strong. Indefinite leave requires truly compelling circumstances. Ordinary features such as lengthy blameless residence, a good work record and close family relationships do not normally meet that standard. Dishonesty in an application is a significant matter of character and conduct which must weigh heavily in the assessment.

The respondent, a Pakistani national and former police officer, had been excluded from the Refugee Convention because there were serious reasons for believing that he had participated in crimes against humanity. He nevertheless received restricted leave because his removal would expose him to treatment contrary to article 3 of the European Convention on Human Rights.

After more than ten years’ lawful residence, he applied for indefinite leave under paragraph 276B of the Immigration Rules. The First-tier Tribunal allowed his appeal against refusal. The Upper Tribunal upheld that result after concluding that his residence, family life, work history and lack of current risk made his case one of the very rare cases warranting settlement.

The Secretary of State appealed. The central issue was whether the Upper Tribunal had given proper weight to the public interest in denying settlement to a person excluded for serious international crimes.

1. Appeal allowed. Paragraph 276B(ii) of the Immigration Rules requires a sensible assessment of the listed considerations as a whole. The past commission of crimes against humanity does not inevitably preclude indefinite leave. Even in such a case, all relevant factors must be considered and may, in principle, disclose sufficiently compelling circumstances for settlement.

2. The Upper Tribunal failed to give proper weight to the powerful public interest in denying settlement to persons who had committed crimes against humanity. The United Kingdom should not become a safe haven for such persons. Protecting the integrity of the asylum system and permitting removal when human rights barriers cease to exist serve the international rule of law.

3. Following MS (India) v Secretary of State for the Home Department [2017] EWCA Civ 1190, the applicable policy required truly compelling circumstances before departing from the general rule against granting settlement to an excluded but irremovable person. The policy’s prediction that successful cases would be very rare did not create a separate test of exceptionality. The more generous observations in N, R (on the application of) v Secretary of State for the Home Department [2009] EWHC 1581 had to be read as applying only to exceptional facts.

4. The Upper Tribunal’s reliance on long residence, a good work record, close family relationships and the absence of subsequent offending did not satisfy that demanding standard. Such circumstances were not unusual in this class of case. If the Upper Tribunal had applied the correct standard, its conclusion was perverse, notwithstanding the appellate court’s proper reluctance to overturn evaluative decisions of an expert tribunal.

5. The respondent’s knowingly false claim that he feared returning to Pakistan was a significant matter of character and conduct. It should have weighed heavily under paragraph 276B(ii). The court left open whether the false representation also independently required refusal under paragraphs 276B(iii) and 322(1A), because that issue had not been properly raised or argued below.

6. The court declared that the respondent had no entitlement to indefinite leave to remain. His unresolved article 8 claim against removal was remitted to the Upper Tribunal.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was allowed. The court declared that the respondent had no entitlement to indefinite leave and remitted his unresolved article 8 claim to the Upper Tribunal.

2. Upper Tribunal (Immigration and Asylum Chamber): The Upper Tribunal upheld the grant of indefinite leave, concluding that the respondent’s circumstances made the case one of the very rare cases recognised by the applicable policy.

3. First-tier Tribunal: The tribunal allowed the respondent’s appeal under paragraph 276B of the Immigration Rules. It held that the positive considerations outweighed his conduct in Pakistan and did not determine the separate article 8 argument.