W, R (On the Application Of) v Secretary of State for the Home Department

The claimant, an Algerian national held by SIAC to constitute a threat to national security, had been granted restricted leave to remain because SIAC had earlier found him excluded from the Refugee Convention (article 1F) while SIAC later found an article 3 barrier to removal. The claimant produced further evidence of significant intellectual deficits which a SIAC judge later said might have affected the earlier national security findings. The Secretary of State granted restricted leave twice but did not expressly consider that further evidence in the decision letters. The court held that the Secretary of State was obliged to take the further evidence about intellectual functioning into account when deciding whether to apply the Home Office restricted leave policy and that the failure to do so rendered both contested decisions unlawful.

The court quashed the 28 April 2016 decision and the 28 February 2018 decision and remitted the matter to the Secretary of State to reconsider the application of the restricted leave policy taking into account the further evidence of intellectual functioning. The court dismissed the claim for damages for false imprisonment and did not decide the discrimination/public sector equality duty claims because reconsideration by the Secretary of State would address the primary issue.

Background and parties: The claimant (W), an Algerian national with learning difficulties and a history of serious mental illness, was the subject of a SIAC open judgment of 14 May 2007 holding that he constituted a threat to national security. SIAC later (18 April 2016) found there were substantial grounds for believing return to Algeria would breach article 3 ECHR and the claimant therefore could not presently be removed. Following the 2016 SIAC judgment the Secretary of State granted the claimant restricted leave to remain (first decision, 28 April 2016) and later renewed that status (second decision, 28 February 2018). The claimant challenged both decisions by way of judicial review.

Nature of the application: (i) The claimant sought quashing of the Secretary of State's decisions granting restricted leave and an order that he be considered for some other form of leave, including indefinite leave to remain; (ii) he also advanced discrimination/EqA 2010 public sector equality duty claims and a claim for damages for false imprisonment arising from residence conditions; and (iii) he challenged the Secretary of State's failure to consider further evidence of the claimant's intellectual functioning (psychological and psychiatric evidence) which SIAC had earlier said might have affected the 2007 national security findings.

Procedural posture: Permission to apply for judicial review was granted on 21 February 2018. The case was heard following amendment of grounds and after the Court of Appeal judgment in Jollah impacted related points on conditions. The court dealt with all grounds at one hearing.

Issues framed: The court addressed: (a) whether the Secretary of State failed to undertake a particularised assessment or to consider relevant material (the further evidence about intellectual functioning) before applying the restricted leave policy; (b) whether the decisions were irrational; (c) whether there had been a failure to make reasonable adjustments or a breach of the public sector equality duty; (d) whether the residence condition constituted false imprisonment; and (e) whether there was an adequate alternative remedy (fresh claim and rule 353 certification) such that judicial review should be refused as a last resort.

Court's reasoning and disposition: (i) The court found that the Secretary of State relied on the 14 May 2007 SIAC open judgment to exclude the claimant from the Refugee Convention but had not given any reasoning explaining why the further evidence of intellectual functioning did not affect that reliance. The further evidence was material because SIAC had indicated it might have affected the earlier national security conclusion. (ii) The court held that the Secretary of State was obliged to consider that further evidence when deciding whether to apply the restricted leave policy; the absence of such consideration rendered the decisions unlawful. (iii) The court quashed both the 28 April 2016 decision and the 28 February 2018 decision and remitted the matter to the Secretary of State to reconsider the claimant's case in light of the further evidence. (iv) The court held that a fresh protection/human rights claim would not be an adequate alternative remedy because the Secretary of State could certify any fresh claim under rule 353 and because the claimant was entitled to a considered decision by the Secretary of State on the further evidence without needless procedural detours. (v) The discrimination/public sector equality duty claims were not determined because reconsideration would address the principal issue. (vi) The false imprisonment claim failed: the residence conditions (as imposed) did not amount to actual detention and there was no evidence that the claimant had been restrained in a way amounting to imprisonment.

Wider context: The judgment emphasises that restricted leave policy decisions must be made on the basis of all relevant material where further evidence might undermine the factual basis for exclusion from the Refugee Convention and that judicial review remains a remedy of last resort if adequate alternative procedures exist, but here the Secretary of State's direct reconsideration was the appropriate remedy.

The court allowed the claim in part. Both the 28 April 2016 decision granting restricted leave and the 28 February 2018 decision were quashed because the Secretary of State failed to take into account material further evidence about the claimant's intellectual functioning when applying the restricted leave policy; the matter is remitted to the Secretary of State for reconsideration taking that evidence into account. The claim for damages for false imprisonment was dismissed and discrimination/equality duty claims were not decided as they will be addressed, if necessary, on reconsideration.