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

Where the Secretary of State applies a restricted-leave policy based on an earlier exclusion from refugee protection, relevant later evidence bearing on that exclusion must be considered. Reliance on an earlier judicial finding is permissible, but the decision-maker must explain why material evidence does not alter the assessment.

A proposed fresh protection or human rights claim is not necessarily an adequate alternative remedy where it may be certified as not being a fresh claim and would not directly determine whether restricted leave should apply.

A residence condition does not amount to false imprisonment unless it imposes an actual unlawful detention or restraint on freedom of movement. A limited obligation to spend nights at a specified address, with permitted absences and possible consent to further absences, did not do so on the evidence.

The claimant, an Algerian national, had been found by the Special Immigration Appeals Commission to present a national security risk and to be excluded from refugee protection. His removal to Algeria was barred by the real risk of treatment contrary to article 3 of the European Convention on Human Rights.

The Secretary of State consequently granted restricted leave to remain in 2016 and 2018, subject to conditions. The claimant argued that the decisions failed to consider later psychiatric, psychological and educational evidence concerning his intellectual functioning, breached equality obligations, and imposed a residence condition amounting to false imprisonment.

The principal issues were whether the decisions were unlawful for failure to consider relevant evidence, whether an alternative remedy was adequate, and whether the residence condition constituted false imprisonment.

1. Failure to consider relevant evidence. The Secretary of State’s decision letters relied on the 2007 SIAC findings but did not engage with later evidence of the claimant’s intellectual deficits or with the 2013 judicial observation that the earlier conclusion might have been different had that evidence been known. That evidence might have affected whether the claimant was excluded from refugee protection, including whether he had been an innocent dupe. The Secretary of State was therefore not entitled to leave it out of account.
2. Remedy. Both decisions remained relevant because they imposed the restricted-leave policy, which continued to apply. A fresh protection or human rights claim was not an adequate alternative remedy. It might be certified as not amounting to a fresh claim, causing further proceedings, and it would not necessarily produce the required decision on the application of the restricted-leave policy. The first decision was quashed, permission was granted in relation to the second decision, and the second decision was also quashed and remitted to the Secretary of State for reconsideration in light of the further evidence.
3. Equality claims. It was unnecessary and undesirable to determine the discrimination and public sector equality duty claims because the Secretary of State had first to reconsider whether the policy applied in light of the intellectual-functioning evidence.
4. False imprisonment. False imprisonment requires an unlawful imposition of restraint amounting to detention. The residence condition required the claimant to spend nights at a specified address, but allowed absences of up to three consecutive nights and ten nights in six months, with provision for further consent. There was no evidence that the claimant had wanted to spend additional nights away or that the conditions had affected him. The damages claim was dismissed.
5. No order for disclosure was made because it was unnecessary for the fair disposal of the claim.

Not stated in the judgment.