MBT, R (on the application of) v The Secretary of State for the Home Department

A refusal of indefinite leave to remain under the restricted leave policy does not normally engage article 8 of the European Convention on Human Rights. It may do so where repeated grants of restricted leave have a distinct and acute effect on the individual’s physical or mental health.

Where article 8 is engaged, proportionality is intensely fact-specific. The Secretary of State’s assessment of the public interest, including the prevention of the United Kingdom becoming a safe haven for those excluded from refugee protection, attracts substantial weight.

Twenty years’ residence under paragraph 276ADE(1)(iii) of the Immigration Rules leads only to limited leave. Read with paragraph 276DE, it requires 30 years’ residence before settlement may be available.

The applicant, a Tunisian national excluded from refugee protection because of French terrorism-related convictions, could not presently be removed to Tunisia because of the accepted risk of mistreatment. He had lived in the United Kingdom for over 20 years and suffered serious physical and mental health conditions.

In 2018 and 2019 the Secretary of State refused his applications for indefinite leave to remain and instead granted restricted leave. The 2019 decision granted 12 months’ leave, rather than the usual six months, and reduced reporting requirements in light of medical evidence.

The applicant sought judicial review. He alleged breaches of article 8 and article 14 of the European Convention on Human Rights, irrationality, breach of the Equality Act 2010, and a failure to investigate risk on return. The central issue was whether refusal of indefinite leave was unlawful in the circumstances.

1. The application was dismissed. The challenge to the expired 2018 decision was academic. Permission was granted on the article 8 ground concerning the 2019 decision, but judicial review was refused; permission was refused on the remaining grounds.

2. A refusal of indefinite leave under the restricted leave policy does not ordinarily engage article 8. It is nevertheless capable of doing so in an appropriate case. The applicant’s severe health conditions, the acute effect of repeated short grants of leave, and his lengthy residence engaged article 8 in relation to the refusal of settlement.

3. The Tribunal applied the five-stage approach in Razgar [2004] UKHL 27. The interference was lawful and pursued legitimate immigration-control, public-protection and international-rule-of-law objectives. Applying the criteria in the earlier Court of Appeal proceedings, the refusal was proportionate. The applicant’s residence was materially short of the 30 years normally required for settlement following initially unlawful residence. His serious offending and absence of remorse weighed heavily against settlement. His children’s interests only marginally favoured indefinite leave, since he was not being removed.

4. The Secretary of State had considered the medical evidence and adapted the normal policy by granting longer leave with reduced reporting. The evidence did not establish that indefinite leave was the only means of protecting the applicant’s health. The Secretary of State’s assessment of the public interest attracted substantial weight.

5. Paragraph 16 of Schedule 3 to the Equality Act 2010 disapplied section 29 in relation to the refusal of indefinite leave and the connected grant of restricted leave. Section 15 created no free-standing duty. Section 149(1)(a) was correspondingly inapplicable, while the policy’s flexibility and its tailored application met any relevant duties under section 149(1)(b) and (c). There was no unequal treatment for article 14 purposes.

• Upper Tribunal (Immigration and Asylum Chamber): An earlier challenge to refusal of indefinite leave and to the restricted leave policy was dismissed in R (on the application of MS) v Secretary of State for the Home Department (excluded persons: Restrictive Leave policy) IJR [2015] UKUT 00539 (IAC).
• Court of Appeal: The appeal from that decision was dismissed in MS (India) and MT (Tunisia) v Secretary of State for the Home Department [2017] EWCA Civ 1190.
• Upper Tribunal (Immigration and Asylum Chamber): In the present judicial-review proceedings, the Tribunal dismissed the challenge to the 2018 and 2019 restricted-leave decisions.