[A], R (on the application of) v Secretary of State for the Home Department

When deciding the length of restricted leave for a person excluded from refugee protection but presently irremovable, the Secretary of State must assess the prospect of future removal as part of the holistic question whether indefinite leave to remain should exceptionally be granted. A discharge from extradition proceedings does not, by itself, create a lasting bar to removal under the Immigration Acts. The Secretary of State must nevertheless take the extradition decision into account, with its weight depending on matters including its recency, reasoning, evidence and changed circumstances. A conclusion that future removal is anticipated must have an evidential and rational basis. Where a material public law error is established, relief may be withheld only if it is highly likely that the outcome would not have been substantially different.

The applicant, a Russian national excluded from the Refugee Convention under article 1F(b), had been granted successive periods of discretionary and restricted leave because removal to Russia was barred by the European Convention on Human Rights. He applied for indefinite leave to remain or, alternatively, longer restricted leave. The Secretary of State granted 12 months’ restricted leave, concluding that conditions in Russia were expected to change so that he could return safely.

He challenged that decision by judicial review. The principal issues were whether his earlier discharge from extradition proceedings prevented removal under the Immigration Acts, whether the Secretary of State had rationally assessed the future prospect of removal and the seriousness of his conduct, and whether any error was material.

1. Extradition and immigration powers. The applicant’s discharge from extradition proceedings did not itself prevent the Secretary of State from seeking removal under the Immigration Acts. The Extradition Act 2003 contains specific provisions giving certain immigration and protection decisions consequences in extradition proceedings, but no reciprocal provision barring immigration removal after discharge. The extradition decision brought the originating extradition request to an end and had to be taken into account, but conferred no lasting domestic or international status. Its weight would depend on factors such as recency, reasoning, evidential basis and subsequent change. Removal in changed circumstances would not necessarily circumvent the extradition decision or constitute an abuse of process.
2. Prospect of removal. The Secretary of State was entitled to read the decision as a whole and was not required to give elaborate reasons. However, the applicant had advanced a supported case that removal was not foreseeable, including expert evidence that political reform in Russia was not foreseeable. The conclusion that conditions would change to permit safe return was unsupported, unclear and unreasoned. It was therefore irrational and failed to engage adequately with material evidence.
3. Seriousness of conduct. The Secretary of State was not required to compare the applicant’s conduct with every reported exclusion case. It was sufficient to consider the earlier finding that his embezzlement of US $6 million was a serious non-political crime and the material relied upon in response.
4. Materiality and relief. The error affected the categorisation of the applicant’s case under the guidance in R (MS & MBT) v SSHD. It was not highly likely that the outcome would have been substantially the same had the error not occurred, applying section 31(2A) of the Senior Courts Act 1981 as applied by section 15(5A) of the Tribunals, Courts and Enforcement Act 2007. The decision was quashed. The application for indefinite leave to remain remained outstanding and had to be reconsidered lawfully.

• Administrative Court: Permission for judicial review was initially refused on the papers but was granted at an oral hearing before a Deputy High Court Judge.
• Upper Tribunal (Immigration and Asylum Chamber): The claim was transferred to the Upper Tribunal. The claim succeeded, the decision granting restricted leave was quashed, and no further relief was ordered.