Leave to remain - Claimants seeking indefinite leave to remain - Claimants convicted of serious offences in the UK

R (on the application of Mayaya and others) v Secretary of State for the Home Department: QBD (Admin) (Mr Justice Cranston): 25 November 2011

The instant proceedings concerned the secretary of state’s policy of granting leave to remain in the UK for foreign national prisoners, in particular to those prisoners who had committed an offence in the UK which was deemed serious but whose removal from the country would breach the European Convention on Human Rights.

The secretary of state’s policy on discretionary leave (the discretionary leave policy) was set out in the Asylum Policy Instructions and stipulated, among other things, that a person having committed a serious crime would not normally receive a grant of discretionary leave for a period exceeding six months, and while those who had been granted discretionary leave were ordinarily eligible for indefinite leave to remain after six years, those who had committed serious crimes could only obtain indefinite leave to remain after 10 years of discretionary leave to remain.

The first claimant, KM, came to the UK from the Democratic Republic of Congo. In 2005, he pleaded guilty to one count in respect of possession of a false passport and to another count of obtaining pecuniary advantage by deception. He was sentenced to a term of 18 months’ imprisonment. In November 2010, he was granted a period of six months’ discretionary leave. The secretary of state explained that he was excluded from a standard issue of discretionary leave by virtue of his criminal offence. In December, in a letter before claim, KM sought indefinite leave to remain or at least three years’ discretionary leave to remain. In February 2011, the secretary of state responded, confirming her earlier decision. KM applied for judicial review of the decisions of November 2010 and February 2011.

The second claimant, AO, was a Nigerian national. In November 1990, he entered the UK and was found in possession of heroin. He was convicted of importing a class A drug and sentenced to six and half years’ imprisonment, eventually reduced to four years’ imprisonment. In August 2009, AO’s application for indefinite leave to remain was rejected by the secretary of state but he was granted six months’ discretionary leave. In December, the secretary of state upheld her previous decision. In December 2010, the secretary of state granted AO three years’ discretionary leave. AO applied for judicial review of the decisions of August and December 2009 and December 2010.

The third claimant, H, was a citizen of Sierra Leone. In 1978 he entered the UK and was granted leave to enter for 12 months. In June 1990, he was convicted of murder and sentenced to life imprisonment. In September 2009, H was excluded from a full grant of discretionary leave in the light of his conviction and life sentence. H sought an explanation for the failure to grant him three years’ discretionary leave or indefinite leave to remain. In December, the secretary of state referred to the discretionary leave policy and confirmed that H could only apply for indefinite leave after he had completed a 10-year period of continuous discretionary leave. In December 2010, HE was granted three years’ discretionary leave to remain. He applied for judicial review of the decisions of September and December 2009 and December 2010.

KM submitted, among other things, that, the 10-year period stipulated in the discretionary leave policy constituted an unlawful fettering of discretion. AO and H similarly contended, inter alia, that the apparently mandatory requirement in the policy for 10 years’ discretionary leave before consideration of any grant of indefinite leave to remain was unlawful as being impermissibly rigid, arbitrary and a fettering of discretion.

The court ruled: At its highest the no-fettering principle meant that a person had to know what the relevant policy of a public authority entailed and had to be able to make submissions about its application in their individual case. The public authority then had to consider that case on its merits. The discretionary policy breached the no-fettering principle by suggesting that a person always had to have had at least 10 years’ discretionary leave to be granted indefinite leave to remain. The exclusion policy read as barring the secretary of state from considering applications for indefinite leave to remain from those who were in the exclusion categories before the 10 years had elapsed. That applications would be considered in the light of the circumstances at the time conferred a flexibility, but that was not addressed to the 10-year wait (see [46], [53], [69] of the judgment).

In KM’s case, it was not until August 2011, that the secretary of state had finally engaged with the case being advanced on KM’s behalf. The earlier letters of November 2010 and February 2011 had not addressed the arguments but simply applied the policy in a rigid manner. If she had considered KM’s case, she might well have rejected it. However, the crucial point was that the secretary of state had not considered KM’s or any of the contrary arguments. In doing so her decisions had been flawed because she had failed to exercise her discretion.

The early letters regarding AO and H were also flawed. In KM’s case, the two decision letters of November 2010 and February 2011 were flawed; in AO’s case, those of August and December 2009; and in H’s case, those of September and December 2009 (see [53], [62], [69] of the judgment). R (on the application of Lumba) v Secretary of State for the Home Department; R (on the application of Mighty) v same [2011] 4 All ER 1 applied.

Laura Dubinsky for KM; Ranjiv Kubber for AO and HE; Chris Bourne (instructed by the Treasury Solicitor) for the secretary of state.