Secretary of State for the Home Department v G (Algeria), Court of Appeal - Civil Division, November 08, 2018, [2018] EWCA Civ 2493

Resolution Date:November 08, 2018
Issuing Organization:Civil Division
Actores:Secretary of State for the Home Department v G (Algeria)
 
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Case No: C4/2017/0193

Neutral Citation Number: [2018] EWCA Civ 2493

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT (QUEEN'S BENCH DIVISION)

Collins J

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 08/11/2018

Before :

LORD JUSTICE UNDERHILL

(Vice-President of the Court of Appeal (Civil Division))

LORD JUSTICE BEAN

and

LORD JUSTICE NEWEY

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Between :

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Ms Julie Anderson (instructed by the Treasury Solicitor) for the Appellant

Ms Charlotte Kilroy (instructed by Birnberg Peirce Ltd) for the Respondent

Hearing dates: 17th & 18th July 2018

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JudgmentUnderhill LJ:

INTRODUCTION

  1. The Respondent to this appeal, who is the Claimant in the underlying proceedings, is an Algerian national, now aged 49. He came to this country in August 1995 and claimed asylum, which was refused in September 1997. His immigration history thereafter is complicated, but for the purposes of the issues before us the only elements that I need mention prior to the making of the application which gives rise to these proceedings are as follows:

    (a) On 18 December 2001 the Secretary of State certified, pursuant to section 21 of the Anti-Terrorism, Crime and Security Act 2001, that he believed that the Claimant was a risk to national security and that he suspected that he was a terrorist; he made an order for his deportation.

    (b) On 29 October 2003 the Special Immigration Appeals Commission (``SIAC''), chaired by Collins J, dismissed the Claimant's appeal against the making of the certificate and against deportation. It expressly found that he had actively assisted terrorists linked to Al Qaeda and was a risk to national security.

    (c) On 8 February 2007 SIAC, chaired by Stanley Burnton J, dismissed an appeal against a further deportation order. It noted that the Claimant had not challenged the 2003 finding but it nevertheless reviewed the evidence and expressly accepted that the finding had been correct.

    (d) Between 2009 and 2013 there were a series of hearings in SIAC, all chaired by Mitting J. In his judgments, most particularly in 2013, he held that the Claimant had for many years had no involvement in terrorist activities.

    (e) The Secretary of State's attempts to deport the Claimant were finally stymied, after considerable litigation involving not only him but a number of other Algerians, by the decision of this Court in BB v Secretary of State for the Home Department [2013] EWCA Civ 9, and the decisions of SIAC of 25 January 2013 and 18 April 2016, that, in the absence of assurances which it is accepted will not be forthcoming in the foreseeable future, their return to Algeria would be in breach of their rights under article 3 of the European Convention on Human Rights. He is thus effectively irremovable.

    (f) In June 2013 the Claimant was granted restricted leave to remain, subject to conditions, for a period of six months. He was granted a further such period, with the same conditions, in February 2015. The decision was justified by reference to the Secretary of State's Restricted Leave Policy (``the RLP''). It was challenged by judicial review on the basis that as it then stood the RLP by its terms applied only to applicants who had been excluded from asylum under article 1F of the Refugee Convention, which the Claimant had not. The Secretary of State accepted that that was so and withdrew the decision.

  2. In 1999 the Claimant married a French national. They have four children. As a result of childhood polio he has for many years been confined to a wheelchair. He also suffers from serious mental ill-health: he has in the past been diagnosed as suffering from a major depressive disorder with psychotic symptoms.

  3. On 19 August 2015, pending the outcome of his challenge to the February decision, the Claimant applied for further leave to remain. His primary position was that he should be granted indefinite leave to remain (``ILR''), but in the alternative he sought unconditional discretionary leave for a period of at least two and a half years. On 11 December 2015 the Secretary of State granted him six months' leave outside the Rules (so-called ``LOTR''), with conditions, but as a result of a blunder which has never been explained or apologised for the decision referred to a criminal offence which the Claimant was mistakenly said to have committed; and the decision had to be withdrawn.

  4. On 8 January 2016 the Secretary of State made the decision which gives rise to the present proceedings, namely to grant LOTR for six months, subject to the following conditions (in summary):

    · to reside at his current address and seek the Secretary of State's consent to any change; and ``to seek prior written consent if he seeks to spend more than three consecutive nights, or 10 nights in any rolling six month period, away from his residence'';

    · not to be employed or be engaged in any business without the Secretary of State's consent;

    · not to enrol on any course of study without the Secretary of State's consent;

    · to report monthly to an immigration reporting centre.

  5. On 7 April 2016 the Claimant commenced judicial review proceedings in the High Court challenging the lawfulness of the decision of 8 January.

  6. The Claimant's claim was heard by Collins J on 15 and 16 November 2016. It was heard the week before a separate claim also concerning a grant of limited leave to a claimant with a history of involvement in terrorism - MS v Secretary of State for the Home Department (generally now known as ``MS2'', to distinguish it from separate Upper Tribunal proceedings involving the same claimant). Collins J handed down judgment in MS2 on 9 December and in the present case on 16 December. In both cases he held that the Secretary of State's decision was unlawful: much of his reasoning was common to both and his judgment in this case cross-refers to his judgment in MS2. His order in this case (not finalised until 12 January 2017), reads, so far as material, as follows:

    ``(1) The decision of the defendant dated 8 January 2016 to be quashed.

    (2) The defendant must reconsider the application by the claimant for indefinite leave to remain in accordance with the judgment herein.

    (3) It is declared that the condition requiring the consent of the defendant if the claimant wished to leave his residence for specified periods is unlawful.''

  7. The Secretary of State appealed against Collins J's decision in both this case and MS2. The appeal in MS2 was allowed: see R (MS (India)) v Secretary of State for the Home Department [2017] EWCA Civ 1190, [2018] 1 WLR 389. The present appeal was stayed to await the outcome in MS2.

  8. This is the Secretary of State's appeal against Collins J's decision, though there is also a Respondent's Notice from the Claimant seeking to uphold it on different grounds. The Secretary of State has been represented before us by Ms Julie Anderson. The Claimant has been represented by Ms Charlotte Kilroy. Both counsel also appeared below.

    SUBSEQUENT DEVELOPMENTS

  9. Even apart from the allowing of the appeal in MS2, events have moved on since Collins J's decision.

  10. The six months' leave granted to the Claimant by the decision of 8 January 2016 expired on 8 July. On 7 July he made an application for further leave in broadly, though not entirely, the same terms as his application of 19 August 2015. The Secretary of State did not respond for over eighteen months, and during that interval the RLP was revised, among other things so as to cover not only individuals excluded under article 1F but those who would have been excluded if they had made a protection claim (thus filling the lacuna referred to at para. 1 (f) above).

  11. On 23 March 2018 the Secretary of State made a decision granting the Claimant two years' restricted leave, subject to conditions. The conditions cover the same heads as those in the previous leave but they are not identical. In particular, he is required only to notify the Secretary of State of any change of address, rather than to seek his consent; the condition requiring him to seek consent if he was going to be away from home for more than the specified periods was abandoned; and the obligation to report is now only every three months instead of monthly. The Claimant has commenced judicial review proceedings in the Upper Tribunal in respect of that decision, but they have been stayed pending the outcome of this appeal.

  12. The fact that a further decision has now been made and challenged means that, even if Collins J was right to hold that the original decision was flawed and fell to be quashed, as per paragraph (1) of his order, it is pointless to order that the decision now be re-taken, as per paragraph (2). But neither party suggested that it followed that the present appeal did not have to be decided, and there was wide-ranging argument before us. However, since the lawfulness of the decision of 8 January 2016 as such is now of historic interest only I do not believe that it is necessary to consider the full range of the points argued before us. While I think we are obliged to decide whether the decision of 8 January 2016 fell to be quashed, I do not propose to go beyond what is strictly necessary for that purpose except where doing so may be of assistance to the Upper Tribunal in the pending proceedings. In that regard, however, I should also make it plain that I am not to be taken to be expressing any view on the lawfulness of that decision, which was not in issue before us. Although there are inevitably areas of overlap, it is a different decision, taken over two years after the decision with which we are concerned and under the revised RLP, and we were not addressed directly about it.

    THE APPLICABLE LAW

  13. It is unnecessary for the purpose of this appeal that I set out the underlying statutory...

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