JR-2023-LON-001655

• Status of case: Unreported
• Hearing date: 19 Dec 2024
• Promulgation date: 3 Apr 2025
• Publication date: 9 Apr 2025
• Last updated on: 9 Apr 2025

The decision

JR-2023-LON-001655

In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review


In the matter of an application for Judicial Review


The King on the application of


MBT
(ANONYMITY ORDER MADE)



Applicant

and





THE SECRETARY OF STATE FOR THE HOME DEPARTMENT



Respondent

ORDER



BEFORE Mr Justice Dexter Dias and Upper Tribunal Judge Pinder

UPON the Tribunal having considered all documents lodged and having heard from Ms Weston KC and Ms Fathers of Counsel, instructed by Birnberg Peirce, for the Applicant and from Ms Anderson and Mr Wigg of Counsel, instructed by GLD, for the Respondent at a hearing on 18th and 19th December 2024,

AND UPON the Tribunal having handed down judgment on the Applicant’s judicial review application on 3rd April 2025,

AND UPON the Tribunal having considered the Applicant’s written submissions for permission to appeal to the Court of Appeal and costs as well as the Respondent’s written submissions on costs,


IT IS ORDERED THAT:

(1) The application pursued under Ground 1 is dismissed for the reasons in the attached judgment.

(2) The application pursued under Ground 2 is (i) dismissed for the reasons in the attached judgment insofar as it sought a declaration that the decision was irrational for failing to take account of all the claimed barriers to removal and (ii) allowed for the reasons in the attached judgment: it is declared that the taking into account by the Respondent in her decision of 3 May 2023 of the Applicant’s convictions in Tunisia made in absentia was irrational.

(3) The application pursued under Ground 3 is dismissed for the reasons in the attached judgment.

(4) The application pursued under Ground 4 is allowed for the reasons in the attached judgment and it is declared that the imposition of an in-person reporting condition on the Applicant by the Respondent in her decision of 3 May 2023 was irrational.

(5) The Applicant shall pay 70% of the reasonable costs of the Respondent to be subject to detailed assessment if not agreed, save for the Respondent’s costs associated with the Respondent’s adjournment application filed on 24th October 2024 including the directions hearing on 13th November 2024. The order for costs made against the Applicant is not to be enforced without permission of the Tribunal following an application under Section 26(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

(6) The Respondent shall pay the Applicant’s reasonable costs, to be subject to detailed assessment if not agreed, associated with responding to the Respondent’s adjournment application filed on 24th October 2024 including the directions hearing on 13th November 2024.

(7) There be a detailed assessment of the Applicant’s publicly funded costs.

(8) Permission to appeal is refused for the reasons set out below.

Reasons for the costs order
(1) The Applicant’s primary position is that that the Respondent should pay 50% of the Applicant's costs and vice versa, or alternatively that there should be no order as to costs. The Respondent seeks to recoup 75% of her reasonable costs.

(2) The Tribunal has exercised its discretion and applied the principles set out in CPR Part 44. The Applicant submits that the Respondent’s conduct throughout these proceedings justifies the costs order that he seeks. From the Tribunal’s judgment and the order made above, it is clear that the Respondent is to be regarded as the successful party overall. The Tribunal accepts however that the Respondent should be responsible for the Applicant’s costs in responding to her adjournment application considering she was not successful in securing the same and considering the timing of that application.

(3) The Applicant was successful in part under Ground 2 and fully under Ground 4. It is fair and reasonable therefore for the Respondent to bear her own costs proportionately to those issues, as she herself accepts. We do not however regard those issues, on a summary assessment, to amount to more than 30% of the Respondent’s overall costs. This is in light of the issues involved: narrow and much more self-contained than those raised under Grounds 1, 2(i) and 3, which were the main focus of the hearing and prior preparatory work. As addressed at paragraphs (5)-(6) of the order above, this is not to include the Respondent’s costs associated with the adjournment application.
Reasons for refusal of permission to appeal
(1) The Applicant pursues three grounds of permission to appeal to the Court of Appeal. Firstly, the Tribunal's conclusion on ground 1 (Article 8) was wrong in that it erred for:

a. misdirecting itself as to whether it could and should determine material human rights barriers to the Applicant's removability in this claim for judicial review;
b. failing to take into account material matters and erring in its approach to Article 8 issues arising (including rational connection to the legitimate aim, proportionality and/or fair balance);
c. misdirecting itself as to the meaning and effect of the medical evidence and/or adopted an interpretation of the medical evidence which was not rationally open to it;
d. failing to apply the approach to the Article 8 exercise set out by the Court of Appeal in MS & Anor v SSHD [2017] EWCA Civ 1190.

(2) Secondly the Applicant submits that the Tribunal erred in declining to determine for itself the question of the Applicant’s irremovability as part of the irrationality ground 2(i). Thirdly, the Tribunal's approach to the discrimination ground (ground 3) was wrong.

(3) Ground 1 is essentially a reiteration of the case pursued at the substantive hearing and previously in the earlier proceedings in 2019, particularly in respect of the issues falling to be considered under ‘gravity of conduct’.

(4) In circumstances where the Respondent has determined that the Applicant is not at present to be removed, it is not for this Tribunal to determine and make findings of fact on all of the reasons that may underpin why the Applicant cannot lawfully be removed at present. The Applicant did not, and has not, demonstrated that this is a justiciable issue and there are no real prospects of success in the Applicant arguing otherwise. This also applies to the Applicant’s second ground.

(5) The Tribunal’s summary of the legitimate aim of the policy referring to international law and foreign policy relations does not misstate the policy, as argued under Ground 1. Whilst the passage referred to in the judgment, including ‘a safe haven’, does not appear in the summary of the policy objectives at p.6 of the policy guidance, it is clear that the terms used are analogous and comparable. This is also indicated by the Court of Appeal’s summary at [118], [124] and [137] of MS & MBT and by the Respondent’s use of the terms at p.26 and p.36 of the policy.

(6) Turning to the Applicant’s third ground, he accepts that the submissions under Ground 3 are dependent on Ground 1, as was the case at the substantive hearing. The Applicant also notes that ‘repudiation’ of past conduct is only available to those who admit that conduct. In circumstances where the Applicant has been convicted of the conduct in question in France and did not seek this Tribunal to go behind that conviction, it is difficult to understand how the Applicant expects the Tribunal to have assessed whether he had “good evidence that (he has) repudiated his (…) past conduct” to use the words of Underhill LJ at [122] of MS & MBT. This is when the Applicant himself confirms he does not admit the conduct.

Signed: Sarah Pinder

Upper Tribunal Judge Pinder


Dated: 03.04.2025


The date on which this order was sent is given below


For completion by the Upper Tribunal Immigration and Asylum Chamber

Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 03/04/2025

Solicitors:
Ref No.
Home Office Ref:


Notification of appeal rights

A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.

A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).

If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).


Case No: JR-2023-LON-001655
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

3 April 2025

Before:

THE HON. MR JUSTICE DEXTER DIAS
UPPER TRIBUNAL JUDGE PINDER

- - - - - - - - - - - - - - - - - - - -

Between:

THE KING
(on the application of MBT)
(ANONYMITY ORDER MADE)
Applicant
- and -

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

- - - - - - - - - - - - - - - - - - - -

Ms A Weston KC and Ms J Fathers
(instructed by Birnberg Peirce), for the Applicant

Ms J Anderson and Mr L Wigg
(instructed by the Government Legal Department), for the Respondent

Hearing date: 18th and 19th December 2024

- - - - - - - - - - - - - - - - - - - -

J U D G M E N T

- - - - - - - - - - - - - - - - - - - -


Mr Justice Dexter Dias and Judge Pinder:

I. Introduction

1. This is the judgment of the court to which we have both contributed.

2. The applicant MBT applies for judicial review of the respondent’s decision dated 3 May 2023 to refuse to grant him Indefinite Leave to Remain (“ILR”) on a discretionary basis. The applicant is a Tunisian national, who has been living in the UK since his arrival on 13 May 1999, when he immediately claimed asylum.

3. The respondent Secretary of State for the Home Department refused the applicant’s asylum claim in July 2004 on the basis that he should be excluded from the protections provided by the Refugee Convention under article 1F. On 19 January 1998, the applicant was convicted in France along with 29 other Tunisian and Algerian nationals of terrorism-related offences, including the unauthorised possession and transportation of a firearm, unlawful entry into France, forgery of an official document and “association de malfaiteurs”. The applicant was sentenced to five years’ imprisonment, most of which had already been served while awaiting trial. The applicant was also excluded from France for a period of 10 years.

4. By the Secretary of State’s same decision in July 2004, the respondent granted the applicant a period of Discretionary Leave to Remain (“DLR”), which was subsequently extended upon the applicant’s applications. Following the implementation of the respondent’s Restricted Leave policy, further short grants of Restricted Leave to Remain (“RLR”) were granted to the applicant, the first of which was on 21 August 2013 for a period of six months. The most recent grant of RLR was for a period of 12 months and granted on 3 May 2023.

5. The applicant was represented by Ms Weston KC and Ms Fathers of counsel; the respondent by Ms Anderson and Mr Wigg of counsel. The court is grateful to all counsel and those who instruct them for their obvious industriousness and helpful submissions.

II. Procedural and Factual Background

Personal background

6. The applicant lives with a range of debilitating medical conditions. He suffers from symptomatic epilepsy, and has approximately two seizures each week, during which he experiences a lack of muscle tone, falls to the floor, and can lose consciousness and control of bodily functions. He has severe shoulder and back pain, which he experiences all the time. The shoulder pain is caused by a herniated disc in his cervical spine which dates to what has been described as a “very violent torture injury”. He can support himself when walking, but when doing so he has to hold his left arm very still in order to avoid jarring it and causing sudden pain to his left shoulder and neck. He has sciatic referral to the left leg, making walking and sitting painful and exhausting. He suffers from severe secondary headaches, which stem from numerous historical head injuries. His neck rotation is restricted to the left, even for short periods of time. He has high blood pressure and requires care and support to help him with his daily needs, such as washing and eating.

7. The applicant has been diagnosed as suffering from severe Psychiatric Disorder, satisfying the criteria for Post-Traumatic Stress Disorder but with the assessing expert preferring the diagnosis of Severe Chronic Traumatised State. He displays symptoms of flashbacks, intrusive memories, noise sensitivity, claustrophobia, nightmares, anxiety attacks, auditory hallucinations, sleeplessness, and panic attacks. These are attributable to the major catastrophic trauma arising from the detention and torture he experienced in Tunisia, and the very severe ongoing stress and uncertainty around the length of his residence and immigration status in this country. He displays symptoms of severe Depressive Disorder, experiencing pervasive feelings of despair, worthlessness, appetite and sleep disturbance, negative thoughts and very severe intrusive preoccupations, melancholic depressive ruminations, beliefs that he has destroyed other people's lives, suicidal ideation, self-harm, and depressive hallucinations. These factors are set out in the reports of Dr Bell, Consultant Psychiatrist, dated 18 April 2019, 22 September 2020 and 28 June 2022, and letters dated 1 August 2017 from Lucy Bracken, a Registered Osteopath with the Helen Bamber Foundation (“HBF”), and 3 November 2017 from Mark Fish, a Senior Psychotherapist, also with HBF.

Previous proceedings

8. The applicant has previously lodged, and been unsuccessful in, two other judicial review claims against the respondent’s earlier decisions to refuse him ILR and to grant him instead further periods of RLR with conditions. In those earlier claims, the applicant also sought to challenge the lawfulness of the respondent’s Restricted Leave policy (“RL policy”).

9. In a decision handed down on 4 September 2015, this Tribunal (Dove J and Upper Tribunal Judge Gill) dismissed the applicant’s judicial review application against the respondent’s decision of 21 August 2013 and the respondent’s policy (R (on the application of MS) v Secretary of State for the Home Department (excluded persons: Restrictive Leave policy) IJR [2015] UKUT 00539 (IAC)).

10. This judgment was also considered by the Court of Appeal on the applicant’s appeal. In a judgment handed down on 31 July 2017, the Court of Appeal dismissed the applicant’s appeal, and found that the RL policy - as it then existed - to be lawful (MS & Anor v The Secretary of State for the Home Department [2017] EWCA Civ 1190, [2018] 1 WLR 389 (“MS & MBT”)). Specifically, the Court of Appeal held that the RL policy, and its criteria for considering a grant of ILR, was, on the court’s interpretation, sufficiently flexible to be lawful in both article 8 and public law terms. The Court also gave authoritative guidance about the assessment of “exceptional circumstances” warranting a grant of ILR under the RL policy (see [119]-[123], and to which we shall return).

11. The applicant’s second judicial review application seeking to challenge the respondent’s decisions dated 31 August 2018 and 22 July 2019 was considered and dismissed by this Tribunal (Nichol J and Upper Tribunal Judge Stephen Smith) in R (on the application of MBT) v Secretary of State for the Home Department (restricted leave; ILR; disability discrimination) [2019] UKUT 00414 (IAC) (“MBT2”). The applicant’s second attempt at challenging the lawfulness of the policy itself was again unsuccessful.

12. As a result of the above and the comprehensive judgments handed down previously, we do not rehearse the procedural history and the factual background common to each set of proceedings any further and address these, where necessary, in the course of our judgment below.

The impugned decision

13. On 3 May 2023, in a decision headed “Grant of restricted leave” the respondent granted the applicant 12 months’ further leave with conditions stating:

“(i)t is considered that there has been an Article 3 ECHR risk to you in the past, and that this risk remains. It is considered that a further grant of Restricted Leave (RL) is appropriate, however the SSHD will continue to review the country situation until it becomes safe to remove you to Tunisia”.

14. Under the heading “ILR application” the decision stated as follows:

“32. You have requested that you are granted indefinite leave to remain outside the immigration rules. Your request for ILR has been considered under the restricted leave policy and the guidance established in MS, R (on the application of) v SSHD (excluded persons: Restricted Leave policy) (IJR) (2015) UKUT 539 (IAC) and MS v SSHD [2017] EWCA Civ 1190.

33. Migrants who are excluded from the Refugee Convention but who cannot be removed are not normally eligible for ILR. I have considered whether there are compelling circumstances in your case to justify departure from this general rule. In particular, I have considered your length of residence, gravity of the conduct that led to your exclusion and the extent to which you can be said to have changed to assess if your case is sufficiently exceptional to justify such a grant.

34. You have lived in the UK for twenty-four years. It is noted that there is no limit to the number of times that RL can be granted, and that length of residence in itself does not mean that you automatically qualify for ILR.

35. The gravity of your conduct of terrorist activities in France for which you were convicted and your admittance to being convicted in absentia for plotting to overthrow Tunisian government and smuggling arms is deemed to be serious.

36. I have considered the extent to which you have changed. You have stated in your representations that you have not been made aware of any further concerns by the SSHD about your character and conduct. You have no convictions in the UK. It is noted, however, that compliance with the law is the minimum standard of behaviour expected of anyone present in the UK.

37. It is noted that your wife and children are British citizens. It is also noted that you have provided evidence of numerous physical and mental illnesses.

38. It also noted that you have been considered for ILR in the past and this has been refused.

39. With all of the evidence considered, it is not the case at present that the only course reasonably open to the Secretary of State is to grant ILR in the UK. It is considered that your circumstances are not sufficiently compelling in order to justify a grant of ILR.

40. Therefore, it is not accepted that you should be granted ILR.”

15. There are separate sections in the respondent’s decision setting out her consideration of the applicant’s case under articles 3 and 8 ECHR. We have summarised these, as well as other relevant parts of the respondent’s decision, in further detail, where relevant in this judgment.

16. Permission to apply for judicial review was first granted to the applicant on the papers on 14 December 2023 on limited grounds (Ground 1 only – article 8 ECHR breaches). Following an oral renewal of the remaining grounds on 1 May 2024, the applicant was permitted to proceed on all grounds pursued. These are:

Ground 1: Breach of Article 8 ECHR in that the decision is a disproportionate interference with the applicant’s Article 8 rights including an unlawful failure to undertake a sufficiently individual and particularised assessment of the relevant factors in his case as set out in the judgment of Underhill LJ in MS & MBT;

Ground 2: Irrationality in that the decision-maker (i) failed to take into account relevant matters and took into account irrelevant matters and (ii) irrationally concluded that there is a realistic prospect of removal;

Ground 3: Unlawful discrimination whether through Article 14 taken with Article 8 or through the Equality Act 2010 (“EA 2010”);

Ground 4: Irrational imposition of an in-person reporting condition.

Respondent’s adjournment application

17. Following the oral permission hearing and the directions issued on 1 May 2024, the respondent applied for two extensions of time to file and serve her Detailed Grounds of Defence (“DGDs”). These were both granted and ultimately permitted her to lodge these by 9 August 2024.

18. On 7 August 2024, the respondent proposed a settlement to the applicant consisting of an agreement to reconsider her decision of 3 May 2023 and proposing that as a result, the applicant seek permission to withdraw his claim. This was disclosed by the respondent to this tribunal because such an agreement was not reached between the parties and the respondent subsequently applied for an adjournment of the substantive hearing. This application was opposed by the applicant and this was listed before Judge Pinder for determination on 12 November 2024.

19. In her application, the respondent accepted that a reconsideration of the relevant decision did not render the applicant’s claim academic but submitted that it was difficult to maintain an effective and meaningful trial since the respondent had agreed to reconsider her decision and a new decision was due to be taken in the applicant’s fresh application submitted on 2 May 2024. The respondent also confirmed that she wished to instruct her own medical expert and for the Foreign, Commonwealth and Development Office (“the FCDO”) to conduct a Safety on Return Assessment. These documents would then inform the respondent’s new decision-making. It was suggested that these proceedings could be adjourned to enable this. This would then also permit the applicant to amend his claim and grounds of challenge, if so advised, and for the respondent to file her DGDs thereafter.

20. This application was refused by Judge Pinder, who considered that it was not in accordance with the Overriding Objective and in the interests of justice to further delay this matter. The very nature of the RL policy, and the short grants of leave, meant that within the duration of a set of proceedings, an applicant will very likely need to seek to renew his leave, thereby entailing fresh decision-making from the respondent. This in itself would not ordinarily forego the need for, or the effectiveness of, a substantive hearing. It is well-established that so-called rolling judicial reviews ought to be avoided. Judge Pinder also considered that the applicant had relied on medical evidence that, prima facie, supported his claim that the uncertainty surrounding his status, was exacerbating his mental ill-health and a further delay ought to be avoided. No good reason had been given either to explain why the respondent had not case-managed the applicant’s fresh application in parallel, nor sought to otherwise progress matters with the evidence she sought to rely on and/or her DGDs since the various extensions of time had been granted to her.

21. At the directions hearing on 12 November 2024, the parties agreed for the respondent to file and serve her DGDs, and for these to stand as the respondent’s skeleton argument - there not being sufficient time for there to also be a sequential exchange of skeleton arguments in time for the hearing listed on 18 and 19 December 2024. It was also agreed that the applicant would then respond, if so advised, by way of a skeleton argument, instead of a formal Reply. Both of these documents were duly filed, as well as a trial bundle and a bundle of agreed authorities.

22. We confirm that we have considered these documents and bundles very carefully, together with a subsequent set of written submissions from the advocates. We heard oral submissions from both parties’ leading advocates, Ms Weston KC for the applicant and Ms Anderson for the respondent. We do not propose to recite these submissions at any length and instead deal with relevant aspects of the parties’ submissions when setting out our analysis and conclusions.

23. As briefly referred to above, while these proceedings have been pending, the grant of leave of 12 months issued to the applicant on 3 May 2023 ended on 3 May 2024. The applicant submitted an extension application on 2 May 2024, which remains pending under consideration. As a result, the applicant confirmed that he was no longer seeking relief in the form of a quashing or a mandatory order. This was, it was submitted by Ms Weston KC, also in light of the respondent’s agreement that her decision lacked ‘adequate particularisation’. The Applicant therefore seeks declaratory relief only, in respect of each of the grounds of challenge pursued.

24. The parties agreed that our determination of the declaratory relief sought will in turn assist to inform the respondent’s outstanding decision-making in respect of the applicant’s 2 May 2024 application. The applicant also seeks an award of damages in respect of the third ground pursued, namely that the respondent unlawfully discriminated against him contrary to articles 8 and 14 ECHR and/or contrary to the EA 2010.

III. Legal framework

25. It is common ground that section 3 of the Immigration Act 1971 (“the 1971 Act”) sets out the statutory basis for the respondent's discretion to grant leave to remain with or without conditions and “for a limited or for an indefinite period”.

Restricted Leave policy

26. The RL policy applies to those such as the applicant who are excluded from the protection of the Refugee Convention but who cannot be removed without breaching the UK’s obligations under the ECHR. The version in force at the date of decision stated the following, in so far as is relevant to this claim:

a. It is only in “exceptional circumstances” that those within the scope of the policy will be granted ILR, with such circumstances “likely to be rare”.

b. Nevertheless, all applications must be considered “on a case-by-case basis” by reference to all relevant factors and representations and matters identified by the Court of Appeal in MS & MBT. The policy is also clear that “in some cases a person might be able to show compelling circumstances justifying a departure from the general rule”.

c. Where restricted leave is imposed, it will “normally” be for six months, although the period may be longer if “justified by the particular circumstances of the case”.

d. Conditions may be imposed on leave if “justified by the particular circumstances of the case” and should be considered on a “case by case” basis, taking account of the respondent’s policy objectives.

e. All cases under the RL are subject to “active reviews” which includes the situation of the country of return but also with regards to other barriers to removal, including article 8.

f. There is a separate section on “disability”, which confirms that disabled persons are not precluded from the application of the policy. In deciding on the duration and conditions of leave, caseworkers must consider any known
factors that might cause real and unreasonable hardship for the person or have a detrimental effect on an existing health condition. This could include mobility or other health issues that could make it difficult for the individual to report in person on a regular basis or travel some distance. It should also take account of the effect that restricted leave might have on any pre-existing mental health condition. Where this is raised as an issue it will be important to have cogent, independent evidence of the harm that the duration and or conditions of restricted leave is causing.

Restricted Leave policy - Legitimate aim

27. The stated aims of the RL policy, which have remained consistent throughout its different iterations, are (in summary):

“Public interest: The public interest in maintaining the integrity of immigration control justifies frequent review of these cases with the intention of removing at the earliest opportunity. Therefore we want to ensure close contact and give a clear signal that the person should not become established in the UK. [Policy aim A]

Public protection: It is legitimate to impose conditions designed to ensure that UKBA is able to monitor where an individual lives and works and/or to prevent access to positions of influence or trust. [Policy aim B]

Upholding the rule of law internationally: The policy supports the principle that those excluded from refugee status, including war criminals, cannot establish a new life in the UK and supports our broader international obligations. It reinforces the message that our intention is to remove the individual from the UK as soon as is possible.” [Policy aim C]

28. For the purposes of Ground 1, and purely for analytical convenience, we name these Policy aims A-C.

29. The application of the RL policy is liable to interfere with the article 8 rights of the persons to whom it is applied, essentially because the conditions which it contemplates being imposed and the short duration of the grants of leave have the effect of placing obstacles in the way of the creation of private and family life: indeed that is part of their purpose, as noted in both Mayaya and Kardi - MS & MBT, [102].

30. There may come a point where an applicant has been in the United Kingdom for so long and/or the prospect of their removal from the UK is so remote, that the only course reasonably open to the Secretary of State is to grant them ILR (R (Kardi) v SSHD [2014] EWCA Civ 934, [32]; cited in MS & MBT, [45]).

Restricted Leave policy - Proportionality

31. The respondent is under an obligation under both the RL policy, and where applicable under article 8 ECHR, to ensure that the policy’s application is grounded in “a fact-sensitive and case-specific basis” – MS & MBT, [109].

32. At [119]-[123] in MS & MBT, Underhill LJ identifies the kinds of considerations and circumstances that might render a case “exceptional”, warranting a grant of ILR. Underhill LJ lists three specific considerations, whilst anticipating that such a list is not meant to be prescriptive. These are:

a. Length of residence in the UK — “in principle a particular case may become exceptional because of the length of time that the migrant has been here” – [120];
b. Gravity of the conduct leading to exclusion — [121];
c. Extent to which the individual has changed since the commission of the offence(s) that led to their exclusion from humanitarian protection – [122].

33. Reiterating the non-exhaustive nature of the considerations listed at [120]-[122], Underhill LJ added at [123] that there may be a variety of individual circumstances which may by themselves, or in combination with others, bring the case into the exceptional category. These may or may not relate to the private or family life of the migrant or others, and raise particular issues under article 8.

Restricted Leave policy - Standard of review

34. Where article 8 is engaged, the court or tribunal must “decide for itself whether those rights are infringed and accordingly to make the necessary judgement about proportionality (…). In striking the proportionality balance, so far as necessary, it will be important for the Court to bear in mind that the interference with private and family life in these cases is typically of a limited character: see paras. 108-109 above. The assessment is also likely to involve aspects on which particular respect must be paid to the judgement of the Secretary of State. In all cases involving terrorist offences, full weight must be accorded to her view that it is not in the public interest to allow this country to become a safe haven for terrorists and to any other, more specific, aspects of the case requiring a judgement on matters of national security or foreign relations. Particular respect should likewise be paid to any view she may express as to the public acceptability of the grant of ILR to migrants who have committed certain kinds of offending.” – MS & MBT [124].

Exclusion from the Refugee Convention

35. Since the applicant does not otherwise dispute that the RL policy applies to him, we do not set out any further details of the legal framework in so far as articles 1F (exclusion) and 33 (non-refoulement) of the Refugee Convention are concerned. These are also fully set out in this Tribunal’s judgment in MBT2 at [23]-[27] and [30-36].

European Convention on Human Rights

36. Article 8 of the ECHR, right to respect for private and family life, provides:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

37. Article 14 of the ECHR, prohibition against discrimination, provides:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Equality Act 2010

38. The EA 2010 prohibits discrimination, as defined, in the conduct of certain functions. Section 6(1) defines a person (‘P’) as having a disability if:

“(a) P has a physical or mental impairment, and
(b) that impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”

39. Section 15 provides for the prohibition of discrimination against the disabled person:

“(1) A person (A) discriminates against a disabled person (B) if–
(a) A treats B unfavourably because of something arising in consequence of B’s disability; and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.”

40. Section 20(3) imposes a duty to make reasonable adjustments:

“The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”

41. According to section 21(1), the word “substantial” in section 20(3) means “more than minor or trivial”. Section 21 provides that “A discriminates against a disabled person if A fails to comply with that duty in relation to that person.”

42. When considering whether a proposed adjustment to a provision, criterion or practice (“PCP”) is reasonable in any particular case, the Code of Practice on Services, Public Functions and Associations sets out at §7.30 that, “without intending to be exhaustive, ... some of the factors which might be taken into account” are:

“whether taking any particular steps would be effective in overcoming the substantial disadvantage that disabled people face in accessing the services in question; the extent to which it is practicable for the service provider to take the steps; the financial and other costs of making the adjustment; the extent of any disruption which taking the steps would cause; the extent of the service provider’s financial and other resources; the provider's amount of any resources already spent on making adjustments; and the availability of financial or other assistance.”

43. Section 29 prohibits service providers from engaging in discrimination. It provides where relevant:

“(1) A person (a “service-provider”) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.
(2) A service-provider (A) must not, in providing the service, discriminate against a person
(B) –
(a) as to the terms on which A provides the service to B;
(b) by terminating the provision of the service to B;
(c) by subjecting B to any other detriment.
(…)
(6) A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation.
(7) A duty to make reasonable adjustments applies to –
(a) a service-provider (and see also section 55(7));
(b) a person who exercises a public function that is not the provision of a service to the public or a section of the public.”

44. A public function is a function of a public nature for the purposes of the Human Rights Act 1998, section 31(4).

45. Section 136 of the EA 2010 provides so far as relevant as follows:

“(1) This section applies to any proceedings relating to a contravention of this Act .
(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.
(3) But subsection (2) does not apply if A shows that A did not contravene the provision.”

46. Paragraph 16 of Schedule 3 to the EA 2010 disapplies section 29 in relation to certain immigration functions carried out by service providers. Paragraph 16 provides (emphasis provided):

“(1) This paragraph applies in relation to disability discrimination.
(2) Section 29 does not apply to –
(a) a decision within sub-paragraph (3);
(b) anything done for the purposes of or in pursuance of a decision within that sub-paragraph.
(3) A decision is within this sub-paragraph if it is a decision (whether or not taken in accordance with immigration rules) to do any of the following on the ground that doing so is necessary for the public good. –
(a) to refuse entry clearance;
(b) to refuse leave to enter or remain in the United Kingdom;
(c) to cancel leave to enter or remain in the United Kingdom;
(d) to vary leave to enter or remain in the United Kingdom;
(e) to refuse an application to vary leave to enter or remain in the United Kingdom.
(4) Section 29 does not apply to –
(a) a decision taken, or guidance given, by the Secretary of State in connection with a decision within sub-paragraph (3);
(b) a decision taken in accordance with guidance given by the Secretary of State in connection with a decision within that subparagraph.”

IV. Analysis and conclusions

47. Before considering the applicant’s grounds of challenge in turn, we set out immediately below the areas, factual and legal, that were not in contention between both parties – some of which we have already recorded but repeat here for ease of reference:

(a) The applicant is disabled, for the purposes of the EA 2010;
(b) The applicant does not challenge the lawfulness of the RL policy, nor the fact that the policy has been applied to him;
(c) There are at present barriers to the applicant’s removal to Tunisia. This is reflected in the respondent’s decision of 3 May 2023 to grant the applicant 12 months’ RL and the respondent has not suggested otherwise at the time of the hearing.

Ground 1 – Article 8 ECHR

Does the Respondent’s refusal to grant the Applicant ILR engage the protections under article 8 ECHR?

48. We must first determine whether article 8 is engaged in relation to the decision of 3 May 2023 not to grant the applicant ILR. This was also the task of the Tribunal in MBT2 in 2019. The applicant submits that his and his family’s rights are so engaged, relying on the Tribunal’s finding to this effect in MBT2 at [83]. The reasons for this finding were the poor state of the applicant’s mental and physical health and the distinct and acute impact that the regular and repeated grants of RL were having upon him. The applicant submits that further time has passed, he has now been resident in the UK for over 25 years and the adverse impacts on his health continue. On his case therefore, article 8 is clearly engaged.

49. The respondent acknowledges the Tribunal’s finding in MBT2, but relies on the jurisprudence of the European Court of Human Rights (“the ECtHR”), which she states emphasises the absence of engagement of article 8(1) in the context of disputes concerning the particular form of leave which falls to be granted. The ECtHR stated in Ramadam v Malta (App No. 76136/12) (a case concerning the deprivation of Maltese Citizenship and the subsequent refusal to grant any form of leave after deprivation) as follows:

“91. The Court reiterates that neither Article 8 nor any other provision of the Convention can be construed as guaranteeing, as such, the right to a particular type of residence permit (see Kaftailova, cited above, § 51). If it allows the holder to reside within the territory of the host country and to exercise freely there the right to respect for his or her private and family life, the granting of such a permit represents in principle a sufficient measure to meet the requirements of that provision. In such cases, the Court is not empowered to rule on whether the individual concerned should be granted one particular legal status rather than another, that choice being a matter for the domestic authorities alone (see Sisojeva and Others, cited above, § 91; Aristimuño Mendizabal v. France, no. 51431/99, § 66, 17 January 2006; Dremlyuga v. Latvia (dec.), no. 66729/01, 29 April 2003; and Gribenko v. Latvia (dec.), no. 76878/01, 15 May 2003).”

50. We have considered the respondent’s submissions on this point very carefully and conclude that the respondent’s decision to refuse to grant the applicant ILR continues to engage his and his family’s rights under article 8 ECHR, as it had done in the earlier proceedings in MBT2. The passage cited above in Ramadan very clearly states that article 8 and the ECtHR’s jurisdiction do not guarantee a particular form of leave as long as the form of leave permitted by the national authorities ensures the person’s free exercise of the right to respect for their private and family life. This accords with many earlier ECtHR authorities, as noted at the end of the citation.

51. The above is no different to the conclusion reached by the Court of Appeal in Kardi and MS & MBT, as we discern from Underhill LJ’s consideration of the likely interferences in principle at [109] of MS & MBT:

“I agree both with this Court in Kardi and with the UT that the restrictions in question, though a real interference with private life, are not of a fundamental character. I do not under-estimate how unsettling it may be to be deprived – at least for a long period – of any certainty about the long-term future; but, as the facts of the present cases show, that uncertainty need not prevent migrants who are excluded but irremovable from marrying and having a family, from working or studying or developing the ordinary elements of a private life. Such a degree of interference is entirely proportionate to the legitimate aims of the Secretary of State's policy. (I should spell out, to avoid any misunderstanding, that that conclusion does not preclude the possibility of challenge to individual decisions taken under the policy. Such decisions need, as the UT says, to be taken on a fact-sensitive and case-specific basis.)”

52. As found by the Tribunal in MBT2 at [79], in many, if not most cases, a decision whether a person under the RL policy should be granted ILR is not likely to engage article 8 and interferences arising from such refusal are likely to be minimal, thus not engaging article 8. But that is not to say that there will not be case-specific situations where, due to the particular circumstances of the individual concerned, article 8 is engaged by an ILR refusal, and to maintain the application of the RL policy with grants of shorter periods of leave.

53. We do not understand the ECtHR’s guidance in Ramadan to interfere with this, nor do we understand the applicant to submit that any refusal to grant ILR to a person who is the subject of the RL policy would engage that person’s article 8 rights. Clearly, the ECtHR’s guidance cited above is premised on the form of leave allowing the holder to reside within the territory of the host country and to exercise freely there the right to respect for her or his private and family life. In such cases, the ECtHR’s jurisdiction does not extend to ruling on whether the individual concerned should be granted any specific legal status over another. It did not rule out the possibility that some individuals might be entitled to a different form of leave should they demonstrate that they could not otherwise freely exercise their rights under article 8. This is how we understand the Tribunal’s analysis to the same issue when drawing the analogy that it did with the ECtHR’s judgment in Jeunesse at [80]. The same can be said of the judgement in Ramadan.

54. For the reasons above, we are entirely satisfied that the decision of the respondent to refuse to grant ILR to the applicant engages his rights under article 8 ECHR. For the same reasons, we are also satisfied that the respondent’s decision interferes with the applicant’s rights and that the interference has consequences of such gravity so as to engage the operation of article 8. The applicant does not challenge the application of the RL policy to him and it has already been determined in the Higher Courts that the policy is lawful.

55. As is often the case therefore, the critical question is whether the respondent’s decision to refuse to grant the applicant ILR is a disproportionate interference with his article 8 rights. In policy terms, are there “compelling” and “exceptional” circumstances in the applicant’s case which ought to have justified a departure from the general rule and warranted a grant of ILR? This too was one of the questions asked of the Tribunal in MBT2 in 2019.

Proportionality

56. The parties were agreed that the four-stage test derived from Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 (“Bank Mellat”) grounded in Huang v Secretary of State for the Home Department [2007] UKHL 11 (“Huang”) represents the correct framework. This was recently considered by Singh LJ in Dalston Projects Ltd v Transport Secretary [2024] EWCA Civ 172:

“It is necessary to determine: (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right; (2) whether the measure is rationally connected to the objective; (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective; and (4) whether the measure’s contribution to the objective outweighs the effects on the rights of those to whom it applies. The fourth limb is sometimes referred to as the “fair balance” issue or “proportionality stricto sensu”, i.e. in the strict sense.”

57. Applying the above in the context of judicial reviews, Lord Sales JSC set out the court’s task in Director of Public Prosecutions v Ziegler and Others [2021] UKSC 23 (“Ziegler”). Ziegler was a public protest case where the court had to consider the question of proportionality of interference with articles 10 and 11. Lord Sales said at [130]:

“It is well established that on the question of proportionality the court is the primary decision-maker and, although it will have regard to and may afford a measure of respect to the balance of rights and interests struck by a public authority such as the police in assessing whether the test at stage (iv) is satisfied, it will not treat itself as bound by the decision of the public authority subject only to review according to the rationality standard: see A v Secretary of State for the Home Department [2005] 2 AC 68 (‘the Belmarsh case’), paras 40-42 and 44 (per Lord Bingham of Cornhill, with whom a majority of the nine member Appellate Committee agreed); Huang v Secretary of State for the Home Department [2007] 2 AC 167, para 11; R (SB) v Governors of Denbigh High School [2007] 1AC 100, paras 29-31 (Lord Bingham) and 68 (Lord Hoffmann); and R (Aguilar Quila) v Secretary of State for the Home Department [2012] 1 AC 621, paras 46 (Lord Wilson JSC), 61 (Baroness Hale of Richmond JSC) and 91 (Lord Brown of Eaton-under-Heywood JSC) (Lord Phillips of Worth Matravers PSC and Lord Clarke of Stone-cum-Ebony JSC agreed with Lord Wilson and Baroness Hale JJSC). This reflects the features that the Convention rights are free-standing rights enacted by Parliament to be policed by the courts, that they are in the form of rights which are enforced by the European Court of Human Rights on a substantive basis rather than purely as a matter of review according to a rationality standard, and that the question whether a measure is proportionate or not involves a more searching investigation than application of the rationality test. Thus, in relation to the test of proportionality stricto sensu, even if the relevant decision-maker has had regard to all relevant factors and has reached a decision which cannot be said to be irrational, it remains open to the court to conclude that the measure in question fails to strike a fair balance and is disproportionate.”

58. As already reviewed above, the Court of Appeal also held in MS & MBT at [124] that, where there is interference with a person’s article 8 rights, “the court is obliged to decide for itself whether those rights are infringed and accordingly to make the necessary judgement about proportionality”, with the due respect accorded to the respondent’s view on public interest matters as we cited more extensively above.

Applying the four-question approach

59. The applicant does not dispute that the policy is lawful and that the policy objectives are sufficiently important to justify the limitation of a protected right (question 1, legitimate aim). Similarly, that in principle, the measures generally available to the respondent under the RL policy are “rationally connected” to the objectives (question 2). The Court of Appeal held in MS & MBT at [107], drawing from Kardi at [29], that the policy aims are legitimate. Those aims have not changed since the policy was last considered by the Court of Appeal.

60. The vital and inescapable starting-point is that identified by Lord Bingham in R (SB) v Governors of Denbigh High School [2007] 1 AC 100. In his speech at para 30 he said:

“it is clear that the court's approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting… There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test… The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time... Proportionality must be judged objectively, by the court…”

61. This is a “hard-edged” test (R v Monopolies & Mergers Commission, ex parte South Yorkshire Transport Ltd [1993] 1 WLR 23, per Lord Mustill at 32D-F). This court must determine Convention breaches and objectively decide questions of proportionality, as explained by Lady Hale in R (Quila) v Secretary of State for the Home Department [2011] UKSC 45 at [61]:

“this Court will treat with appropriate respect the views taken by those whose primary responsibility it is to make the judgments in question. But those views cannot be decisive. Ultimately, it is for the court to decide whether or not the Convention rights have been breached: R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100; Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19, [2007] 1 WLR 1420.”

62. We think it right to restate clearly the relevant policy elements. They need careful consideration and should not be rolled up into a single undifferentiated bundle where the nuance may be lost.

63. On Policy aim A, there is the legitimate aim of removing the applicant at the earliest opportunity. Policy aim A also includes the intention to “give a clear signal” that the person should not become established in the UK, that is that the person is “not welcome”, and this is reinforced by Policy Aim C, where it is “reinforced” that the intention is to remove the person as soon as possible. All these policy aims are legitimate and their legitimacy is not challenged by the applicant before us. The court must examine the realities, and by granting indefinite leave one is effectively negating the “not welcome” legitimate aim. By granting ILR, the ”clear signal” must be seriously eroded as it must be granted following a conclusion that even if the applicant remains “not welcome” in the UK, the situation has moved on to the extent that he must be (perhaps begrudgingly) granted leave to settle. Nevertheless, it seems to us that in situations where a person convicted of serious terrorism offences has de facto established his private and family life in the UK, the respondent can still legitimately pursue the policy aim of indicating that the person remains unwelcome.

64. Of the four Ziegler/Bank Mellat “questions” (and recognising as we do the earlier exposition by Lord Bingham in Huang at [19]), we examine here the second question, rational connection. It is important to consider what it means. In Bank Mellat, Lord Reed in his often-cited dissenting judgment traced the origins of the concept of proportionality back to Aristotle’s Nicomachean Ethics (cf. Bank Mellat question 4 “fair balance” as Book 2 “middle state”) via Thomas Aquinas. He then fleshed out at para 92 what rational connection entails:

“In Lavigne v Ontario Public Service Employees Union [1991] 2 SCR 211, 291 Wilson J observed:

“The Oakes inquiry into ‘rational connection’ between objectives and means to attain them requires nothing more than showing that the legitimate and important goals of the legislature are logically furthered by the means government has chosen to adopt.”

The words “furthered by” point towards a causal test: a measure is rationally connected to its objective if its implementation can reasonably be expected to contribute towards the achievement of that objective. The manner in which the courts should determine whether that test is satisfied requires careful consideration.”

65. Lord Reed proceeded to remind the court of the cautionary words of Lord Neuberger MR, as he then was, in R (Sinclair Collis Ltd) v Secretary of State for Health [2011] EWCA Civ 437. The case concerned a ban on the sale of tobacco from vending machines. It was argued, in the context of the proportionality of the restriction on the free movement of goods under EU law, that the ban was not suitable to achieve the objective of reducing tobacco consumption, since tobacco products could still be bought over the counter. On this, Lord Reed observed at [94]:

“All the members of the Court of Appeal emphasised the responsibility of elected government for the protection of public health, and the consequent need to allow a broad margin of appreciation to the decision-maker. Lord Neuberger of Abbotsbury MR observed that, in considering whether the aim of the ban was achieved, “at least arguably and to some extent”, the court should be careful to avoid substituting itself for the decision-maker or being over-particular about the reasoning or evidence relied on by the decision-maker (paras 232-233).”

66. Therefore, the court must be careful to avoid impermissible judicial overreach in assessing the extent to which a legitimate aim has been achieved by an intrusive measure, without abdicating the responsibility to engage with the question. We recognise that the obstacles in the way of preventing the applicant’s establishing ties in the UK have largely not been effective. Despite the continuing legitimate aim of impeding the laying down of further roots in the UK, he has done so irrespective of the RLR grants. However, there remain the twin legitimate aims of (1) maintaining integrity in immigration control with a view of removing the applicant at the earliest opportunity and (2) the respondent continuing to clearly signal that the applicant as a person convicted of serious terrorism offences is not welcome in the UK. Therefore, while the refusal of ILR has not proved effective in obstructing the establishing of ties, a legitimate policy aim, it remains logically capable of impeding further roots being established when contrasted with the granting of ILR and the wide implications of settled status. Nevertheless, we cannot shut our eyes to reality: the refusal of ILR has now largely been robbed of its purpose of preventing the establishing of significant UK ties. To put it bluntly, that horse has bolted.

67. That said, there also remain the UK’s international obligations and standing. It is not disputed by the applicant that these legitimate aims remain operative and are furthered by a refusal of ILR, which signals that the UK is not a safe haven for those convicted of serious offences. Thus, the overall position is that one element of the policy objectives has not been effective, but the rest of the policy aims, relied upon by the respondent, remain in place. We judge that the implications are that continuing to refuse ILR remains rationally connected to a series of live and subsisting legitimate aims under the policy. We should add that we have considered less intrusive measures (Ziegler/Bank Mellat question 3), having received little material argument about this topic. It is difficult to envisage what less intrusive measures are available to the respondent to give effect or further the remaining legitimate aims.

68. Therefore, we now provide a balance sheet of factors on either side of grant and refusal of ILR, while starting with two factors we consider to be neutral.

Neutral factors:
• Established private/family life by the applicant in the UK rendering “obstacle” to settling aim largely ineffective
• The applicant’s Tunisian convictions

Factors in favour of a grant of ILR:
• Very protracted residence by the applicant in the UK, now amounting to 25 years
• No convictions in the UK throughout his residence here
• Significant health (physical and mental health) concerns of the applicant
• Recognised disability/ies of the applicant under EA 2010
• Dr Bell’s evidence that ILR genuinely needed to promote the applicant’s mental health recovery
• The applicant’s family is legitimately settled in UK (his wife has ILR, and his four children are British citizens)
• Continuing refusal of ILR has adverse impact on the applicant’s family life

Factors against such a grant:
• Legitimate aim: maintaining possibility of earliest removal opportunity and thus maintaining immigration controls
• Legitimate aim: signalling the applicant remains unwelcome in the UK
• Legitimate aim: upholding international law and foreign policy relations, including signalling that the UK is not to be viewed as a safe haven for serious offenders
• Gravity of conduct: serious terrorism convictions for the reasons given by this Tribunal in MBT2
• The applicant has never acknowledged or accepted his offending behaviour and his involvement in his terrorism convictions and therefore never remediated
• Difficult to quantify how much positive mental health contribution ILR grant will have based on Dr Bell’s evidence and incomplete factor analysis

Conclusion on Ground 1

69. The policy test is exceptionality. The legitimacy of this test is not challenged before us. Exceptionality by its definition is unquestionably a high hurdle and is designed to be. A compelling reason is required to depart from the general rule, which under the respondent’s RL policy is to refuse ILR grant. The determination of proportionality is not a review of the court below. It is the court’s independent, objective and autonomous assessment of proportionate or disproportionate interference with important rights protected under the Convention. The ultimate question is whether the interference with article 8 rights is disproportionate (or conversely necessary and proportionate) when assessed against the fair balance test (Ziegler/Bank Mellat question 4).

70. Resiling from the respondent’s consistent position of ILR refusal has wider negative implications for the UK’s international standing of not being a safe haven for people who commit acts of terrorism. A grant of ILR effectively ends the respondent’s ability to remove the applicant. It concedes that he has for all intents and purposes reached a point where he has become “welcome” in the UK despite his convictions for serious terrorism offences in the concrete and measurable sense of being granted settled status, however reluctantly granted. Such a conclusion cannot be viewed in artificial isolation from its wider international ramifications. It has the obvious capacity to affect the UK’s international standing and foreign relations with France, Tunisia and other nations in terms of how the UK is viewed. It is important to note, as we do, that the applicant has not offended in the UK over a period in excess of two decades. However, nor has he once accepted responsibility for his terrorism convictions. Expressing “condemnation” of violence in the abstract does not deal with this court being obliged to proceed on the basis that he is guilty of serious offences of terrorism which he has consistently refused to accept responsibility for. Risk is one thing; the international reputation of the nation another. The respondent is entitled to have regard to the applicant’s refusal of responsibility and lack of remediation. While a refusal of ILR and the grant of further RLR may adversely impact his mental health, we do not consider that the applicant has demonstrated that a grant of ILR will significantly improve his mental health. However, it is right to assess the likely impact on a person and affected relevant other people of a refusal, and we do. Against this, we have at the forefront of our thoughts the Court of Appeal’s guidance on exceptionality in MS & MBT. The “gravity of conduct” factor remains: this is serious terrorism-related criminality; while the applicant has not reoffended, nor has he accepted responsibility for his terrorism offending; and the Tribunal is obliged, as stated in terms by the Court of Appeal, to accord “full weight” to the policy objective of the UK not being a “safe haven” for terrorists. We are bound by this Court of Appeal guidance and while our application of it to the facts is a matter for our evaluation, we cannot disregard the overarching approach articulated by the Court of Appeal.

71. Therefore, having considered the matter carefully, and having reserved judgment to reflect seriously on these issues that are vital to the applicant, his family and the public, we cannot find that the interference with the applicant’s article 8 rights is disproportionate given all the adverse factors we have identified. Indeed, refusal of ILR remains at this time proportionate. We conclude that the adverse factors outweigh the factors in the applicant’s favour, emphasising that our analysis is iterative and holistic, examining all the factors not linearly, but in the context of all the others globally. We are driven to decide the fair balance question against the applicant and in favour of the respondent.

72. None of this precludes the possibility that at a future point – we decline to predict how soon - the applicant’s case may cross the threshold and become exceptional. But his terrorism offences are serious and have not been remediated. No doubt his future status in the UK will be a matter of anxious scrutiny by the Secretary of State, examining the wider implications of a grant of ILR for the UK’s international standing, a function chiefly, vitally and constitutionally conferred on her rather than this court in the recognised and enduring separation of powers.

Ground 2 – irrationality / failure to consider relevant matters

Removability

73. The applicant submits that the respondent’s decision to grant 12 months’ RL so that she can keep the applicant’s case under frequent review, with the intention or aim to effect his removal from the UK, is irrational. The respondent’s position is that removal remains a “priority” to be effected “at the earliest possibility” (paragraph 13 of the respondent’s decision, [164]).

74. The applicant submits that this position is inherently irrational because the prospects of the applicant’s removal are remote and this fails to take into consideration the barriers to removal beyond any risk of torture by state actors. The other barriers are the applicant’s article 3 ECHR health grounds and article 8 ECHR in respect of both the applicant’s private (including physical and moral integrity) and family life. The applicant highlights how each of those grounds would present a barrier to the applicant’s removal in his written and oral submissions. The applicant also stresses that his evidence on these issues has not been challenged by the respondent – this having been placed before the respondent as part of the applicant’s 2020 application. The applicant adds that there is no realistic prospect of these barriers lifting, or of otherwise becoming irrelevant, in the future.

75. As a result, the applicant maintains that no reasonable decision maker could conclude that removal is a serious prospect, even if the country conditions improve in Tunisia. Furthermore, that the respondent’s irrational conclusion to the contrary also impacted the required assessment of proportionality. To determine the above, the applicant invites this Tribunal to determine for itself whether article 3 (health risks) and article 8 prohibit the removal of the applicant to Tunisia. It is submitted that this falls under the Tribunal’s obligations under the ECHR, pursuant to section 6 of the Human Rights Act 1998 (“HRA 1998”).

76. The respondent confirms in conformity with the RL policy that the applicant’s removal remains a priority and is to be affected at the earliest opportunity. In accordance with the policy, she submits that leave was only being granted because the respondent accepted that the applicant could not be removed at the time of her decision. Crucially, she states, ILR was not refused on the basis of whether or not the applicant could be removed: if the applicant could never be removed it still does not follow, on the Respondent’s position, that he would have been granted ILR in 2023.

77. As we have already addressed under Ground 1 above, the decision to grant 12 months’ of RL to the applicant in order to maintain frequent reviews and a priority for the applicant’s removal, when and should this become feasible, is rationally connected to the respondent’s RL policy. On this basis therefore, we cannot agree that the respondent’s consideration at paragraph 13 of her decision is unreasonable in rationality terms. In the alternative, we do not consider that it is for this Tribunal to determine the prospects of the respondent removing the applicant. First, on the applicant’s article 3 ECHR claim, as far as the respondent’s decision under challenge and the respondent’s position within these proceedings are concerned, the applicant is not facing removal. His rights under article 3 ECHR, on expulsion or removal, are therefore not engaged. Whilst the applicant complains that he has been deprived of, or does not otherwise have, an opportunity to establish that his removal would be in breach of his rights under articles 3 and 8 ECHR - as a result of the respondent’s decisions not attracting a statutory right of appeal - this does not in itself extend the remit of our task within this judicial review since the UK’s obligations do not arise in light of the applicant not being removed.

78. The same can be said in respect of the applicant’s article 8 ECHR claim.

79. Lastly, no authority was relied upon by the applicant to support the submission that the respondent needs to consider and determine at the time of each decision she takes all of the bases raised with her why a person’s removal from the UK is not feasible. This is specifically in a context where the respondent is granting leave to an applicant. The respondent was satisfied that the risks on return for the applicant under article 3 ECHR remain. We do not consider thereafter that there is any support for ensuring that the respondent considers alternative or other reasons which would also prevent a person’s removal. The respondent is entitled to administer cases efficiently and in keeping with good administration. It is not for this court to set out any specific or alternate ways of doing so.

Gravity of Conduct

80. The applicant also submits that the respondent has taken into account irrelevant matters and failed to take account of relevant matters when assessing the gravity of the conduct leading to the applicant’s original exclusion: the respondent relied not only on the applicant’s conviction in France but also on his “admittance to being convicted in absentia for plotting to overthrow Tunisian government and smuggling arms”. This was then repeated in the respondent’s pre-action response.

81. The relevant passages of the respondent’s decision are as follows and appear under the headings of “duration of leave” and “ILR application” (our emphasis):

“14. It is noted that you are granted Restricted Leave because you are excluded from the Refugee Convention under Article 1F(c). You were convicted for terrorist activities in France and admitted to being convicted in absentia for plotting to overthrow Tunisian government and smuggling arms.
(…)
35. The gravity of your conduct of terrorist activities in France for which you were convicted and your admittance to being convicted in absentia for plotting to overthrow Tunisian government and smuggling arms is deemed to be serious.”

82. During the hearing, we understood Ms Anderson’s submissions to amount to an attempt to distance the respondent from her references to the applicant’s Tunisian convictions. Ms Anderson focused on the applicant’s admission of the same: the applicant had admitted to having received those convictions in absentia and this was merely being recorded by the respondent in those two passages as a fact. Ms Anderson’s submission was that the respondent had not taken the Tunisian convictions into account when deeming the applicant’s conduct to be serious.

83. We reject that submission. It cannot survive the explicit terms in which the decision was expressed. The second sentence in para 14 of the respondent’s decision immediately follows the reference to the applicant’s exclusion from the Refugee Convention. Read together, this clearly implies a causal connection and there is nothing included by the respondent there to distinguish, or otherwise separate, from this the reference to the Tunisian convictions. Even if we are wrong about this, the second reference at para 35 clearly adds the Tunisian convictions to the applicant’s conduct of terrorist activities in France and leads the respondent to assess that the gravity of conduct is serious.

84. Ms Weston KC informed us that the Tunisian convictions had not been raised in this way previously when the respondent issued the applicant with the earlier grants of RL. We do not have those previous decisions before us in evidence but have no reason to doubt counsel, nor was this disputed by the respondent.

85. Ms Weston relied on the respondent’s own guidance “Operational Guidance Note on Tunisia” of 2001 [authorities bundle, 1570]. This was not perfectly contemporaneous to the applicant’s Tunisian convictions but was close enough in time for the purposes of these proceedings and in light of the respondent’s position on this issue as summarised above. The Note documents the widespread repression and ill-treatment of political opponents to the Ben Ali regime. In light of the above, we are very surprised that, without more and without seeking to address her own background evidence, the respondent raised the issue of the applicant’s Tunisian convictions as a factor contributing to the gravity of the Applicant’s conduct, in so far as this justified the respondent’s position that the applicant had not demonstrated ‘compelling’ circumstances and in so far as this justified a refusal of ILR.

86. For the reasons above, we find that this aspect of the respondent’s decision is irrational.

Ground 3 – unlawful discrimination

87. With regards to the applicant’s case under the EA 2010, the applicant accepts that the ground pursued is entirely dependent on the outcome of Ground 1. In circumstances where we have found against the applicant and found the respondent’s decision to be necessary and proportionate (Bank Mellat/Ziegler limb 4 “fair balance”), para 16(3)(b) of Schedule 3 is therefore engaged in relation to such a decision and disapplies section 29 EA 2010 (the prohibition on service providers from engaging in discrimination).

88. The applicant has also argued that the manner in which the RL policy has been applied to him was discriminatory, contrary to article 14 ECHR read with article 8, with regards to his capability to demonstrate the extent to which he has changed.

89. For the reasons we have set out above under Ground 1, we are troubled with the applicant’s lack of acceptance of his past conduct. For the same reasons therefore, we do not agree that the respondent has discriminated against the applicant in expecting more from the applicant when stating in her decision that “compliance with the law is the minimum standard of behaviour expected of anyone present in the UK”.

90. In MBT2, the Tribunal agreed that it would be unreasonable, and therefore irrational, to expect substantial evidence of outward activities or reform because of the Applicant’s own individual circumstances and limitations ([115]-[116]). This continues to be relevant in these proceedings, but the respondent has not stated in her decision that she expects the applicant to evidence such activities.

91. Also relevant to these proceedings, is the applicant’s lack of expressed remorse and his failure to take responsibility for his offending in France. This was also considered by the Tribunal in MBT2, and before us the applicant’s position on this has not changed. The applicant’s written submissions to the respondent in support of his application set out the following:

“As previously submitted, our client accepts the gravity of the matters of which he was convicted in France, but as the Home Office is aware, he maintains his innocence of these matters. He maintains that he did not have access to a fair procedure in France and was unwilling to pursue an appeal in circumstances where this could have led to a longer period of imprisonment. He has always believed that political change must be brought about by peaceful and democratic means, as he confirms in his enclosed statement.”

92. The applicant also addressed this aspect of his case, in more detail but in the same terms, at paras 23-27 of his witness statement. In particular, the applicant stated that “(b)ecause (he) refute(s) the conviction (he) cannot express remorse for it, but (he) can and do(es) express condemnation of attempts to achieve political change through indiscriminate violence which kill civilians and destroys often scarce resources.”

93. The applicant’s refusal to accept responsibility continues to be a matter of concern and we do not consider therefore, for the reasons above, that the applicant’s situation amounts to one of being the victim of discrimination for the purposes of article 14 ECHR.

Ground 4 – irrational imposition of an in-person reporting condition

94. When issuing her decision and granting the applicant 12 months’ RL, the respondent also imposed a number of conditions attached to his leave to remain/permission to stay. These are detailed at paras 18-31 of the respondent’s decision ([165]-[167]) and include a residence, employment, study, reporting condition, and a DBS referral. The applicant only seeks to challenge the decision to impose a reporting condition.

95. The Respondent stated as follows in her decision to confirm the imposition of this condition (emphasis original):

“Reporting
27. The normal reporting frequency for Restricted Leave cases is once per month. However, in view of your medical circumstances, we are content for you to report once every three months. It is considered that this level of reporting is reasonable not only to maintain contact but to allow for your mental and physical state at the time of decision.

28. It remains open to you to seek a variation of this condition in writing with the reasons for the request as with all conditions attached to your leave. Therefore, if it does prove unduly onerous for you to comply with this condition at any stage during the period of RL then it can be varied accordingly. Consequently, it is considered proportionate and reasonable for the reporting condition to apply to your case.”

96. There is a presumption in the respondent’s RL policy that individuals subjected to it should be required to report. It assists to extract the relevant passages of the policy on the purpose of the condition, whether to impose one and if so, its frequency (authorities bundle, [1553]):

“This condition is designed to maintain contact with the person and to monitor compliance with other conditions. Contact management is a priority because these cases must remain under review for removal when possible. The precise frequency and location of the reporting event
will depend upon the following factors:

• the imminence of removal
• the perceived risk of absconding
• the need to maintain contact with the person to monitor compliance with
conditions
• the impact of the reporting requirement on the person taking into account:
o the location of the reporting centre
o physical and mental health
o domestic responsibilities, including the impact on any child who may be affected
o work

The frequency with which a person will be required to report will depend on the individual circumstances of the case. As a guide, monthly reporting should be considered the normal standard for restricted leave cases, but the appropriate period should be determined depending on the circumstances of each case. This frequency can also be increased or decreased in the light of changing circumstances, taking into account the factors specified above.
(…)
A person may apply for the condition to be varied, to take account of domestic or other commitments. Such requests must be considered in line with the overall aims of the policy and this guidance.”

97. The above extracts are also to be read in line with a separate section on ‘disability’ contained in the Respondent’s policy. This states as follows:

“Disability
The fact that a person has a disability (mental or physical) does not mean that they are necessarily incapable of engaging in, or having engaged in, the types of activities or behaviour that bring them within scope of the restricted leave policy.
Consequently, they are not precluded from the application of the policy. However, in deciding on the duration and conditions of leave, you must consider any known factors that might cause real and unreasonable hardship for the person or have a detrimental effect on an existing health condition. This could include mobility or other health issues that could make it difficult for the individual to report in person on a regular basis or travel some distance. It should also take account of the effect that restricted leave might have on any pre-existing mental health condition. Where this is raised as an issue it will be important to have cogent, independent evidence of the harm that the duration and or conditions of restricted leave is causing.”

98. As can be seen from the respondent’s decision at para 27 (extracted above), the respondent considered that a three-monthly reporting condition, in person, was reasonable. This was not only to maintain contact with the applicant but also to allow for the applicant’s “mental and physical state” at the time of decision.

99. The applicant in his 2020 application had expressly requested the respondent to consider permitting him to report by telephone. It was submitted that this would permit the respondent to maintain contact, as per the purpose of the policy and of the reporting condition, but would also reflect the applicant’s compliance to date: in the almost (then) seven years that the applicant has held RL, no concerns had been raised with the applicant’s compliance with previous reporting requirements. It was said that on the very few occasions that he had been unable to report, reasons had been provided. Furthermore, it was also submitted that the applicant’s reporting conditions had been suspended during the covid-19 pandemic in April 2020 and the respondent had managed that risk, if any, then.

100. The respondent was also reminded that the reporting centre was more than 12 miles away from the applicant’s home and that the journey and the event of needing to report in person caused the applicant severe difficulties. In this respect, the applicant’s statements were also relied upon. In summary, the difficulties are the distance, the need for the applicant to arrange for someone to drive him to the reporting centre, as he cannot drive himself as a result of his disabilities. Furthermore, even by car, the journey is stressful because the applicant is anxious about the risk of having a seizure whilst his friend is driving. It must be remembered that he experiences seizures every week.

101. In a context where the respondent has accepted that the applicant does not present a risk to national security and/or more widely to the public and in light of the applicant’s compliance to date, the applicant submits that the imposition of an in-person reporting requirement, in light of his specific difficulties, is irrational.

102. The respondent argues that this ground of challenge fails because the applicant has an alternative remedy, namely requesting for the reporting condition to be removed or varied. In the alternative, the respondent submits that the Court of Appeal refused in Kardi a challenge to conditions rejecting the submission that an absence of past problems meant that the imposition of reporting conditions was unnecessary. The respondent also points to the applicant’s past failures in challenging the reporting condition in the previous proceedings.

103. In circumstances where the applicant raised from the outset a request for the respondent to consider her discretion to impose a telephone reporting requirement only, we reject the respondent’s alternative remedy submission. If we are wrong in this respect, we also note that the applicant expressly raised this in pre-action correspondence and asked the respondent to consider removing this requirement ([376]-[377]). The respondent refused to do so and stated as follows ([370]):

“xviii) As set out in the May 2023 RL decision, the normal reporting frequency for RL cases is monthly. However, in view of your client’s medical circumstances, the SSHD is content for your client to report once every three months. It is considered that this reduced level of reporting is reasonable not only to maintain contact and takes into account your representations on reporting. It is not considered appropriate for the reporting restriction to be lifted completely as you have sought. Your client’s mental and physical condition is not such that he cannot report in person once every three months.

xix) As mentioned in the May 2023 RL decision it remains open to your client to seek a variation of this condition in writing setting out reasons in full for the request as with all conditions attached to your client’s leave. Therefore, if it does prove unduly onerous for your client to comply with this condition at any stage during the period of RL then it can be varied accordingly. Consequently, it is considered proportionate and reasonable for the reporting condition to apply to your client’s case.”

104. We did not understand there to be a specific method that an applicant is required to use in order to request a review and/or a variation of conditions. The quarterly reporting condition imposed in the respondent’s decision of 3 May 2023 represents the same frequency than that which was imposed in her previous decision in 2019 – see [20] of MBT2. The reason given at para 27 of her decision is also very bare. This does not reflect the respondent’s own guidance in the “disability” section of the policy. This stipulates that in deciding on the duration and conditions of leave, decision-makers must consider any known factors that might cause real and unreasonable hardship for the person or have a detrimental effect on an existing health condition. This could include mobility or other health issues that could make it difficult for the individual to report in person on a regular basis or travel some distance. This leads us to conclude that the respondent has failed to take into account relevant matters raised by the applicant.

105. Ms Anderson submitted that the applicant had not demonstrated that his circumstances had materially changed since MBT2 and the 2019 decision for the respondent to be satisfied that it would not be possible for him to report quarterly. We disagree.

106. First, the in-person reporting condition for the applicant was paused as a result of the pandemic. Whilst this was no doubt as a result of the public health restrictions then in place, there has been no suggestion that during this time, the applicant was not contactable or otherwise uncompliant or posed a risk of absconding.

107. Second, there is no indication that the respondent has given consideration in her decision to the alternative sought by the applicant and whether this lesser measure (a less intensive interference with Convention rights) could still meet the respondent’s objectives and concerns.

108. Third, the respondent instead appears to understand the applicant’s request as wishing for the reporting condition to be “lifted completely” – the terms used by the respondent in her pre-action response. This is incorrect, the applicant seeks instead a telephone or remote means of reporting.

109. Fourth, the passage relied upon by the respondent from Kardi at para 67 DGDs distinguishes the lack of specific difficulties advanced from the basis that was raised in Kardi, which was that a requirement was unnecessary. The applicant has not argued that a reporting requirement is unnecessary but rather, that an in-person requirement causes him real and unreasonable hardship, i.e. specific difficulties.

110. For the reasons above, we are satisfied that the respondent’s imposition of an in-person reporting condition was irrational (public law unreasonable) and failed to take relevant matters into account.

V. Disposal

111. In conclusion, our decision on the individual grounds is as follows:

Ground 1 DISMISSED.

Ground 2 (i) The application for a declaration that the respondent’s decision is irrational for failing to take into consideration the barriers to the applicant’s removal: DISMISSED.

(ii) The application for a declaration that the respondent’s decision is irrational for taking into consideration the applicant’s Tunisian criminal convictions in absentia: GRANTED.

Ground 3 DISMISSED.

Ground 4 The application for a declaration that the respondent’s imposition of an in-person reporting condition is irrational: GRANTED.

VI. Anonymity

112. There is no dispute between the parties as to the appropriateness of an anonymity direction in this case. Having full regard to the important principle of open justice, we conclude that a direction is indeed appropriate on the basis that the respondent accepts that there remains an article 3 ECHR risk to the applicant on removal.

VII. Consequentials

113. The parties are directed to agree an order to reflect the terms of this judgment. The order should address any consequential matters, including any application for permission to appeal and costs.

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