Tribunal decisions

The decision

JR-2025-LON-001564
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

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

ORDER

BEFORE Upper Tribunal Judge Landes

UPON the Respondent having agreed to reconsider her decision dated 20 February 2025,
AND UPON the parties having agreed that it is therefore unnecessary for the Tribunal to consider the Applicant’s grounds (ii) and (iii),
AND UPON THE Applicant inviting the Tribunal to determine her ground (i),
HAVING considered all documents lodged and having heard Mr Alasdair Mackenzie of Counsel, instructed by Islington Law Centre, for the Applicant and Mr Jonathan Swain of Counsel, instructed by GLD, for the Respondent at a hearing on 28 November 2025,

IT IS ORDERED THAT:

(1) The application for judicial review is dismissed on ground (i) for the reasons in the attached judgment.

(2) Save as provided for at (3) below, there be no order for costs.

(3) There shall be detailed assessment of the Applicant’s publicly funded costs in accordance with the Civil Legal Aid (Remuneration) Regulations 2013.

(4) Permission to appeal is refused. No application was made and there is no arguable error of law in my decision.

Signed: A-R Landes

Upper Tribunal Judge Landes

Dated: 10 March 2026

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): 10/03/2026

Solicitors: Islington Law Centre
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-2025-LON-001564
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

10 March 2026
Before:

UPPER TRIBUNAL JUDGE LANDES

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Between:

THE KING
on the application of
MBT
(Anonymity Order made)
Applicant
- and -

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- - - - - - - - - - - - - - - - - - - -

Mr A Mackenzie
(instructed by Islington Law Centre), for the applicant

Mr J Swain
(instructed by the Government Legal Department) for the respondent

Hearing date: 28 November 2025

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

J U D G M E N T

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

Judge Landes:

1. The applicant, MBT, seeks judicial review of the respondent’s decision of 20 February 2025 (the fourth decision made on her application of 29 April 2024 on the settlement protection route) refusing her indefinite leave to remain in the UK (“ILR”) on the settlement protection route (on suitability grounds due to past criminality) but granting her 30 months’ permission to stay on the protection route.

2. As the respondent has offered to reconsider her decision, from the applicant’s perspective the remaining issue is whether the respondent’s refusal to grant ILR to the applicant breached her rights under Article 8 ECHR (because of the damage caused to her mental health or the interference with her ability to recover) and therefore whether the respondent should be required to grant her ILR. The respondent’s primary case is that the matter is academic due to the offer of reconsideration, but the respondent also says that the applicant’s Article 8 rights do not require that she should be granted ILR.

Background

3. The applicant MBT is a citizen of Ghana, now aged 46. She came to the UK with her mother and sister at the age of 3 or 4 and has lived in the UK ever since. The applicant had a very difficult upbringing, suffering child abuse, neglect and drug addiction and becoming pregnant at a young age. Her first child died as a baby; she has no current contact with her second child and her third and fourth children were adopted. She was first admitted to psychiatric hospital after a suicide attempt in 2000 and again in 2003 after another such attempt. In the spring of 2007, she was diagnosed with paranoid schizophrenia and prescribed antipsychotic medication. She committed various burglaries during 2007 and was made the subject of a hospital order; on making progress she was conditionally discharged to a hostel in June 2011. After that she went missing until December 2011 and it was during that time she committed the index offence of robbery. She was sentenced in September 2012 to a hybrid order including 42 months imprisonment to be served after her discharge from hospital; she was so discharged to prison in January 2013 and released with a package of care in October 2014.

4. MBT’s criminal offending was found to be related to her drug taking. She has been free from drugs since December 2011 and has not committed any more serious offending. She received a caution in January 2024 for criminal damage to her then partner’s car after she had experienced domestic abuse.

5. Due to her criminal offending the respondent considered MBT was liable to deportation and ultimately made such a decision in March 2015. MBT appealed and her appeal was remade by the Upper Tribunal by decision promulgated in December 2015, the Upper Tribunal allowing her appeal under Article 3 ECHR, finding that removal to Ghana would lead to her suffering inhuman and degrading treatment perpetuated by people in authority due to the treatment of those with mental health problems in Ghana.

6. MBT was granted leave to remain as a refugee on 13 May 2019 (after the respondent decided not to pursue an appeal to the Court of Appeal) such leave expiring in May 2024. The applicant made an in-time application for settlement on 29 April 2024.

7. By the date of decision 2 (see paragraphs 12 – 15 below) the respondent had the letter from Dr Viall of 31 May 2024. That set out the applicant’s diagnosis of paranoid schizophrenia, currently in remission. It continued:

“She was discharged from hospital in October 2014 and has engaged well with the team since then, having regular meetings with her Care Coordinator and 3-monthly medical reviews with her responsible clinician. She has remained compliant with her medication and there have been no relapses requiring further hospital admission. This prolonged period of stability is due to her engagement with psychosocial input from Mental Health Services, abstinence from illicit drugs and compliance with medication. Ms T… shows good insight into her mental health and the need for ongoing treatment and support. Risks of further violence/re-offending remain low while she complies with her Care Plan.

I understand that currently, Ms T… is only permitted temporary leave to remain so she is required to make repeated applications to the Home Office in this regard. I know that the uncertainty/precariousness of her immigration status is highly distressing for Ms T…. and a destabilising factor for her mental health. During her last medical review with me on 13th May 2024, she presented with psychological and physical symptoms of anxiety and panic, as well as disturbed sleep. She is also enduring wider social stressors at her accommodation – a neighbour has recently been convicted for racial abuse and harassment towards her however the daily torment is ongoing. I would support an application for indefinite leave to remain in the UK on the basis that this would remove a significant psychosocial stressor and reduce the risks of a relapse in her severe mental illness, paranoid schizophrenia.”

8. Dr Viall wrote an updating letter on 21 March 2025 having seen the applicant on 6 March 2025 (shortly after the challenged decision). The applicant was still in remission, was still being reviewed at the same intervals and remained drug free and compliant with medication. He wrote:

“The uncertainty of her immigration status remains highly distressing for Ms T… and a destabilising factor for her mental health. During her last medical review with me on 6 March 2025, she highlighted how unsettling the recurring cycle of applications and reviews has been for her. The reminder of her non-permanent immigration status also sustains memories of her traumatic past which she struggles to put behind her, thereby potentially jeopardising her sustained recovery. She has continued to present with psychological and physical symptoms of anxiety and panic, as well as disturbed sleep.

I continue to support Ms T…’s request for indefinite leave to remain in the UK; I reiterate that this would remove a significant psychosocial stressor and would reduce the risks of a relapse in her severe mental illness, paranoid schizophrenia.”

9. The applicant described the way she felt in a witness statement of June 2024:

Even though I know I am not facing deportation it still feels like I am not being accepted, that I am an outsider who is not allowed to feel settled and stable when that is exactly what I need for my medical condition. It is when I feel scared and unstable that I am most at risk of relapsing. I don't want to go back to that darkness. The thought of having to keep reapplying when I have been in this country for over 40 years is very hard to take. By the time that I can apply for ILR, I will have been in the country for nearly 50 years. I cannot understand it. I came here aged 3, I have served my sentence, I have done everything right and this just feels like such an unfair punishment. I cannot express how good it would be for my mental health not to have my immigration status still hanging over me.

I want to plan for my future. I am looking forward to getting my own place. I want to continue being involved with the church and volunteering, to be healthy and have peace of mind. I hope that my children will contact me and that I will meet them and in particular I want to be in a better place when I meet them. I want to look forward positively, but I feel my immigration status will hold me back because I will feel so stressed; 2 and a half years go very quickly. It took five years from the Home Office wanting to deport me, until I got my status. I had five years of absolute stress hanging over me and I just don't want to go through the same stresses again.”

10. In the representations of 13 May 2024 made with the application for ILR the applicant’s representatives explained that they were in the process of obtaining further medical evidence. They noted that were it not for her convictions, the applicant would ordinarily be entitled to be granted ILR having completed 5 years leave to remain as a refugee. However the requirements of Appendix Settlement Protection meant that due to her conviction she would not be entitled to ILR unless 15 years or more had passed since the end of the sentence, which would take her to March 2031. They explained that the applicant’s circumstances were that her case was that it was appropriate to grant ILR now, referring to the Family Policy which indicated that reasons to grant ILR were likely to exist where the effect on health or welfare was disproportionately detrimental such that it would prevent development or recovery. They highlighted that the respondent could use their discretion to exercise leave outside the rules for any length of time. They indicated that they were intending to expand on their submissions.

11. Before they could expand their submissions or produce medical evidence the respondent issued the decision of 28 May 2024 (“decision 1”), refusing ILR but granting 30 months’ further Refugee Protection leave until 28 November 2026. The reasons given were the applicant’s conviction of 10 September 2012 of 42 months imprisonment to be served after discharge which meant that she had received a custodial sentence of at least 12 months but less than 4 years, and a period of 15 years had not passed since the end of her sentence.

12. By representations of 24 June 2024, the applicant’s solicitors invited reconsideration of the earlier decision. They made full representations supported by medical evidence and the applicant’s own evidence. They set out that their contention was that Article 8 ECHR was engaged because the applicant’s precarious immigration status risked compromising her moral and physical integrity, posing a safeguarding risk to a disabled person. They explained why they said the interference with the applicant’s private life was disproportionate. They submitted that their primary position was that the applicant should be granted ILR, but in the alternative a longer period of leave should be granted.

13. On 25 June 2024, a senior caseworker indicated that the respondent would not be able to reconsider and exercise discretion, saying they had looked into the case and did not believe discretion should be applied and they maintained the earlier decision.

14. After complying with the pre-action protocol, the applicant applied for judicial review on 27 August 2024. An order was sought quashing the decisions of 28 May and 25 June 2024 and requiring reconsideration of the applicant’s claim that she be granted ILR or a longer non-standard period of leave. The application was settled by a consent order sealed on 8 October 2024 by which the respondent agreed to reconsider the decisions within 3 months.

15. On 15 October 2024 (“decision 2”), the respondent made a further decision to refuse ILR. They said the previous decision to refuse ILR and grant limited leave due to criminality was maintained. They maintained there was no discretion to grant ILR outside the rules when a person had been convicted and sentenced and said leave outside the rules could not be applied as considerations of whether to grant leave outside the rules should not undermine the objectives of the rules or create a parallel regime for those who did not meet the rules. The applicant was granted permission to stay until 28 November 2027.

16. The respondent initially maintained her decision in response to a pre-action protocol letter, but following a second pre-action protocol letter, the respondent agreed, in a response of 19 December 2024, to reconsider the decision within three months.

17. On 10 January 2025 (“decision 3”), the respondent made a fresh decision refusing ILR and granting permission to stay until 6 July 2027. The summary at the head of the decision was in identical terms to that in decision 2. The reasons given were identical to those in decision 1.

18. The applicant’s solicitors challenged decision 3 by way of a pre-action protocol letter of 24 January 2025. They contended that the respondent simply had not engaged substantively with their submissions or evidence but instead repeated that she had no discretion to grant ILR. They repeated that the challenged decisions were contrary to policy and guidance and an unlawful breach of Article 8 ECHR. They also challenged the respondent putting an earlier expiry date on the applicant’s unlimited leave and erroneously issuing her with an eVisa which stated she had no recourse to public funds.

19. On 31 January 2025, the respondent agreed to reconsider the matter within three months. The applicant’s solicitors responded asking that the matter be considered by a different decision maker and noting that the respondent had not lifted the no recourse to public funds condition. By letter of 19 February, the respondent agreed to expedite the reconsideration so that a decision would be received within 2 weeks and to address the no recourse to public funds challenge as part of that reconsideration.

20. The decision under challenge was made on 20 February 2025 (“decision 4”). It refused ILR but granted permission to stay until 20 August 2027 and permitted the applicant to apply for public funds. The refusal was in the same terms as decision 1, on the basis that the applicant did not meet the requirements for settlement but continued to qualify for permission to stay on the protection route. The decision continued:

“To note, we have reviewed all the evidence provided, however we maintain our previous decision to refuse ILR and grant LTR due to criminality and are unable to exercise discretion in this case.

We have read the medical record, including the psychiatric report, and have acknowledged your diagnosis of paranoid schizophrenia, a schizo affected disorder and suicidal ideation. We also received and reviewed the letter explaining the background of your case. We have acknowledged your difficult childhood, dysfunctionality of family life, relationship with an older man and struggles with a drugs addiction. We understand that you were hospitalised many times due to your mental illness and kept subject to a hospital order as committed some offences. We have acknowledged that the deportation order was not pursued due to your mental health and a serious risk of harm. We also understand that you are drug free now, rehabilitated and remained engaged with mental health services.

We also have considered your request to apply discretion, but unfortunately there is no discretion to grant ILR OTR when a person has been convicted and sentenced. We have reviewed your request to warrant a longer period of permission to stay, however this was discussed with a Senior Case Worker and the previous decision to refuse ILR and grant LTR is maintained.

Unfortunately leave outside the rules could not be applied in your case as considerations of whether to grant LOTR should not undermine the objectives of the rules or create a parallel regime for those who do not meet them. You do not meet the requirements of the rules to be granted ILR.

We understand that you will be entitled to be granted ILR in March 2031 and at that point you will have been in the UK for nearly 50 years, however we do not think that based on this fact discretion should be used to grant ILR earlier. We do not believe that the circumstances (traumatic life history, drug – taking, domestic violence) provided by you are material to your request to exercise discretion. We understand that your offending was linked to your drug addiction and that you have not offended since and managed to stay drug free, however this does not warrant a grant of ILR Outside the Rules.

The representations of a compelling/compassionate reason were submitted, and we have considered all the points you have raised. We have accepted that you are vulnerable, suffer from mental illness, had a traumatic life experience, and still require support from social services and health professionals. We also understand that being a migrant is a stressor for you, however you have been granted further 30 months of leave in the UK on a protection route”.

21. In the pre-action protocol letter of 31 March 2025, the applicant’s solicitors wrote that they were urging the respondent to properly engage with the applicant’s circumstances, including the disproportionate interference with the applicant’s Article 8 rights that the decision constituted. They averred amongst the grounds of challenge that the proper remedying of the decision under challenge required that the respondent consider the applicant’s rights under Article 8 and Article 14 read with Article 8. They noted that Dr Viall’s letter of 31 May 2024 had been acknowledged and described the conclusions from it as “accepted”. They provided his updating letter of 21 March 2025. They noted that they would not automatically regard a promise of reconsideration as an appropriate remedy “given the SSHD’s repeated failure to carry out her decision making function with proper regard to the engagement of Articles 8 and 14 ECHR.”

22. In their response to the pre-action protocol letter of 11 April 2025, the respondent said that the decision-making team had considered the applicant’s human rights by granting the applicant limited leave. They had noted that there was no discretion to grant ILR outside the rules when a person had been convicted and sentenced, and another regime could not be created where applicants were granted ILR should they not meet immigration rules. A longer length of leave was considered but the senior caseworker determined this was not suitable and all laws, policies and guidance had been followed. All the evidence had been reviewed and the applicant’s circumstances accepted but it was considered that the circumstances were not material to exercising discretion.

The proceedings

23. The statement of grounds averred that the respondent had expressly accepted Dr Viall’s evidence that the precariousness of having limited leave and having to make repeated applications to the Home Office acted as a destabilising factor for the mental health of the applicant who suffered from psychological and physical symptoms of anxiety and panic; her status acted as a significant psychosocial stressor and risked causing a relapse in her paranoid schizophrenia.

24. It was said firstly that the decision was unlawful because it breached the applicant’s Article 8 rights. The harm to the applicant’s mental stability it was submitted interfered with her private life (Bensaid v United Kingdom (2001) 33 EHRR 10); whilst the respondent’s actions or inaction were not the ultimate cause of the applicant’s illnesses, it was sufficient that the respondent had the power to mitigate the harm but failed to act (R (N) v SSHD [2003] EWHC 207 (Admin), [2003] HRLR 20 and Anufrijeva v Southwark LBC [2003] EWCA Civ 1406, [2004] QB 1124). The Administrative Court had accepted in R (TT) v SSHD [2011] EWHC 1701 (Admin) that the foreseeable consequences of psychiatric injury as a result of the decision to refuse ILR could bring Article 8 into play and the Court had held in R (Y) v SSHD [2013] EWHC 2127 (Admin) that the refusal to grant ILR in that case was contrary to Article 3 ECHR and also in breach of Article 8 ECHR.

25. No justification had been offered for the interference with the applicant’s Article 8 rights; indeed, the respondent had acknowledged that the applicant would be entitled to be granted ILR in March 2031. It was submitted that this begged the question of what public interest was served by continuing to subject the applicant to a risk of harm. It was difficult to see how the denial of ILR could rationally be linked to the public interest in the prevention of crime given that the respondent evidently did not regard the applicant as a danger to the community and the accepted evidence showed she did not present a risk of re-offending. In any event, no fair balance had been struck between the rights of the individual and the interests of the community and the respondent’s decision was unlawful as breaching the applicant’s Article 8 rights.

26. Secondly, it was said that the respondent had fettered her discretion by saying that she had no discretion to grant ILR or that refusal of ILR was mandatory. It was averred that this was simply wrong in law.

27. Thirdly, it was said that the respondent had failed to take into account Dr Viall’s evidence even though the claim was it had been expressly accepted; the harm being foreseeably caused to the applicant and the risk of a relapse in her severe mental illness were plainly of high relevance to whether the applicant should be granted ILR notwithstanding her conviction, but the respondent did not take these matters into account, alternatively failed to explain what weight she had given to those matters and/or to give reasons for considering that they did not give rise to entitlement to ILR.

28. The applicant sought a declaration that the refusal to grant ILR to the applicant breached the applicant’s rights under Article 8 ECHR; an order requiring the respondent to grant ILR to the applicant; further or alternatively an order quashing the refusal.

29. In the summary grounds of defence, the respondent submitted that the decision was entirely lawful and demonstrated that discretion was exercised and the medical evidence comprehensively considered. It was right that mental health issues could fall within the confines of Article 8 ECHR, but Bensaid showed that there could still be a lawful interference with those rights. The facts in Y were truly exceptional as Y’s illness was non-organic and caused and contributed to by an ongoing refusal to grant ILR whereas in this case the evidence at its highest was that the uncertainty was distressing and a destabilising factor. The evidence did not come close to making out an unlawful interference with Article 8 rights. Y had not been eligible for ILR, whereas the applicant was eligible but not suitable and her position was less precarious.

30. Even if Article 8 ECHR were engaged, the respondent was able to interfere with such rights in accordance with the law for the purpose of pursuing the aims of the protection of the economic well-being of the country and the prevention of disorder and crime in accordance with Article 8 (2). The rules and guidance set out where the respondent had lawfully balanced individual rights and the legitimate aims of the state. The mandatory nature of refusal based on criminality reflected the importance of the public interest in ensuring those who are granted ILR are suitable. The public interest encompassed a wide range of matters and was engineered towards the well-being and welfare of society at large and the implication of deviating from the rules and guidance would amount to the applicant avoiding the consequences of her actions which did not serve the best interests of society as it could encourage others also to act in the same way to avoid or circumvent the provisions of the rules and guidance.

31. It was averred that when looked at as a whole, the respondent had considered the application outside the rules and refused to grant it, rationally finding that the evidence provided did not amount to sufficient compelling/compassionate factors, rather than refusing to consider discretion. The weight to be given to evidence was a matter for the decision maker. It was averred that the decision was lawful.

32. Permission was granted on the papers by UTJ Hoffman by order issued on 11 August 2025.

33. On 15 September 2025, the respondent informed the applicant’s representatives that she had agreed to reconsider the decision under review and invited agreement that the claim for judicial review was academic and would be withdrawn.

34. By detailed grounds of defence of the same date, the respondent pleaded that by reason of the agreement to reconsider, the claim was academic. It was said that this was not a case where there were exceptional circumstances, there was no live issue remaining, no evidence that large numbers of similar cases existed or were anticipated and the case turned on its own facts. As the respondent had agreed to reconsider her decision, there was no relief which the tribunal could grant which would be of value.

35. The applicant did not agree that the claim was academic, explaining that there was a clear material benefit to the applicant to the Upper Tribunal considering the claim given the relief sought, and being mindful that this was the second application for judicial review and the fourth decision.

The hearing

36. Mr Mackenzie developed his skeleton argument. Given that I indicated to the representatives that my preliminary view was that I did not consider the claim academic, or at least only in a narrow sense that it might be seen as academic if the applicant did not succeed, he did not develop his arguments in detail on the point but reminded me that the applicant’s case in summary on the academic point was that the applicant had not obtained, by an offer of reconsideration, all the practical relief which the Upper Tribunal could give her as she was seeking a declaration that her Convention rights compelled a grant of ILR. He reminded me of the history of the proceedings, that this was the fourth decision under challenge, commented on the similar terms of the decision and that the respondent could have made a further decision by now, but had not. He agreed of course that the offer of reconsideration meant that the second and third grounds (whether the decision involved a fettering of discretion or a failure to consider relevant matters) need not be considered as they would be capable of remedy by reconsideration.

37. He reminded me of the applicant’s history and in particular the severity of her mental health problems at the time of the offending, her very poor state of health when exhibiting florid symptoms of illness and the report of Dr Baker in 2013 (paragraphs 5 and 6) setting out what would happen if the applicant became unwell. Stress increased the likelihood of a relapse. The August 2015 witness statement of Ms Zuberi, a mental health social worker, explained at paragraph 6 how serious the applicant’s illness was if not treated properly. The letter in October 2014 notifying the applicant of her detention and deportation led to a sudden deterioration in her health and at the date of the witness statement Ms Zuberi considered her to be still extremely vulnerable. The applicant was granted leave to remain as a refugee; the respondent had never sought to argue that the applicant should be excluded from refugee protection. The applicant was living in the community free from drugs; free from further offending save she had damaged her former partner’s car in circumstances where she had been the victim of domestic abuse, and she only received a caution. Dr Viall had considered in both May 2024 and March 2025 that while the applicant complied with her care plan, as she was doing, risks of further violence and re-offending remained low. The decision under challenge accepted the evidence put forward by the applicant. The lack of ILR was destabilising and stressful for the applicant.

38. The respondent had made no mention in the decision of Article 8 and had not engaged with the requirements of Article 8. The decision amounted to the applicant having to remain on limited leave for at least 6 years. The decision interfered with the applicant’s private life, her social development, and her relationship with her children. The European Court of Human Rights had found in Pretty v United Kingdom (2002) 35 EHRR 1 that the concept of private life was a broad term and covered a person’s physical and psychological integrity and could embrace aspects of an individual’s physical and social identity [61]. The Court was not prepared to exclude that the state preventing Ms Pretty from exercising her choice to end her life was an interference with private life engaging Article 8 (1) and continued to consider Article 8 (2). In Bensaid the Court had held that the preservation of mental stability was an indispensable precondition to effective enjoyment of the right to respect for private life [47] but the risk was found to be largely hypothetical and the effect on him insufficient to fall within the scope of Article 8, but in any event to be justified.

39. In the case of N his symptoms of depressive disorder had been precipitated by the wrongful refusal of asylum and the threat of deportation. Silber J concluded that the treatment did not fall within the scope of Article 3 ECHR but he concluded that a claim would fall within the ambit of Article 8 ECHR if a claimant’s mental health or dignity was seriously damaged [109] and on the facts he concluded at [111] that the claimant’s rights had been contravened as was evidenced by the serious damage to his mental health. He set out at [137] that a defendant would be held liable for infringement of a convention right such as Article 3 or Article 8 where (for Article 8) the defendant was or ought to have been aware that the claimant was suffering or at risk of suffering mental illness of the kind necessary to engage Article 8 but then did not take the steps reasonably open to him to protect the claimant and such measures could have had a real prospect of altering or mitigating the harm suffered by the claimant. Whilst N had been successfully appealed in Anufrijeva the Court of Appeal had approved Silber J’s discussion of knowledge that the claimant’s private life was at risk [45], and they agreed that where a public body commits acts which it knows are likely to cause psychiatric harm to an individual, those acts were capable of constituting an infringement of Article 8, it was simply that on the facts harm had been caused to a particularly susceptible individual in circumstances where it was not reasonably to be anticipated [143].

40. In the case of TT, a decision not to grant ILR had been challenged. That had failed on the facts, but Davis J had found that he could see that the foreseeable consequences of psychiatric injury because of the decision might operate to bring Article 8 into play [45]. The claimant in Y had succeeded, and Y was relied upon. In Y there was a finding that the Article 3 threshold had been met, and it was conceded that in this case it was not met, but N showed it was not necessary to succeed under article 3 to succeed under article 8. In Y the respondent had failed to appreciate that a refusal of ILR would have a direct and potentially lasting impact on Y ‘s continued suffering and the future further degradation of his private life [64 (1)] and that interference could not be outweighed by the need to maintain immigration laws [64 [2]]. In FT there was a contention that the refusal to grant ILR breached article 3 and 8 rights as a very serious interference with mental integrity and the applicant had relied on Y. The Upper Tribunal had applied the approach in Y, but they concluded that on the facts before them no direct causative link had been established between the time-limited status in the UK and the breakdown of the applicant’s mental health, and the applicant was in any event not on a path which led to settlement. By contrast, in the applicant’s case there was a direct causative link – immigration status was a stressor for the applicant and that stressor was liable to cause relapse; the harm risked was very severe. Mr Mackenzie referred to paragraphs 29 and 30 of his skeleton argument- that there were other stressors was not relevant and the fact the applicant was compliant and not receiving treatment did not mean that there was not a breach.

41. When considering the Bank Mellat principles, it was submitted that there was simply no justification offered for the interference save for what might be taken as read namely the public interest in maintaining the immigration system. In the summary grounds of defence it was rather belatedly said security and the prevention of crime were also justifications, but the applicant was a low risk of offending, she was not being removed and she would be eligible for settlement in 2031 so, Mr Mackenzie asked rhetorically, what was the point of making her undergo the harm. There was a clear public interest in someone like the applicant recovering and contributing to society, and, he submitted, simply no public interest which would outweigh the harm.

42. Mr Swain in submissions also referred me to his skeleton argument. He said his submission was that the issue was only not academic if it was clear and obvious that there would have to be a breach of the applicant’s Article 8 rights by not granting her ILR. It was wrong in principle given the nature of judicial review to make the Tribunal the primary decision-maker.

43. It was not conceded that the extent of the interference was sufficient to engage Article 8 (1). In N, Silber J had found that the claimant had been denied his dignity as a human being and had been condemned to conditions which made it virtually impossible for him to have any meaningful private life. That was significant interference, he submitted and showed the level necessary. He accepted that the underlying illness did not have to be caused by the respondent, but it could not be that any additional risk no matter how small caused a significant interference, particularly not where there were several causes and the respondent’s decision was simply one of them.

44. The evidence of Dr Viall was relatively limited compared to the evidence in other cases to which I had been referred. The evidence showed that notwithstanding the applicant’s uncertain immigration status she had enjoyed a prolonged period of stability. The lack of settlement status was a destabilising factor, unsettling and potentially jeopardised her sustained recovery. The applicant was continuing to present with psychological and physical symptoms of anxiety and panic and disturbed sleep but that was its height and there were other stressors in her life (Mr Swain referred to the applicant’s witness statement at paragraphs 19 onwards). The same stressor in the sense of the respondent’s actions had been evident since Dr Baker’s report (he referred to paragraphs 3 and 4) but despite those stressors the applicant had shown stability and improvement in her condition going towards independent living.

45. In terms of justification if Article 8 (1) were engaged, Mr Swain said that he could only rely on the pleadings without going into ex post facto justification. He reminded me of [48] of Bensaid and [64 (2)] of Y and said that the interference was outweighed by the need to maintain the UK’s immigration laws.

46. Mr Mackenzie replied that the respondent could remove a factor leading to risk of relapse; just because there were other stressors did not mean the respondent could not do anything precisely because of the difficulty of predicting what factors were most relevant to future risk. I should simply look at whether it was material. [52] of Pretty showed that suffering from naturally occurring illness might be covered by Article 3 ECHR where it risked being exacerbated by treatment for which the authorities could be held responsible and this principle was picked up in N and naturally transferred across into Article 8. The economic well-being of the country pointed in favour of the applicant recovering and being able to work, the prevention of crime was not relevant, the applicant posed no risk and the argument in the summary grounds of defence was not a workable one. If the respondent had not identified the public interest, then it could certainly not be one which overrode the harm or risk of harm which would be caused by refusing ILR.

Discussion; conclusions

Is the point an academic one?

47. I remain of the view, as I expressed to the representatives at the beginning of the hearing, that even though the respondent has agreed to reconsider her decision, the point is not an academic one except in the (for these purposes) trivial sense that if the applicant is not successful in obtaining the specific relief she seeks then the issues will only be academic because of the respondent’s agreement to reconsider.

48. Laing LJ explained at [50] of R (L, M and P) v Devon County Council [2021] EWCA Civ 358 that all remedies in judicial review are discretionary and that the Court has at its disposal a range of doctrines, with discretionary elements, to control access to its scarce resources. She said:

“The discipline of not entertaining academic claims is part of this armoury. It enables the court to avoid hearings in cases in which, although the issue may be arguable, the court’s intervention is not required, because the claimant has obtained, by one means or another, all the practical relief which the court could give him.”

49. In this case, the applicant has not obtained all the practical relief she seeks. She seeks not only a declaration that the refusal to grant ILR breached her Article 8 rights in what might be termed a narrow procedural sense that the alleged failure to consider Article 8 rights, at least when engaged, was a breach of Article 8, but also an order requiring the respondent to grant her ILR, in other words that it is not simply a question of the respondent reconsidering the decision through the prism of Article 8 ECHR and coming to a conclusion, but in effect that the only conclusion can be that anything other than a grant of ILR is a breach of the applicant’s rights under Article 8 ECHR.

50. It might be different if this were the first decision under challenge, by which I mean reconsideration might give the applicant all she could expect to be entitled to where it was a simple case of the respondent, the first time the decision was made, not having considered the impact of the decision on the applicant’s Article 8 rights, through which lens the decision would be reconsidered. However in circumstances where this is the second judicial review application relating to the applicant’s same application for settlement and the fourth decision challenged (if not the fifth bearing in mind the refusal of reconsideration of 25 June 2024), that the applicant’s contention from the beginning has been that the decision breached Article 8 ECHR, and that the respondent has never expressly considered whether the refusal of ILR breaches the applicant’s Article 8 rights despite the invitation to do so, it cannot be said without examining the detail of the applicant’s claim that reconsideration will give the applicant all the relief she could practically expect.

Article 8 ECHR

51. R (Caroopen & Myrie) v SSHD [2016] EWCA Civ 1307 explains (at [73]) that where the issue raised by a judicial review challenge is whether there has been a breach of Convention rights, the court cannot confine itself to asking whether the decision-making process was defective but must decide whether the decision was right. Accordingly, I analyse whether the decision does indeed breach the applicant’s rights under Article 8 ECHR bearing in mind the principles set out in case-law such as Bank Mellat v HM Treasury (No 2) [2013] SC 38 & 39, [2014] AC 700 (at [74] in particular).

Engagement of Article 8?

52. Bensaid at [47] explains:

“Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life.”

53. The medical evidence in the letters of Dr Viall indicates that although the uncertainty/precariousness of the applicant’s immigration status is not the only stressor in the applicant’s life or the only potential cause of her anxiety, panic and disturbed sleep, it is highly distressing for the applicant and a destabilising factor for her mental health, so that if she were to be granted ILR this would reduce the risk of a relapse in her paranoid schizophrenia.

54. The fact that the applicant’s schizophrenia pre-dated and was not caused by the respondent’s decision and that there are other stressors such that the applicant might still relapse even if she gains ILR does not mean that the decision could not be an interference with the right to private life. Mr Swain does not suggest that there is not the necessary causative link and N (not affected in this respect on appeal) explains (see [137 [c]) that the causative link is that the measures taken by the state could have a real prospect of altering or mitigating the harm suffered by the claimant.

55. The decision is therefore capable in principle of being an interference by the respondent with the exercise of the applicant’s right to respect for her private life.

56. The next question is whether the interference does in fact have consequences of such gravity so as to engage the operation of Article 8 ECHR.

57. The applicant is at risk of a relapse in a severe mental illness, and the reminder of her non-permanent immigration status is, from the medical evidence of Dr Viall, sustaining memories of her traumatic past and thereby potentially jeopardising her sustained recovery. Dr Baker’s report, although historic, shows that the applicant’s psychotic symptoms and her mood improved after sentencing and the threat of impending deportation was considered to be a stressor and although by the time of writing his report (in May 2013) it had not led to a deterioration in her mental state, Ms Zuberi’s witness statement showed that the service of a deportation letter in October 2014 did lead to a sudden deterioration in the applicant’s health.

58. The applicant’s witness statement of 4 June 2024 evidences (paragraph 7) that the time between being told that she was liable to deportation and being granted leave after the respondent stopped seeking to appeal the Upper Tribunal’s decision was incredibly stressful for her, describing living in constant fear which consumed her thoughts and the complete relief she felt when gaining refugee status (paragraph 9). Her witness statement describes feeling like she is not being accepted and allowed to feel settled and stable and that she is most at risk of relapse when unsettled and unstable, that making repeat applications and waiting for nearly 7 years in order to be granted ILR is a hugely stressful factor for her (paragraph 27), how good it would be for her mental health not to have her immigration status still hanging over her (paragraph 32) and her feeling that her immigration difficulties will hold her back in planning for her future, getting her own home, continuing involvement with the church and volunteering and being in a better place if and when her children want to contact her. Although there are other stressors in the applicant’s life, Dr Viall’s medical evidence is that the applicant continues to present with psychological and physical symptoms of anxiety and panic.

59. On the other hand, fortunately the evidence does not disclose other than that the applicant’s mental health condition has been reasonably stable in the sense of not having relapses requiring hospital admission for 11 years, including the time of her appeal hearing in late 2015 and the subsequent years when the respondent was seeking to appeal; a profoundly stressful time for the applicant when she describes herself as terrified. The applicant was able to make use of the support available to her so that she was released on bail to supported accommodation even after the stress of the deportation letter. She is having three-monthly reviews, engaging with psychosocial input, abstaining from drugs, and taking the medication prescribed for her. She has moved out of completely supported accommodation to being checked on by support workers three times a week and now two times a week, she goes to church and volunteers with the church food bank (paragraphs 14 and 15 of her witness statement). Her witness statement evidences a woman who has insight into and recognition of her condition, and is determined to keep going and surmount the obstacles in her path even when she finds aspects of her life distressing and a struggle. There are other stressors in her life such as the breakdown in her relationship with her former partner (paragraph 23), finding herself in a police station and being cautioned (paragraph 20) and a problem neighbour (paragraph 24).

60. The interference with the applicant’s private life by the actions of the respondent appears less severe than in the cases of the applicants in Y and N and more like the case of the applicant in FT.

61. The applicant N was suffering from a major depressive disorder, diagnosed by a psychiatrist as most likely precipitated by the (wrongful) decision not to extend his leave [32]. Although the Article 3 threshold was not met, he was found to have been denied his dignity as a human being and condemned to conditions which made it virtually impossible for him to have any meaningful private life [111]. In the case of the applicant Y, his treatment was found to be in breach of Article 3 ECHR and although his symptoms had their origin in trauma they only intensified into becoming a disability requiring treatment when his seizures were triggered by his fear of being returned to Afghanistan and not attaining the security of permanent residence. His view that he would remain at risk of removal unless he obtained ILR was said to be so unshakeable that until he had the sense of security which ILR would give him he was simply unable to begin the treatment which would help him [45]. He was described as suffering from serious and debilitating mental disability and deprived of the opportunity of meaningful treatment, with the consequent breakdown of all aspects of his social integrity [64 (3)].

62. The applicant in FT had ultimately been recognised as a victim of trafficking and during proceedings challenging the grant of only six month’s discretionary leave, he was granted a further 24 months’ discretionary leave but the grant of ILR was declined. The applicant had been diagnosed with PTSD and a major depressive disorder and the panel noted that the medical evidence indicated that the refusal to grant the applicant a period of leave of sufficient duration to provide the requisite stability to enable him to undertake specialist trauma and aid his recovery had left him anxious and had contributed to the maintenance and exacerbation of his symptoms. That the refusal to grant ILR breached both Article 3 and Article 8 rights was only one of various grounds of challenge. The panel recognised the aimlessness the applicant felt, the difficulties with his finances and the anxiety he felt concerning his immigration status and that the inability to undertake specialist therapy did to some degree have an impact on the applicant’s private life, but they were not satisfied that the adverse consequences of the refusal to grant him ILR were of a sufficiently serious nature to constitute an interference with his mental integrity and his private life rights in general as he did have access to some support and coping strategies and he was entitled to appropriate NHS support.

63. Although FT‘s case is similar in the causation of anxiety and contribution to symptoms, there is specific medical evidence in the applicant’s case not only that the refusal of ILR is highly distressing, destabilising for the applicant’s mental health, at least contributing to her anxiety and panic but that removing a significant stressor would reduce the risks of a relapse. The applicant is also specific in her witness statement about the significant effect on her of not feeling settled and stable.

64. I conclude, with some hesitation, that the interference with the applicant’s private life just meets the threshold for engagement of Article 8 (1). This is because if the applicant does relapse, the consequences could be very severe, and granting settlement would take away not just any stressor, but a significant stressor risking the applicant’s mental stability.

Justification and proportionality

65. The justification for the interference with the applicant’s private life appears from paragraph 17 of the summary grounds of defence relying on the rules and guidance which reflect the importance of the public interest in ensuring those who are granted ILR are suitable.

66. It is worth setting out the entire section headed “purpose of guidance” which includes the background to guidance and the policy objective of guidance.

67. “Background

Those granted refugee status or humanitarian protection, along with any qualifying dependants included on the asylum claim, will usually be granted five years permission to stay. When their permission is due to expire, they must apply for further permission for themselves if they want to stay in the UK. Current policy permits those on a protection route to qualify for settlement (indefinite leave to remain) after completing five years permission to stay on the route, should they meet the requirements of Appendix Settlement Protection.

Settlement is a privilege, not an automatic right, and provides permission to stay in the UK permanently and freedom from immigration control for those who still require protection. However, as the need for protection may be temporary, a safe return review is carried out on every application for settlement on a protection route to determine and confirm the need is continuing. If there are, for example, significant improvements in country conditions or changes in personal circumstances that mean someone no longer needs protection, they may be expected to return to their country of origin or to apply to stay in the UK under other provisions of the Immigration Rules.

Settlement may also be refused to those on a protection route where the suitability requirements are not met. The Rules outline specific circumstances where it will not be suitable to grant settlement, such as the behaviour of an applicant (this includes their criminality, character, conduct or associations). Where the suitability requirements are not met, but protection is still required, further permission to stay may be granted.

Policy objective

The policy objective when considering applications for settlement from individuals on a protection route is to:

• ensure that the UK’s obligations under the Refugee Convention and European Convention on Human Rights (ECHR) are met where there is a continuing need for protection
• ensure that safe return reviews are conducted to consider whether there have been any changes in country conditions or personal circumstances so that only those who continue to need protection benefit from settlement on this route
• ensure that dependants continue to qualify as family members, by ensuring that
a spouse is still in a genuine and subsisting relationship with the main applicant
• delay the path to settlement in the UK to those who have committed criminal offences or whose character, conduct or associations are considered not to be conducive to the public good, either permanently or for an appropriate period of time based on the severity of the crime
• ensure all decisions regarding settlement are decided consistently.”

68. Settlement is therefore clearly highlighted to be a privilege, not an automatic right and the policy objective is also clear that the path to settlement should be delayed for those who have committed criminal offences. The legitimate aim of the policy is not only the economic well-being of the country but also the prevention of disorder and crime.

69. Mr Mackenzie submits that the summary grounds of defence is incoherent in saying that “The implication of deviating from the rules and guidance on the provision of criminality would amount to the Applicant avoiding the consequences of her actions and this does not serve the best interest of the society as it could encourage others to also act in the same way in a bid to avoid or circumvent the provisions of the rules and the guidance”.

70. It may not be expressed in the best way, but the point is made that granting settlement now would to a degree amount to the applicant avoiding the consequences of her actions. Of course, the applicant has been convicted and sentenced, but she would be avoiding the consequence of being on a delayed route to settlement because of her crime. The summary grounds of defence are not really suggesting that others might be encouraged to commit offences or contract a serious illness to be granted ILR earlier; rather that there is a general deterrent in the principle being applied that those who commit crimes, even if they are recognised as refugees, will have their route to settlement delayed. If some avoid the consequences of their actions it potentially reduces the deterrent effect of the provision, and it is important not only for those who might commit criminal offences, but also for the law-abiding members of society to see that a distinction is made. The objective of the prevention of crime is not simply aimed at preventing the specific applicant committing further crime.

71. Mr Mackenzie submits that in any event the decision is not proportionate because no fair balance has been struck between the interests of the individual and the interests of the community.

72. The applicant is not being removed, she is at low risk of offending in a similar way, and the respondent has indicated that the applicant will be eligible for settlement in March 2031. That is a recognition that the applicant is likely still to need protection at that time. Granting the applicant settlement would also mean that part of the risk of relapse would be reduced which would give the applicant more of a chance of recovering further and contributing further to society which would be in the public interest.

73. Even bearing those points and the other points in favour of the applicant in mind, I am satisfied overall for the reasons I explain below that refusing ILR is proportionate and does not breach Article 8 ECHR.

74. I consider there is a strong public interest in ensuring that only those who meet the suitability requirements are granted the privilege of settlement. The applicant is not someone who is likely to re-offend, but if the public interest lay only in ensuring that those who were refugees did not re-offend then the suitability requirements of the settlement protection route would have been drafted in different terms. The applicant struggled with very difficult conditions growing up, not assisted as she might have been by the authorities in a position to help her, and she has a serious mental health condition, but she still bears responsibility for the offending she committed. Although she needed support, it was also recognised that punishment was necessary as she received a hybrid order including imprisonment, not simply a hospital order. Dr Baker explains in paragraph 3 of his report that he had intended to recommend that no hospital order be made as there was no clear link between the applicant’s illness and the offence, but as the applicant’s mental state deteriorated he altered his view and concluded that a hybrid order would allow management of the applicant’s deterioration at that time whilst allowing the criminal justice system to also sentence her appropriately. It has been recognised that the applicant is on a route to settlement and unless things change, is likely to achieve settlement in due course, but granting the applicant settlement now would mean that she was achieving settlement about 5 years earlier than the route prescribes for those with a criminal conviction of her length, which is not a nominal period in the scheme of things.

75. Against that background, whilst granting settlement would give the applicant stability, the lack of which is so unsettling for her and reduce her anxiety and the risk of relapse into schizophrenia, the applicant as I have set out at paragraph 59 above is well-supported, is accessing suitable treatments, complying well with her treatment regime, has not had a relapse needing hospital treatment for more than 10 years despite there being considerable stressors in her life and despite the risk of deportation hanging over her for the first four years. She has moved from completely supported accommodation, and is managing to integrate into society again in terms of attending church and volunteering at a food bank, although I appreciate more stability would enable her to better integrate. She has access to public funds to assist her. This is not a case where she cannot have or enjoy a private life at all because of the respondent’s actions. Although not having settled status is very stressful for her and making another application to the respondent is also stressful, unlike the position she was in between 2015 and 2019 it has not been suggested that she is at risk of removal and so she is not under that extremely high stress. Whilst I have found the interference to be significant enough to engage Article 8, the level of that interference must still be weighed against the public interest, and I have found it only just above the level which engages Article 8. It is also a factor that, unlike the case of Y or even N, although the respondent could mitigate the effects of the applicant’s health condition on her by granting ILR, the respondent’s actions are not the cause of the applicant’s serious mental health condition.

76. Taking all the points together I conclude that the public interest outweighs the interference with the applicant’s private life.

Conclusion

77. The decision not to grant ILR does not therefore breach the applicant’s rights under Article 8 ECHR.

78. I observe that the respondent has not explained why it was decided only to grant the applicant 30 months’ limited leave, the standard, when the applicant was granted 5 years’ leave initially and she has not reoffended (other than her admission of the incident for which she received a caution, entirely dissimilar to her previous offending and as a result of particular circumstances). The applicant’s witness statement clearly shows that making applications to the respondent and waiting for the result are a particular source of stress for her. I say no more because the point was not argued before me as the respondent has agreed to reconsider her decision.

79. It follows from my finding that the decision not to grant ILR does not breach the applicant’s Article 8 rights that I do not grant the declaration, or the order sought.

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