R (Mayaya) v SSHD, C4/2011/3273, on appeal from [2011] EWHC 3088 (Admin), [2012] 1 All ER 1491

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1 R (Mayaya) v SSHD, C4/2011/3273, on appeal from [2011] EWHC 3088 (Admin), [2012] 1 All ER 1491 Consequences for those formerly excluded from Discretionary Leave or Humanitarian Protection on grounds of commission of a serious crime Laura Dubinsky (Doughty Street Chambers), Stefan Vnuk (Lawrence Lupin Solicitors) Introductory 24 March The Court of Appeal in Mayaya 1 has, by consent, made a declaration on 19 March 2013 to the effect that (a) the SSHD s Asylum Policy Instructions ( API ) on Discretionary Leave in force before 9 July 2012 were unlawful in so far as these restricted grants of Discretionary Leave for persons sentenced to 12 months or more for a criminal offence; (b) from 15 July 2007 until 8 May 2011 she unlawfully failed to publish a CCD process instruction on exclusion from Discretionary Leave; and (c) the decisions to exclude the claimant from Discretionary Leave under those policies were therefore unlawful. The exclusionary parts of the Discretionary Leave API were, by consent, quashed. The Order and statement of reasons are attached to this Note. 2. The Mayaya settlement affects those who (like the claimant) established their entitlement to remain in the UK on article 8 ECHR grounds but then were excluded, on the basis that they had committed a serious crime, from Discretionary Leave under the API on Discretionary Leave in force before 9 July We suggest that it also affects those who established their entitlement to leave to remain in the UK on Article 3 ECHR protection grounds or Article 15c Qualification Directive grounds but were excluded on the serious crime basis from Humanitarian Protection under the API on Humanitarian Protection which, at the time of writing, is still in force (but already under review). This is because (a) the exclusionary part of the previous API on Discretionary Leave was simply imported from the API on Humanitarian Leave; and (b) the reason for the SSHD s concession concerning Discretionary Leave, namely that a rigid exclusionary policy amounting to a rule must be contained in the Immigration Rules, applies equally to the API on Humanitarian Protection. 1 Representation for the claimant/ appellant: Stefan Vnuk of Lawrence Lupin Solicitors instructing Laura Dubinsky of Doughty Street Chambers in the Administrative Court and in the Court of Appeal until post-permission. Negotiations and settlement then reached by Stefan Vnuk and (Laura having left on maternity leave) Raza Husain QC and Chris Buttler of Matrix Chambers. Treasury counsel: Elizabeth Laing QC, Charles Bourne. 1

2 4. Below, we give the background to the concession before discussing the consequences. Some points raised in the Mayaya challenge- which were not the subject of the SSHD s concession- may still need to be litigated. We therefore go into some detail on the grounds of review and the scope of the Court of Appeal s grant of permission. For an overall summary, see paragraphs below. The legal and policy background in very brief summary 5. Humanitarian Protection is the domestic term for Subsidiary Protection, a status established under Article 17 Council Directive 2004/83/EC on minimum standards for the qualification and standards of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted ( the Qualification Directive ). Article 17(1)(b) Qualification Directive excludes from Subsidiary Protection a person for whom there are serious grounds for considering that he or she has committed a serious crime. Nothing in the Qualification Directive, or in paragraph 339D of the Immigration Rules which seeks to give effect to the exclusionary clause in Article 17(1), specifies a 12 month (or any) sentence threshold for exclusion purposes. However, the SSHD took it upon herself to seek to define serious crime in her policies. 6. At the time of writing, the API on Humanitarian Protection stipulates that any person who was sentenced to 12 months imprisonment or more for a criminal offence has committed a serious crime and is excluded from Humanitarian Protection leave. A person excluded on this basis 2 is entitled only to Discretionary Leave. 7. Before 9 July 2012, the API on Discretionary Leave imported the same exclusion. The API on Discretionary Leave simply stated as to exclusion: The Grounds for exclusion from Humanitarian Protection will apply to Discretionary Leave In short, the exclusion in the API on Discretionary Leave applied to (a) Those who had succeeded in establishing an entitlement to remain in the UK on Article 3 ECHR protection grounds or Article 15 (c) Qualification Directive but were excluded from Humanitarian Protection and thus funnelled into Discretionary Leave; and also to (b) Those who (like the claimant Mayaya) were entitled to remain in the UK on Article 8 ECHR grounds and thus never fell within the remit of Humanitarian Protection but passed straight to Discretionary Leave. 2 See paragraph 27 below 2

3 9. A person excluded from Discretionary Leave (exclusion being a misnomer since they still received Discretionary Leave) was normally entitled only to 6 months Discretionary Leave rather than the standard period of three years. Initially also, a person excluded from Discretionary Leave invariably had to wait for 10 years before becoming eligible for Indefinite Leave to Remain, although that was amended as a consequence of an earlier step in the Mayaya litigation, see further below. 10. In Mayaya, the SSHD eventually disclosed an unpublished policy document concerning grants of leave to foreign national former offenders, which had been maintained from 15 July 2007 until 8 May The unpublished policy was more favourable to individual applicants in that it afforded caseworkers a discretion as to which cases should be deemed serious. The unpublished policy also gave a nonexhaustive list of criteria which could be applied in determining whether an offence had in fact amounted to a serious crime : A non-exhaustive list of potentially relevant factors includes: a. The nature of the offence (Did it include violence? Was it related to Drugs? If it included theft or fraud what was the scale?) b. Whether it did, or could, endanger life. c. The impact on the victim(s) including the emotional, physical, psychological and financial aspects. d. The sentencing judge s remarks (if applicable) on the seriousness of the case. e. The motive behind the crime. 11. The SSHD then appears to have become anxious about operating two conflicting policies, one published and one unpublished. She brought the (more favourable) unpublished policy into line with the published policy. On 9 May 2011, the unpublished policy was amended so that its terms reflected the rigid rule on exclusion in the published APIs on Discretionary Leave and Humanitarian Protection. 12. The published API on Discretionary Leave was then replaced on 9 July The API on Humanitarian Protection is under review. The facts 13. Mr. Mayaya is a national of the Democratic Republic of the Congo who defeated a deportation decision on the basis that his deportation would breach his right to respect for his family life under Article 8 ECHR. His longest criminal sentence was a sentence of 12 months imposed for an immigration offence. Mr. Mayaya was eventually granted Discretionary Leave for six months only and informed that this was because he had committed a serious crime and thus was excluded. He brought a claim in judicial review challenging the SSHD s decision, repeated in later renewals of his leave, to grant him six months leave to remain only and the SSHD s exclusionary policy. Shortly before his claim came to a full hearing in the 3

4 Administrative Court, the SSHD granted Mr. Mayaya three years Discretionary Leave and sought to persuade him to withdraw his claim as academic. Mr. Mayaya pursued his challenge to the exclusionary policy and also to the SSHD s decision to treat him as having committed a serious crime (which still affected the period which he would have to wait before becoming eligible for Indefinite Leave to Remain). The litigation 14. The policy challenge brought on Mr. Mayaya s behalf at the outset can be summarised: (1) The exclusionary policy in both APIs fettered the SSHD s discretion as to who to treat as having committed a serious crime. The SSHD could not abdicate her discretion, under Immigration Act 1971 s.3(1) to consider the individualised facts of each case before determining the period of leave to be granted. It was no answer for the SSHD to say that the sentencing court would already have considered the facts of the offence since sentencing is not exclusively concerned with the seriousness of the offence (but also reflects, for example, responses to earlier sentences, or mitigating personal circumstances extraneous to the offence) and since the court s sentencing practices change over time. (2) The exclusionary rule in the API on Humanitarian Protection is incompatible with the Qualification Directive because (a) seriousness requires individualised assessment by the decision-maker; (b) it is impermissible to treat sentence length as dispositive of exclusion, seriousness being contextually determined (the correct question is whether an offence is sufficiently serious to warrant exclusion from international protection); (c) the seriousness threshold in Article 17 (1) (b) Qualification Directive is cognate with the threshold for exclusion for serious crime from Refugee Convention protection at Article 12 (2) (b) Qualification Directive and (d) not every offence which attracts a 12 month sentence is sufficiently serious to warrant exclusion from international protection; (e) EU law prohibits irrebuttable presumptions limiting fundamental rights; and (f) The word serious in an international convention has an autonomous meaning: signatory states are not entitled to impose their own unilateral interpretation. The exclusionary policy in the Discretionary Leave API which was neither substantively nor textually severable from the exclusionary policy in the Humanitarian Protection API from which it was derived- was therefore also unlawful. (3) The initial challenge before the Administrative Court also raised the point that the API on Discretionary Leave unlawfully fettered the SSHD s discretion in that it imposed a blanket rule that all those excluded from Discretionary Leave on the basis 4

5 of a serious crime must wait for 10 years Discretionary Leave before becoming eligible for Indefinite Leave to Remain. (4) The exclusionary policy in both APIs also breached the constitutional principle that the SSHD could not in policy adopt rigid requirements amounting to rules rules had to be subject to Parliamentary scrutiny and be published as part of the Immigration Rules. (5) The SSHD had also acted unlawfully in failing to publish her unpublished policy concerning exclusion from Discretionary Leave from 15 July 2007 until 8 May Applicants considered under the unpublished policy were prejudiced in that, albeit it was more favourable than the published policy, they were not in a position to make informed representations. 15. At first instance, in [2011] EWHC 3088 (Admin), [2012] 1 All ER 1491, Cranston J accepted that the API on Discretionary Leave unlawfully fettered the SSHD s discretion in requiring a 10 year wait before an excluded person became eligible for consideration for Indefinite Leave to Remain. He granted a declaration to that effect, but dismissed the rest of the claim for judicial review. 16. Mr. Mayaya was granted limited permission to appeal on the papers by Sir Richard Buxton (on the publication and cognate thresholds of seriousness points). Permission was then enlarged at a hearing by Toulson LJ, as he then was, who granted permission on the Qualification Directive challenge and the point that the exclusionary policy amounted to a rule which should have been contained in the Immigration Rules. However, permission was refused on the fettering challenge (point (1) above) because, in Toulson LJ s view, it was subsumed within the Qualification Directive challenge (point (2) above). 17. By the consent Order sealed on 19 March 2013, the SSHD conceded that the API on Discretionary Leave in force at the time of the decisions in Mr. Mayaya s case had unlawfully imposed a rule which should have been included in the Immigration Rules. 18. In fact, as the parties agreed, the inclusionary part of the API on Discretionary Leave for those entitled to remain on Article 8 ECHR grounds also should have been included in the Immigration Rules (since it required anyone entitled to remain on Article 8 ECHR grounds to be granted Discretionary Leave). But there is always a discretion as to whether to quash an unlawful policy and it would serve no one to quash the inclusionary part of the API no one would benefit from all grants of Discretionary Leave having to be reviewed. Only the exclusionary part of the API on Discretionary Leave was quashed. 5

6 Consequences of the SSHD s concession Exclusion from Discretionary Leave 19. Exclusion from Discretionary Leave under the old (pre 9 July 2012) API matters for two reasons. First, exclusion affects the period of initial leave ( excluded persons are normally granted 6 months leave to remain only). Second, exclusion affects the period that must elapse before the individual is eligible for consideration for Indefinite Leave to Remain (even after the Cranston J judgment, the wait for an excluded person is normally 10 years). 20. In the course of the Mayaya litigation, the SSHD replaced her API on Discretionary Leave. The new API applies to anyone whose entitlement to Discretionary Leave was decided on or after 9 July But there are transitional arrangements: anyone whose first period of leave was granted under the old API continues to have subsequent grants of leave decided under that old API. 21. The SSHD s concession therefore affects anyone who was excluded from Discretionary Leave under the old API as having committed a serious crime even if decisions on further grants of leave for that individual were made on or after 9 July Anyone so excluded from Discretionary Leave is entitled to ask that their exclusion, and the designation of their offence as a serious crime be reviewed under a lawful (and thus published) policy. 23. However, it is very unclear what policy the SSHD will apply when reviewing cases of persons excluded from Discretionary Leave under the old API. 24. Applicants and their representatives may wish to press the Home Office for clarification of its approach and to remind the UKBA of its duty to publish. They may also wish to suggest that since there is at present no exclusionary policy at all (the old exclusionary policy having been quashed, and the new API containing no analogue) and since the old inclusionary policy still stands through the transitional arrangements in the new API, those entitled to remain on Article 8 ECHR grounds but formerly excluded from Discretionary Leave should simply be granted standard periods of Discretionary Leave. 25. Difficulties will arise if the SSHD attempts to apply her new API on Discretionary Leave in reviewing exclusion cases. Quite apart from the fact that the SSHD has already sought to put transitional arrangements in place for those whose cases were initially dealt with under the old API, the new API does not cover Article 8 ECHR cases. Article 8 ECHR cases are now dealt with under the Immigration Rules. 6

7 26. In a further change, under the new API, the standard grant of leave of Discretionary Leave is now 2.5 years (rather than 3 years under the old API for non-excluded persons) and the standard period of Discretionary Leave that must elapse before consideration for ILR is now 10 years (rather than 6 years under the old API for nonexcluded persons). 27. Additionally, under the new API, the system of granting excluded persons shorter periods of Discretionary Leave has gone. No differential periods of Discretionary Leave are specified in the new API for foreign national former offenders. The new API on Discretionary Leave states that (a) in all cases where leave is being considered decision makers must have regard to the criminality thresholds and (b) a person subject to one of the grounds of exclusion set out in the Asylum Instruction on Exclusion under 1F of the Refugee Convention and thereby also excluded from a grant of Humanitarian Protection must be considered under the policy of Restricted Leave, and not granted Discretionary Leave. But Criminality thresholds are not defined in the revised API on Discretionary Leave 3. In any event, the policy does not specify the consequences of meeting criminality thresholds. Meanwhile, the Asylum Instruction on Exclusion under Article 1F of the Refugee Convention 4 (which contains the criteria by which a person will be entitled to Restricted Leave only), in so far as it addresses serious crime, appears to concern only crimes committed before coming to the UK. Though not the subject of this Note, the guidance on serious criminality in that Asylum Instruction is in our view also unlawful In short, critical questions remain of how serious crime should be defined, and what will happen to a person entitled to remain in the UK on who, on review, the SSHD still considers has committed a serious crime in the UK. As for what happens to a person who, on review, is found not to have committed a crime properly deemed serious (or to all review cases if the SSHD abandons the attempt to maintain exclusions ) there are compelling arguments that, to remedy the historic injustice the person should be treated as they would have been under the old policy if not excluded. That is, receive a three year grant of leave and wait for 6 years for consideration for ILR. 3 The reference may well be to the sentence benchmarks in the Immigration Rules (see for example paragraphs 320 and 398). But it is unclear how caseworkers are to have regard to criminality thresholds (which threshold exactly?). Nor is it clear how guidance on criminality designed for a different context will be carried over (by definition those being considered for Discretionary Leave in deportation cases will already have established that deportation would be unlawful despite their level of criminality- will they have to surmount the same criminality threshold twice, once to defeat deportation and again to obtain leave?). 4 nddecidingtheclaim/guidance/exclusion.pdf?view=binary 5 The Asylum Instruction on Exclusion states: it may be appropriate to regard a crime for which a custodial sentence of 12 months or more upon conviction might be expected (if that crime had been tried in the United Kingdom) as a serious crime. But, as the Court of Appeal s judgment in AH (Algeria) [2012] EWCA Civ 395 makes clear, it is unlawful to treat sentence length as determinative of exclusion from Refugee Convention protection and in any event not even every offence attracting a sentence of two years is a serious crime within the meaning of Article 1 F (B) Refugee Convention. 7

8 Exclusion from Humanitarian Protection 29. At the time of writing, the API on Humanitarian Protection still stipulates that all those sentenced to 12 months or more for an offence have committed a serious crime and are excluded from Humanitarian Protection. 30. Those who receive Discretionary Leave instead of Humanitarian Protection are entitled to a shorter period of leave than the 5 year norm for Humanitarian Protection, must wait longer for Indefinite Leave to Remain, lose the entitlement to family reunion and lose the entitlement to a travel document. 31. It remains our view that the exclusionary part of the API on Humanitarian Protection is unlawful because, first, it is inconsistent with the Qualification Directive see paragraph 14(2) above - and, second, it is a rigid rule which, if it can properly be adopted at all, must be contained in the Immigration Rules (see Alvi [2012] UKSC 33, [2012] 1 WLR 2208). The Qualification Directive point has not been conceded by the SSHD. But it must in any event follow from the Court of Appeal s declaration that this exclusionary clause as imported to the API on Discretionary Leave is unlawful, and from the statement of reasons as concerns the impermissibility of a rigid rule outside the Immigration Rules (statement of reasons 4) that the exclusionary policy in the API on Humanitarian Protection is also unlawful. 32. Applicants and their representatives may wish to approach the Home Office urging it to accept, without recourse to further litigation, that not only those excluded under the old Discretionary Leave API but also those excluded under the Humanitarian Protection API on the serious crime basis are entitled to a review of their exclusion. It is very likely that these reviews would be under the new API on Humanitarian Protection, currently in draft form. 33. The latest draft circulated by the Home Office to ILPA on 6 March 2013 states that A serious crime for the purpose of exclusion from Humanitarian Protection was previously interpreted by the UK Border Agency to mean one for which a custodial sentence of at least twelve months had been imposed in the United Kingdom, but it is now accepted that a 12 month sentence (or more) should not alone determine the seriousness of the offence for exclusion purposes. The sentence must therefore be considered together with the nature of the crime, the actual harm inflicted, and whether most jurisdictions would consider it a serious crime. Examples of serious crimes include murder, rape, arson, and armed robbery. Other offences which might be regarded as serious include those which are accompanied by the use of deadly weapons, involve serious injury to persons, or if there is evidence of serious habitual criminal conduct. Other crimes, though not accompanied by violence, such as large-scale fraud, may also be regarded as serious for the purposes of exclusion. 8

9 Summary 34. The consequences of the Mayaya settlement are, in our view, that any person who was excluded from Humanitarian Protection leave and/or Discretionary Leave on the basis of conviction for a serious crime is now entitled to ask the SSHD to review his or her exclusion. 35. However, this is subject to a number of significant caveats. The questions of the policy to be applied to those potentially eligible only for Discretionary Leave 6 whose exclusion is reviewed, or how serious crime should be defined, remain opaque and are likely to be the subject of further litigation. And, since the concession, declaration and quashing order in Mayaya concern only Discretionary Leave (the policy under which the claimant s case fell), the Home Office may need vigorous prompting before accepting the consequences of its own concession for those excluded from Humanitarian Protection on the basis of commission of a serious crime. Finally, at least in so far as concerns those excluded from Humanitarian Protection, the settlement will not benefit those convicted of an indisputably serious crime. 6 That is, who have not established an Article 3 ECHR protection or Article 15c basis for remaining in the UK. 9