This was a challenge to SSHD’s policy on the type of leave granted to foreign national prisoners (FNPs) in circumstances where their removal would breach the ECHR.
Currently it is UKBA policy to exclude migrants from humanitarian protection status (HPS) in circumstances where they have committed crimes that attract sentences of 12 months or more as these are deemed ‘serious crimes’. Similarly this extends to discretionary leave. Leave in such circumstances will not usually be granted at any given time for more than 6 months, and eligibility for settlement will arise after ten, rather than six years in such circumstances.
In this case, all of the applicants were foreign nationals who had committed crimes attracting sentences of 12 months or above. They were therefore deemed to have committed ‘serious crimes’, and as such were excluded from humanitarian protection status, and granted short periods of discretionary leave to remain.
KM challenged both his exclusion from humanitarian protection status, and the refusal to grant settlement/ DLR for three years on grounds that the decisions were unlawful on grounds that they breached: a. the Qualification Directive (QD)/EU law, b. the no fettering of discretion rule, and c. the Pankina principle.
AO and HE who after having been granted 6 months DLR, were subsequently granted DLR for three years challenged the decision to refuse settlement on grounds that a. it was irrational and disproportionate, b. it failed to take into account all of the relevant factors, c. there had been a breach of Article 8 ECHR, and d. the DLR policy was contrary to the rule of law.
1. The failure by SSHD to consider the circumstances of KM, AO and HE, and instead to simply apply UKBA’s DLR policy which states that those excluded from HPS, but granted DLR ‘ do not become eligible for settlement until they have completed ten continuous years of discretionary leave’ represented an unlawful fetter by SSHD of her discretion.
2. There was no breach of the QD in the case of KM on the grounds that his offence was not a ‘serious crime’. The drafting history of the QD shows that it was intended that the concept of ‘serious crime’ in Article 17(1)(b) (subsidiary protection) was drafted to have far wider reach than that in Article 21 QD which reflects Article 1F of the Refugee Convention. This is reflected in the wording of the text – Article 21 uses the term ‘particularly serious’ crime, and Article 17 uses the term ‘serious crime’.
3. EN Serbia/NS arguments could not succeed. QD leaves it to Member States to decide how to determine seriousness, and the 12 month sentences were accordingly appropriate. EN Serbia in contrast to this case concerned refoulement of a refugee. Nor did NS principle bite – NS states that where a person’s rights turns on a genuine issue of fact, people must be given the opportunity to prove their case on the facts, and cannot be barred by irrebutable presumptions of fact. The factual issue of the serious crime was resolved by a 12 month sentence, and the fact that these are not handed down for offences that are not serious.
4. HPS/DLR policies did not fetter the discretion of SSHD on the question of which offences should be treated as serious to merit exclusion through exclusion of consideration of mitigating circumstances. It was entirely rational for SSHD to adopt the courts sentence to determine whether the appropriate seriousness threshold for seriousness was reached without the need for further reinvestigation of the circumstances surrounding the offence.
5. As the DLR/HP policy did not impose additional or substantive criteria, or a further hurdle for the applicant to clear but instead, fixed how consideration of ( para 339(D)(i) of the Immigration Rules of a ‘serious crime’ is to be considered, it could not be considered to have breached the principle established in Pankina.
6. The decisions in the case of AO and HE would not fail on grounds that they were disproportionate and irrational. The rationale for the policy was legitimate. It was designed to ensure regular reviews so that FNPs could be removed if the need arose, whilst also planting roadblock in the way of FNPs settling in the UK. There was therefore no need to consider case 57/09 and C-101/09 Bundesrepublik Deutschland v B and D– this is left for another day.
7. There had been no failure to take relevant factors into consideration in the settlement decisions relatting to HE and AO. The evidence of internal discussions about those cases demonstrate that there had been an adequate canvassing of the facts.
8. N v SSHD  EWHC 1581 (Admin) (impact of delay of consideration of cases) could not assist HE or AO through inclusion of his period of residence prior to the offending.
9. There was no engagement or breach of Article 8 ECHR in the case of AO or HE given that both were able to develop their private and family lives irrespective of the policy, but even if Article 8 ECHR was engaged the uncertainity generated for them could not properly be said to be disproportionate.
10. The policy could not be said to be contary to the rule of law due as it did not: lay down an open textured discretion, do anything to offend against the principle in Pankina, and was sufficiently clear and uniform in its approach to the exercise of residual discretion.