and Alison Pickup and Monika Nollet of Asylum Aid
41.1 Since the entry into force of the 2014 Act, there is no longer any statutory power for the Tribunal to issue directions to the Home Office to 'give effect to its decision.' The giving of directions would often be unnecessary if the appeal had been allowed but they could be relevant, for example, where in the light of the vulnerability of an appellant it would be desirable that the determination be given effect promptly.
41.2 Previous versions of this guide referred to the extra-statutory power of the Tribunal to give non-binding recommendations following the determination of an appeal (such as a recommendation for a certain form or type of leave). However, current practice in the Tribunal has moved away from recommendations of this type, particularly in recognition of the limited grounds of appeal.
41.3 While the Home Office is not bound by any recommendation, it will normally be bound to accept the judge's findings of fact as to the appellant's particular circumstances when it comes to consider any future application from the appellant. Obtaining findings of fact that can support such an application can be very useful as the Home Office will be bound by these absent any material change of circumstances.
Successful appeal binding on Home Office
41.7 The Home Office is under a legal duty to give effect to the determination of the Tribunal: it is not entitled to reconsider the matter afresh (Boafo, R (on the application of) v SSHD [2002] EWCA Civ 44).
41.8 If the Home Office does not seek to appeal the determination, then the only basis upon which it can be set aside is if the Home Office uncovers 'fresh evidence … which is relevant, credible and not previously available with due diligence' (Saribal v SSHD [2002] EWHC 1542 (Admin)). The Court identified this as the test in Ladd v Marshall [1954] 1 WLR 1489.
41.9 In SSHD v TB (Jamaica) [2008] EWCA Civ 977, the Court of Appeal said that an unappealed determination of the Tribunal was binding on the Home Office save:
... where there is relevant fresh evidence that was not available at the date of hearing, or a change in the law, and the principle has no application where there is a change in circumstances or there are new events after the date of decision (para 35)
41.9A In Ullah v Secretary of State for the Home Department [2019] EWCA Civ 550, the Court of Appeal reviewed the authorities to hold that there was no inconsistency between the authorities that had applied the Ladd v Marshall test (see Saribal v SSHD [2002] EWHC 1542 (Admin)) and paragraph 35 of TB (Jamaica) [2008] EWCA Civ 977 (see para 41.9). The application of Ladd v Marshall (by analogy in the context of public law) to attempts by the Home Office to overturn final decisions on the basis of new material was confirmed again by the Court of Appeal in Al-Siri, R (On the Application Of) v Secretary of State for the Home Department [2021] EWCA Civ 113 (see at [65]-[67]).
41.10 In Chomanga (binding effect of unappealed decisions) Zimbabwe [2011] UKUT 312 (IAC), the Tribunal emphasised that in the absence of fraud or one of the exceptions in para 35 of TB (Jamaica) [2008] EWCA Civ 977 applying, it is not open to the Home Office to seek to make a new decision by reference to evidence which was available at the time of the Tribunal's determination, but which it failed to put in evidence before the Tribunal. In Mubu and others (immigration appeals – res judicata) [2012] UKUT 00398 (IAC), while rejecting the argument that there was any estoppel or application of the principle of res judicata, the Tribunal held that the Devaseelan [2002] UKIAT 00702 principles applied in such cases and that it was not open to the Home Office to seek to relitigate the same issue by reference to evidence which it could have put before the previous Tribunal had it acted with reasonable diligence.
41.10A The Tribunal in OA and Others (human rights; 'new matter'; s.120) Nigeria [2019] UKUT 00065 (IAC) noted that neither the First-tier Tribunal nor the Upper Tribunal (exercising its appellate jurisdiction) has power to direct the respondent to grant any particular form or duration of leave. The only action the Tribunal can take is to allow the appeal on the grounds specified in s.84. As such, where – as in that case – the Tribunal was given consent under s.85 (see further paras 5.5-5.6) to consider the fact that at the date of the hearing, the appellants met the Rules for ILR based on long residence, it could not direct that ILR be granted. The Tribunal further noted that since no application had been made to the Home Office under the long residence Rules (as the appellants had completed ten years' lawful continuous residence whilst the appeal was pending), an application would need to be made by the successful appellants to the Secretary of State for indefinite leave to remain (including the payment of any fee for that application). It went on to say:
37. Unless waived by the respondent, the requirement to make such an application is, thus, unaffected by the allowing of a human rights appeal. … in the absence of any policy to give successful human rights appellants a particular period of limited leave, all that the respondent is required to do is grant the appellant a period of leave that is sufficient to enable the appellant to make the application for indefinite leave to remain…
38. If an appellant, whose appeal has been allowed by reference to paragraph 276B, subsequently fails to make an application for indefinite leave to remain, then he or she will continue to be subject to such limited leave as the respondent has granted, in consequence of the allowing of the human rights appeal.
Successful asylum appeal
41.11 If the appeal has been allowed on asylum grounds, there should ordinarily be no difficulty in establishing that the appellant is entitled to be granted asylum. However, a finding that the appellant is a refugee does not automatically entitle her to a grant of asylum. Para 334 of the Immigration Rules provides that:
334. An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that:
(i) they are in the United Kingdom or have arrived at a port of entry in the United Kingdom;
(ii) they are a refugee as defined in Article 1 of the 1951 Refugee Convention;
(iii) there are no reasonable grounds for regarding them as a danger to the security of the United Kingdom in accordance with Article 33(2) of the Refugee Convention;
(iv) having been convicted by a final judgment of a particularly serious crime, they do not constitute danger to the community of the United Kingdom in accordance with Article 33(2) of the Refugee Convention as defined in Section 72 of the Nationality Immigration and Asylum Act 2002; and
(v) refusing their application would result in them being required to go (whether immediately or after the time limited by any existing leave to enter or remain) in breach of the Refugee Convention, to a country in which their life or freedom would be threatened on account of their race, religion, nationality, political opinion or membership of a particular social group.
Subparagraphs (iii) and (iv) of para 334 reflect the language of Art 33(2) of the Refugee Convention, which allows an exception to the general prohibition on refoulement of a refugee in Art 33(1). Subparagraph (v) reflects the fact that Article 33(1) of the Refugee Convention only prohibits the expulsion of a refugee to the frontiers of a territory where his life or freedom would be threatened on Convention grounds.
41.12 In SSHD v ST (Eritrea) [2010] EWCA Civ 643, [2010] 1 WLR 2858, the appellant was an Eritrean national who had lived all her life in Ethiopia. She had succeeded on asylum grounds in her appeal to the Tribunal against removal to Eritrea, but her case that she also had a well-founded fear of persecution in Ethiopia was rejected. That was irrelevant to whether she was a refugee, because she was an Eritrean national, but it was not irrelevant to the grant of asylum. Following the Tribunal's decision allowing her appeal against removal to Eritrea (but in which no direction was made that she be granted asylum), the Home Office set directions for her removal to Ethiopia. It had told the Tribunal during the appeal that it might do so. The Court of Appeal held that it was open to the Home Office to try to remove the appellant to Ethiopia, because the finding of the Tribunal that she was a refugee whose removal to Eritrea would breach the Refugee Convention did not establish that she was entitled to asylum under para 334 of the Immigration Rules, as the requirements of sub-paragraph (v) had not been established.
41.13 However, the position is different where the new matter on which the Home Office seeks to rely to refuse asylum is something which could and should have been raised in the appeal to the Tribunal, but was not, and which the Tribunal's decision effectively decides against the Home Office. So in SSHD v TB (Jamaica) [2008] EWCA Civ 977, it was not open to the Home Office to try to rely on Art 33(2) of the Refugee Convention for the first time after the determination allowing the appellant's appeal. The decision of the Tribunal that the removal of TB from the UK would breach the Refugee Convention was binding, even though Art 33(2) had not been argued before or considered by the Tribunal.
41.14 In the majority of cases the finding that the appellant is a refugee and that her removal would breach the Refugee Convention will be binding on the Home Office, and will entitle her to be granted asylum under para 334.
41.15 There have been unreasonable delays on the part of the Home Office in processing the grant of leave to successful asylum appellants (see Mersin, R (on the application of) v SSHD [2000] EWHC 348 (Admin)) and appellants are experiencing long delays in implementation of successful appeals: see letter of 6 April 2023 from ILPA to UKVI. This referenced a House of Lords Justice and Home Affairs Committee report on Family Migration published on 28 February 2023 which recommended that the Home Office be required to ensure the prompt implementation of successful appeals and routinely publish statistics on its performance in meeting that standard. If the Home Office does not act expeditiously to implement the Tribunal's determination, it will be open to you to bring judicial review proceedings against the Home Office.
Differentiation
41.15A The Nationality and Borders Act 2022 divides refugees into two groups for the purposes of differential treatment: 'Group 1' and 'Group 2' refugees. This applies to persons who made an asylum claim (including a fresh claim) on or after 28 June 2022, although in June 2023, the Immigration Minister announced that this policy would be 'paused' and changes to the Immigration Rules to reflect that were made on 17 July 2023. Under Home Office guidance on the differentiation policy before it was 'paused', asylum claimants who sought to claim asylum before the commencement, ie by calling or otherwise contacting the asylum intake unit, and who were provided with and attended an appointment after 28 June 2022, are treated as having made claims before 28 June 2022: Assessing Credibility and Refugee Status: post 28 June 2022. The decision on differential treatment will be made after a decision is made to grant refugee status. It is important to note that UNHCR – amongst many others – have strongly criticised the NABA 2022's division of refugees. In its Observations on the Nationality and Borders Bill from October 2021, UNHCR said:
8. UNHCR reiterates that the attempt to create two different classes of recognised refugees is inconsistent with the Refugee Convention and has no basis in international law. The Refugee Convention contains a single, unitary definition of refugee… [t]his defines a refugee solely according to their need for international protection because of feared persecution on the grounds of their race, religion, nationality, membership of a particular social group or political opinion. Anyone who meets that definition, and is not excluded (see Articles 1D, 1E and 1F of the Convention), is a refugee and entitled to the protections of the Refugee Convention. There is nothing in the Refugee Convention that defines a refugee or their entitlements under it according to their route of travel, choice of country of asylum, or the timing of their asylum claim.
9. As a party to the Refugee Convention, the United Kingdom has binding legal obligations towards all refugees under its jurisdiction. These must be reflected in domestic law, regardless of the refugees' mode of arrival, or the timing of their asylum claim. These obligations are set out at Articles 3-34 of the Convention. They include, but are not limited to, the following obligations directly undermined by the Bill: providing refugees who are lawfully staying in the country with "public relief" on the same terms as nationals (Article 23); not expelling refugees who are lawfully in the territory except on grounds of national security or public order, and in accordance with due process safeguards (Article 32); and facilitating all refugees' integration and naturalisation (Article 34). The Bill, however, would empower the Secretary of State to enact immigration rules discriminating between "Group 1" and "Group 2" refugees and their family members…
41.15B Section 12 NABA 2022 provides that a person will be a Group 1 refugee where the following conditions are met:
2) The requirements in this subsection are that—
(a) they have come to the United Kingdom directly from a country or territory where their life or freedom was threatened (in the sense of Article 31(1) of the Refugee Convention),
(b) they have presented themselves without delay to the authorities.
Subsections (1) to (3) of section 37 apply in relation to the interpretation of paragraphs (a) and (b) as they apply in relation to the interpretation of those requirements in Article 31(1) of the Refugee Convention.
(3) Where a refugee has entered or is present in the United Kingdom unlawfully, the additional requirement is that they can show good cause for their unlawful entry or presence.
41.15C Section 37 of NABA 2022 defines the requirements in section 12(2) as follows:
(1)A refugee is not to be taken to have come to the United Kingdom directly from a country where their life or freedom was threatened if, in coming from that country, they stopped in another country outside the United Kingdom, unless they can show that they could not reasonably be expected to have sought protection under the Refugee Convention in that country.
(2)A refugee is not to be taken to have presented themselves without delay to the authorities unless—
(a)in the case of a person who became a refugee while they were outside the United Kingdom, they made a claim for asylum as soon as reasonably practicable after their arrival in the United Kingdom;
(b)in the case of a person who became a refugee while they were in the United Kingdom—
(i)if their presence in the United Kingdom was lawful at that time, they made a claim for asylum before the time when their presence in the United Kingdom became unlawful;
(ii)if their presence in the United Kingdom was unlawful at that time, they made a claim for asylum as soon as reasonably practicable after they became aware of their need for protection under the Refugee Convention.
(3)For the purposes of subsection (2)(b), a person's presence in the United Kingdom is unlawful if they require leave to enter or remain and do not have it.
41.15D As such, in general terms, refugees who have delayed in claiming asylum or who have not arrived in the UK directly from the country of persecution but who have travelled through other countries before arriving in the UK, will – if their claims are not deemed inadmissible – be considered to be Group 2 refugees.
41.15E A non-exhaustive list of factors to be taken into consideration by decision-makers in deciding whether a person could reasonably have been expected to claim asylum in a country through which s/he travelled en route to the UK are set out in the Assessing Credibility and Refugee Status Post 29 June 2022 guidance (p69):
• the time a claimant spent in a third country – there is no specific timeframe within which it could be deemed reasonable for an individual to be able to claim asylum in a third country, but it is unlikely that a matter of hours in a third country will be deemed reasonable - you must consider the time it takes for an asylum claim to be lodged in a third country, for example the length of time for the registration of the claim with the authorities
• the access to an effective asylum system – in order for it to be deemed reasonable to claim asylum in a third country, the country must have
• a functioning asylum system which was accessible to the claimant and has safeguards to prevent wrongful refoulement such as access to legal aid during the application process and a right of appeal in the case of refusals - the asylum system in the third country must also have necessary protections in place for claimants with protected characteristics or vulnerabilities. In order to decide that a country is safe for a particular individual, you should refer to the relevant country information, including, but not limited to country policy information notes. Where there is no or insufficient information on country policy information notes regarding the country's asylum system, you must make a Country Policy Information request
• if it was practical for an asylum claim to be made – you must consider whether the individual had the necessary freedoms and relevant information regarding the asylum system to make a protection claim in the third country - the location of the claimant in the third country in comparison to the location for registering protection claims is another relevant factor.
41.15F The Assessing Credibility and Refugee Status Post 29 June 2022 guidance also requires decision-makers to consider any mitigating factors in addition to the enumerated factors as to why a claim could not have reasonably been made in a third country. The guidance (pp70-71) also provides a series of example scenarios of hypothetical circumstances, some of which may be useful to your client.
41.15G The Assessing Credibility and Refugee Status Post 29 June 2022 guidance further contains factors to be taken into account in considering whether an asylum claimant claimed 'without delay' for the purposes of section 12(2) of NABA 2022. These include: how your client entered the UK; her ability to access legal advice; whether there were any immigration officers present upon her arrival; any mental or physical health conditions that may impair her ability to claim asylum; distance to the asylum intake; and access to transport. The guidance further usefully refers to a number of factors, including trauma, fear of detention. Language difficulties and erroneous advice from smugglers or others which may explain any delay in claiming asylum (pp 72-73).
41.15H As for persons who were already present in the UK when their country and/or personal situation changed such that they require protection as a refugee, the guidance recognises that it will often be difficult to identify exactly when a person first had a need for protection or when they first became aware of it and that
In some situations, a refugee may also reasonably defer their claim, believing the situation in their country will improve, and claim only when they consider the situation continues to deteriorate without a sign of improvement and the risk to them therefore endures. You should not generally hold a claimant's desire to return to their country of origin against them in this consideration, but you must still consider whether the length of delay in claiming asylum is proportionate to the desire to return to the country of origin. (pp73-74)
41.15I By section 12 of NABA 2022, Group 2 refugees may be treated differently from Group 1 refugees. The statute provides non-exhaustive examples of the ways in which they may be treated differently, such as in respect of the length of limited leave to remain granted in recognition of refugee status, the route to indefinite leave to remain, recourse to public funds and family reunion (section 12(5)). The differential treatment is set out in the Immigration Rules. Para 339QA distinguishes between 5 years' leave for Group 1 refugees after which point they become eligible for settlement (as was the case for all refugees prior to 22 June 2022) and temporary refugee permission of 30 months, absent exceptional circumstances. Under para 339QB, all recipients of humanitarian protection will receive 30 months' leave (temporary humanitarian permission). There is no specific route to settlement for recipients of temporary refuge or humanitarian protection, however the 30 months' leave is renewable on application and if 10 years' lawful residence is accumulated, a person may apply for settlement under the long residence rules. Whilst there is nothing yet in the Immigration Rules barring access of Group 2 refugees to public funds, it is clear from the examples in section 12(5) that it intends to do so.
41.15J In respect of refugee family reunion, whilst Group 1 refugees remain subject to the requirements of paragraphs 352A (in the case of partners) and 352D (in the case of children), Group 2 refugees are required to show that there are insurmountable obstacles to family reunion anywhere else and that refusal of the application would breach the UK's obligations under Article 8 ECHR (see paragraphs 352AB and 352DA; and 352FA(vii) and 352FG(vii) for those with temporary humanitarian permission).
41.15K If, following a positive decision on your client's refugee status, a caseworker provisionally decides that your client is a Group 2 refugee, your client will be notified of the provisional Group 2 decision and the reasons for it and will be given 10 working days to provide a rebuttal to that provisional decision, following which a final decision will be made. If you anticipate from your client's instructions that a Group 2 decision is likely to be made, for example in relation to the countries through which she travelled to come to the UK or when she applied for asylum, it will be important to advise her with a view to responding to the differentiation aspect of her case quickly following the decision that she is a refugee. As with inadmissibility and certification decisions, a challenge to a decision that your client is a Group 2 refugee will be by way of judicial review.
Successful human rights appeal
41.16 If the appeal is not allowed on asylum grounds, the Tribunal will determine whether the appellant is entitled to subsidiary protection under the Qualification Directive which has been implemented in the UK through the provision for granting Humanitarian Protection under para 339C-339CA of the Immigration Rules. This provides that:
339C A person will be granted humanitarian protection in the United Kingdom if the Secretary of State is satisfied that:
(i) they are in the United Kingdom or have arrived at a port of entry in the United Kingdom;
(ii) they are not a refugee within the meaning of Article 1 of the 1951 Refugee Convention;
(iii) substantial grounds have been shown for believing that the asylum applicant concerned, if returned to the country of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail themselves of the protection of that country; and
(iv) they are not excluded from a grant of humanitarian protection.
339CA For the purposes of paragraph 339, serious harm consists of:
(i) the death penalty or execution;
(ii) unlawful killing;
(iii) torture or inhuman or degrading treatment or punishment of a person in the country of return; or
(iv) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.
The last criterion implemented Article 15(c) of the Qualification Directive.
41.17 As with refugee protection, there are also exclusions from humanitarian protection, as set out in para 339D of the Immigration Rules. These are wider than the exclusions from refugee status:
339D. An asylum applicant is excluded from a grant of humanitarian protection under paragraph 339C (iv) where the Secretary of State is satisfied that there are serious reasons for considering that the asylum applicant:
(i) has committed a crime against peace, a war crime, a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; or
(ii) has committed, instigated or otherwise participated in the commission of a serious non-political crime outside the UK prior to their admission to the UK as a person granted humanitarian protection; or
(iii) has been guilty of acts contrary to the purposes and principles of the United Nations; or
(iv) having been convicted by a final judgement of a particularly serious crime (as defined in Section 72 of the Nationality, Immigration and Asylum Act 2002), constitutes a danger to the community of the UK; or
(v) is a danger to the security of the UK.
339DA. In 339D(ii):
(i) the reference to a serious non-political crime includes a particularly cruel action, even if it is committed with an allegedly political objective; and
(ii) the reference to a crime being committed by a person outside the UK prior to their admission to the UK as a person granted humanitarian protection includes a crime committed by that person at any time up to and including the day on which they are issued with a relevant biometric immigration document by the Secretary of State.
41.18 If the Tribunal determines that the appellant qualifies for Humanitarian Protection, the Home Office will then be under the same duty to grant leave under the Immigration Rules as applies to the grant of refugee leave following a successful asylum appeal. Providing that there is no suggestion that the appellant could safely be removed (and admitted) to a third country where there are not substantial grounds for believing that she would be exposed to serious harm, the grant of Humanitarian Protection should follow. The same option exists to challenge the Home Office by judicial review if leave is not granted within a reasonable period.
41.19 If the Tribunal allows the human rights appeal on Article 3 grounds but finds that the appellant is "excluded" from refugee status and Humanitarian Protection, they will normally be subject to the policy on Restricted Leave. The Restricted Leave policy applies where the appellant is excluded from refugee status under Article 1F of the Refugee Convention; where Article 33(2) applies; and where she is excluded from Humanitarian Protection on equivalent grounds (i.e. under 339C(i), (ii) or (iii), save where the only reason for exclusion is the commission of a 'serious crime' which would not lead to exclusion under the Refugee Convention). Restricted leave is ordinarily granted for a maximum of six months at a time and normally subject to stringent conditions as to residence, reporting, employment and education or training.
41.20 If an appellant succeeds under an article of the ECHR other than Article 3, she will be granted limited leave to remain (previously called Discretionary leave). However, the API on Humanitarian Protection also states that in certain circumstances, appellants who succeed under Article 3 and do not fall within the exclusion clauses for Humanitarian Protection will nevertheless be granted only Discretionary Leave (now limited leave to remain). The API states:
Cases where it is claimed that removal would breach Article 3 on medical grounds are not usually eligible for humanitarian protection. In M'Bodj v Kingdom of Belgium (Case C-542/13) [2015] 1 WLR 3059, the Court of Justice of the European Union (CJEU) confirmed that subsidiary protection status requires that the harm from which the applicant seeks protection must emanate from the conduct of a third party, and therefore cannot simply be the result of a naturally occurring illness combined with general shortcomings in the health system of the country of proposed return. As such cases raising medical or mental health issues must usually be considered under the Discretionary Leave policy.
41.21 In C-542/13 Mohamed M'Bodj v Etat Belge, referred to in the API, the CJEU upheld this interpretation of the Qualification Directive, holding that even where Article 3 might prohibit a person's removal on health grounds:
... the risk of deterioration in the health of a third country national suffering from a serious illness as a result of the absence of appropriate treatment in his country of origin is not sufficient, unless that third country national is intentionally deprived of health care, to warrant that person being granted subsidiary protection.
41.21A As the API states, this was also the interpretation accepted as correct by the Court of Appeal in MP (Sri Lanka) v SSHD [2014] EWCA Civ 829. MP is a Sri Lankan national who on the findings of the Upper Tribunal was still suffering the effects of torture inflicted in his country of origin, and was at risk of substantial deterioration in his mental health if returned and a serious risk of suicide, in particular because of the lack of appropriate care for torture survivors in Sri Lanka. On appeal to the Supreme Court, it made a reference to the Court of Justice of the EU [2016] UKSC 32 on the question of entitlement to Humanitarian Protection. In its judgment (Case C-353/16 MP v SSHD (24 April 2018)), the Court of Justice, after holding that MP's removal to Sri Lanka would breach the Charter of Fundamental Rights (see 41.22C below), distinguished M'Bodj (at [47]) and held that it was relevant to take account of both the cause of the current state of health ("acts of torture inflicted by the authorities of his country of origin in the past") and the fact that his mental health condition would be substantially aggravated by return as a result of that trauma (at [48]). It explained that in the circumstances, MP's entitlement to subsidiary protection would depend on whether he was likely "to face a risk of being intentionally deprived of appropriate care for the physical and mental after-effects resulting from the torture he was subjected to by the authorities of that country" (at [57]). This might be the case if, inter alia, he "is at risk of committing suicide because of the trauma resulting from the torture he was subjected to by the authorities of his country of origin" but "it is clear that those authorities, notwithstanding their obligation under Article 14 of the Convention against Torture [to make available "the resources necessary to achieve as full a rehabilitation as possible" to victims of torture], are not prepared to provide for his rehabilitation". Such a refusal to provide for the rehabilitation of victims of torture, in the face of a specific international law obligation to do so, would constitute, in the Court's view, an intentional deprivation of appropriate care entitling the appellant to subsidiary protection. Further, an intentional deprivation of healthcare might be established by evidence showing the existence of "a discriminatory policy as regards access to health care, thus making it more difficult for certain ethnic groups or certain groups of individuals… to obtain access to appropriate care for the physical and mental after-effects of the torture perpetrated by those authorities".
41.22A The threshold for the engagement of Article 3 in medical cases has been significantly altered since the Supreme Court's judgment in AM (Zimbabwe) v SSHD [2020] UKSC 17, which followed the Grand Chamber of the European Court of Human Rights' restatement of Article 3 in respect of medical cases in Paposhvili v United Kingdom, 13 December 2016 (Application No 41738/10). Until AM (Zimbabwe), UK courts had been obliged – as a matter of domestic precedent – to follow the approach laid down in N v SSHD [2005] UKHL 31 (following the previous Strasbourg court judgment of N v UK (App no. 26565/05)), which essentially limited violations of Article 3 in the medical context to death bed cases. After the Supreme Court's judgment in AM (Zimbabwe), Home Office decision makers will be required to consider whether removal will result in a serious, rapid and irreversible decline in health which causes either intense suffering or a significant reduction in life expectancy. The Grand Chamber noted, at [181] that the application of Article 3 'only in cases where the person facing expulsion is close to death, which has been its practice since the judgment in N. v. the United Kingdom, has deprived aliens who are seriously ill, but whose condition is less critical, of the benefit of that provision.' It concluded:
183. The Court considers that the "other very exceptional cases" within the meaning of the judgment in N. v. the United Kingdom (§ 43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.
The AM (Zimbabwe) threshold equally applies in cases relating to mental ill health and/or suicide risk: MY (Suicide risk after Paposhvili) [2021] UKUT 00232 (IAC) and the Grand Chamber decision in Savran v Denmark (App No 57467/15). See also the discussion at para 1.78D of cases involving 'material deprivation'.
41.24 There is only provision under the Immigration Rules for standard grants of limited leave for those whose appeal is allowed on human rights grounds but do not qualify for humanitarian protection, that is 30 months (2 and a half years). As indicated above, this does not apply to those who are excluded from refugee status or Humanitarian Protection.
41.27 In some circumstances it may be appropriate to grant limited leave to remain for longer (or shorter) than the 'standard' period of 30 months, including indefinite leave to remain in certain limited circumstances. The SSHD has a discretion to grant a non-standard period of leave, including ILR, outside of the Rules under s 3(1)(b) of the IA 1971:
3 General provisions for regulation and control.
(1) Except as otherwise provided by or under this Act, where a person is not a British citizen— […]
(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period;
41.28 In determining whether to exercise that discretion, the Home Office has adopted policy which is contained in its Leave outside the Immigration Rules policy guidance for decision makers and in its Family policy. The test for determining when to grant ILR outside of the Rules is set high: circumstances 'so exceptional that they warrant it' (Leave outside the Rules policy) or 'truly exceptional' circumstances (Family policy). The policy considerations underpinning the high threshold are explained in the policies on the basis that ILR is not an 'automatic entitlement' but a 'privilege' and 'unless there are truly exceptional reasons, the expectation is that applicants should serve a probationary period of limited leave before being eligible to apply for indefinite leave to remain.'
41.28A If you have the evidence to support such an application, you may wish to make representations to the Home Office that a longer period of leave, or indefinite leave to remain, should be granted in cases in which it is clear that a grant of only 30 months' leave is likely to be detrimental for the appellant or any children affected by that decision. Your remedy from any refusal to grant a non-standard period of leave will be by way of judicial review on traditional public law grounds and/or, depending on the facts of your case, a claim that the refusal has violated your client's rights protected by Article 8 ECHR.
41.28B Note, however, that for Article 8 cases where an appeal is allowed outside of the Immigration Rules, the Leave outside of the Rules policy envisages circumstances where no leave will be granted despite a successful human rights appeal:
Deferring
There may be factors raised which will be sufficiently short lived, that it is proportionate to refuse the application or claim on and give an undertaking not to remove the individual or expect them to leave the UK voluntarily until the circumstances have changed. Where it is considered that the person can leave the UK within a short time of the date of decision, it will normally be appropriate to refuse the application or claim outright, not grant a period of LOTR and defer removal until such time as it is possible.
Findings of fact relevant to future applications
41.43 The Home Office is bound to accept any relevant finding of fact by the judge concerning the appellant's particular circumstances (at least where the judge heard oral evidence) unless fresh evidence has come to light that undermines the finding (SSHD v Danaei [1998] Imm AR 84; see also paras 41.8-10 above).
41.44 The Home Office will then have to consider any subsequent application on the basis of the findings of fact made by the judge, even if it has previously disputed these facts. This is important in the context of the system of active review which now applies to grants of refugee status and Humanitarian Protection, and will be particularly important for those who are excluded from these statuses and granted only short periods of discretionary leave to remain or restricted leave. It may bring your client within a beneficial Home Office policy from which she otherwise would have been excluded. It may also provide the essential basis for any application outside the Immigration Rules on compassionate or humanitarian grounds.
41.45 Caselaw on the protection guaranteed by the ECHR and the Refugee Convention has also highlighted the scope that remains for discretionary humanitarian protection outwith the strict requirements of international law. In Ullah v Special Adjudicator [2002] EWCA Civ 1856, the Court of Appeal held that a human rights appeal based solely on feared treatment in the country of origin could not succeed unless the article 3 threshold was met - a position revised by the decision of the House of Lords in the same case- but added that:
Where such treatment falls outside Art 3, there may be cases which justify the grant of exceptional leave on humanitarian grounds. The decision of the Secretary of State in such cases will be subject to the ordinary principles of judicial review but not to the constraints of the European Convention.
41.46 Similarly, in N v SSHD [2005] UKHL 31 [2005] 2 AC 296, Lord Brown said that
99... Whilst, for the reasons given, I would not regard the return of this appellant to Uganda as a violation of article 3, it by no means follows that the Secretary of State is bound to deport her. Plainly he has the widest discretion in the matter. The likely impact upon immigration control (and, doubtless, National Health Service resources) of an adverse article 3 ruling in the case would be one thing; the favourable exercise of an administrative discretion in this individual case quite another. I am not saying that the Secretary of State should now exercise his discretion in the appellant's favour, still less that a refusal to do so would be challengeable; only that the appellant's return would not inevitably follow from the failure of her appeal.
41.47 Such findings may also be relied upon if conditions subsequently change in the country of origin. For example, the judge may have made a positive credibility finding but dismissed the appeal because there is insufficient evidence of present risk. If conditions subsequently deteriorate in the country of origin, the Home Office will normally have to consider any fresh application on the basis of the judge's positive credibility finding as to past events.
Remedies under Part 4 of the 2014 Procedure Rules other than appeal: slip rule, set aside, review
41.48 Onward appeal from First-tier determinations is outside the scope of the BPG. Note, however, that insofar as the Tribunal has made an obvious error of law or a clear accidental slip, you will want to consider requesting the Tribunal use its powers of review under rule 35 or the 'slip rule' under rule 31 of the 2014 Procedure Rules, respectively. In MH (review; slip rule; church witnesses) Iran [2020] UKUT 00125 (IAC), the Tribunal noted that these provisions (contained within Part 4 of the 2014 Procedure Rules) are part of a 'toolkit' of powers designed to save time and expense in furtherance of the overriding objective. Rule 36 of the Procedure Rules provides that: '[t]he Tribunal may treat an application for a decision to be corrected, set aside or reviewed, or for permission to appeal against a decision, as an application for any other one of those things.' In your application, it is prudent, however, to identify what specifically you are seeking to correct.
41.49 In MH (review; slip rule; church witnesses) Iran [2020] UKUT 00125 (IAC) the Tribunal noted that the 'slip rule' in Rule 31 of the 2014 Procedure Rules may be used to correct a clerical mistake or other accidental slip or omission including '[w]here a decision concludes by stating an outcome which is clearly at odds with the intention of the judge'. The Court of Appeal in Devani [2020] EWCA Civ 612 found similarly and gave the following guidance (per Underhill LJ at [23]):
The essential distinction to bear in mind in considering the application of the slip rule, in any of its legislative formulations, is between the case where the order in question does not express what the Court actually intended at the moment of promulgation and the case where it does express what the Court intended at the time but it subsequently appreciates that it should have intended something different: see, most recently, para. 18 of my judgment in AS (Afghanistan) v Secretary of State for the Home Department [2019] EWCA Civ 208, [2019] 1 WLR 3065 (p. 3071C). As I say there, how the distinction applies in a particular case may not always be straightforward, but the concept is clear. The proposition which the UT drew from the case to which it referred and from the White Book commentary, namely that the slip rule "cannot be used to change the substance of a judgment or order", is perfectly apt as a reference to the second of the two classes of case that I have mentioned; but it appears from the UT's actual decision that it understood it to mean that the slip rule could not be used in a case where the correction would produce a decision with the opposite effect to that promulgated. With all respect, that is simply wrong. In the case of a simple failure of expression – most obviously a straightforward slip of the pen – the error can and should be corrected even if it alters the outcome (as initially expressed) by 180°.
41.50 If your client's case was subject to a decision by the FTT not to conduct a hearing which resulted in a determination disposing of proceedings (see para 7.5A-7.5D), an application may be made under rule 32 of the Procedure Rules to set the determination aside. The rule requires setting aside to be in the interests of justice and that one or more of four conditions are met namely:
The conditions are—
(a) a document relating to the proceedings was not provided to, or was not received at an appropriate time by, a party or a party's representative;
(b) a document relating to the proceedings was not provided to the Tribunal at an appropriate time;
(c) a party, or a party's representative, was not present at a hearing related to the proceedings; or
(d) there has been some other procedural irregularity in the proceedings.
By rule 32(3), an application to set aside must be made within 28 days on which the party was sent the notice of decision, if the appellant is outside of the UK, or 14 days in any other case. However, the threshold for interference is high. In EP (Albania) & Ors (rule 34 decisions; setting aside) [2021] UKUT 00233 (IAC), the Upper Tribunal considered a number of linked cases which had been determined in the Upper Tribunal without a hearing. The Tribunal rejected the submission that as a consequence of the judgment in R (The Joint Council for the Welfare of Immigrants) v The President of the Upper Tribunal (Immigration and Asylum Chamber) [2020] EWHC 3103 (Admin), every decision to proceed without a hearing taken following the issue of the Upper Tribunal's Presidential Guidance Note amounted to a procedural irregularity. Rather, it found that the question whether a decision to determine an appeal without a hearing was a breach of the requirement to act fairly needed to be determined on a case-by-case basis. Where a procedural irregularity is established, the Tribunal held that it was likely to be in the interests of justice that the decision be set aside.