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Case Law Update: Disabilities, Female Students, False Imprisonment and Afghan Sikhs

Examining the Restricted Leave Policy

R (on the application of MBT) v Secretary of State for the Home Department (restricted leave; ILR; disability discrimination) [2019] UKUT 414 (IAC) a Judicial Review application in the Upper Tribunal, considered whether the Secretary of State’s ‘Restricted Leave Policy’ engaged Article 8 ECHR and to what extent it should be considered. 

The headnote sums up the case effectively: 

(i) A decision of the Secretary of State not to grant indefinite leave to remain to a person subject to the restricted leave policy (“the RL policy”) does not normally engage Article 8 of the European Convention on Human Rights. However, Article 8 may be engaged by a decision to refuse to grant indefinite leave to remain where, for example, the poor state of an individual’s mental and physical health is such that regular, repeated grants of restricted leave are capable of having a distinct and acute impact on the health of the individual concerned.

 (ii) Once Article 8 is engaged by a decision to refuse indefinite leave to remain under the RL policy, the import of Article 8 will be inherently fact-specific and must be considered in light of the criteria set out in MS (India) and MT (Tunisia) v Secretary of State for the Home Department [2017] EWCA Civ 1190. The views of the Secretary of State attract weight, given her institutional competence on matters relating to the public interest and the United Kingdom’s reputation as a guardian of the international rule of law.

 (iii) To obtain indefinite leave to remain under the Immigration Rules on the basis of long (partially unlawful) residence in cases involving no suitability concerns, paragraph 276ADE(1)(iii), taken with paragraph 276DE, requires a total of 30 years’ residence. A person who satisfies paragraph 276ADE(1)(iii) following 20 years’ residence is merely entitled to 30 months’ limited leave to remain on the ten-year route to settlement.

 (iv) Paragraph 16 of Schedule 3 to the Equality Act 2010 disapplies the prohibition against disability discrimination contained in section 29 of the Act in relation to a decision to grant restricted leave that is taken in connection with a decision to refuse an application for a more beneficial category of leave in the circumstances set out in paragraph 16(3).

 (v) To the extent that paragraph 16 of Schedule 3 to the Equality Act 2010 disapplies the prohibition against discrimination on grounds of disability, there is a corresponding modification to the public sector equality duty imposed on the Secretary of State by section 149 of the Act.

A lack of provisions for women subject to domestic abuse 

In the Admin Court OA v Secretary of State for Education [2020] EWHC 276 (Admin) found that the requirement in the Education (Student Support) Regulations 2011 that student loan applicants should be lawfully resident in the UK for three years prior to their course beginning, indirectly discriminated against women and violated Article 14 ECHR because it did not include any provision for students who had gaps in lawful residence as a result of domestic abuse and violence suffered. 

False imprisonment

In the Supreme Court R (on the application of Jallo v SSHD [2020] UKSC 4 found that the imposition of some curfew requirements of a migrant subject to deportation could constitute imprisonment for the purposes of ‘false imprisonment’.  

Afghan Sikhs

In the European Court of Human Rights ASN and Others v, the Netherlands (Application numbers 68377/17 and 530/18) found that Sikhs in Afghanistan were not, as a group, systematically exposed to ill-treatment in breach of Article 3 ECHR.  

To learn more about these cases or immigration law, feel free to contact our legal consultants at 0207 118 4546 or via email at info@westkin.com

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