RN v Secretary of State for the Home Department
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- LORD JUSTICE MAURICE KAY
- LADY JUSTICE SHARP
Areas of Law
- Immigration Law
- Administrative Law
- Human Rights Law
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
In this case, the appellant, a Sri Lankan national, challenged the Secretary of State's delay in granting indefinite leave to remain (ILR) after he successfully argued in the European Court of Human Rights that his removal to Sri Lanka would contravene Article 3 of the European Convention on Human Rights. Despite this victory, the appellant was convicted of a sexual offense in the UK, complicating his immigration status. Ultimately, the Court of Appeal dismissed the appellant's claims of unlawful delay and conspicuous unfairness, concluding that the Secretary of State's actions, while slow, did not amount to illegality.
Judgment
Lord Justice Maurice Kay:
The appellant has been a successful human rights litigant. In NA v United Kingdom (2009) 48 EHRR 15 the European Court of Human Rights (ECtHR) held that for the Secretary of State to remove him to his native Sri Lanka would involve a contravention of Article 3 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) because of risk to him in that country. The present appeal is concerned with the aftermath of that ruling. The Secretary of State did not then seek to remove him, as she had sought to do before the case in the ECtHR. He was granted temporary admission subject to a weekly reporting requirement. By May 2009 a Minister of State had approved a decision that he would be granted six months discretionary leave to remain although that decision was not formalised at the time. Two things were of continuing concern to the Secretary of State. One was that the appellant had been convicted of a sexual offence on 10 February 2006 and had manifested other sexual misconduct. He remained on the Sex Offenders Register (SOR) as a result of the 2006 conviction. The second point was that the situation in Sri Lanka was changing. The long civil war came to an end in May 2009. The Secretary of State had reason to believe that, whilst return would have been unlawful at the time of the ECtHR judgment (17 July 2008), a lawful return might now be possible.
I shall return to the details of what did and did not happen between 17 July 2008 and 6 December 2012. However, on that date the Secretary of State decided to remove the appellant to Sri Lanka in the light of the changed circumstances there. It was considered that the Article 3 risk had passed. The present litigation takes the form of a challenge to that decision. The case for the appellant is that the Secretary of State unlawfully denied him a grant of indefinite leave to remain (ILR) in 2009. The application for judicial review failed before Burnett J: [2013] EWHC 2383 (QB) . The appellant now has permission to appeal to this Court on two grounds: (1) that the Secretary of State’s treatment of the case following the decision of the ECtHR was unlawful by reason of delay and “conspicuous unfairness”; alternatively, (2) he should have been granted ILR as a “legacy” case pursuant to the Legacy Scheme which was in force at the material time.
Ground 1: unlawfulness, delay and conspicuous unfairness
I now return to the factual history against which this primary groun