by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup of the Public Law Project
~ 2018 Updated Edition ~
Giving effect to a successful appeal: directions
Successful appeal binding on Home Office
Successful asylum appeal
Successful human rights appeal
Appeals arising from directions
Findings of fact relevant to future applications
41.1 Prior to the amendments to the 2002 Act by the 2014 Act, the Tribunal was empowered to issue a direction to 'give effect to its decision' where it had allowed the appeal. The direction was binding on the Home Office unless it successfully appealed against it. This power has been repealed, except in relation to those few remaining appeals to which the new appeals regime does not apply (see the preface to the 2015 update of the Best Practice Guide for an explanation of the cases to which these provisions do not apply).
41.2 Although the power to give a direction has been removed by statute, the Tribunal retains the ability to give a recommendation following determination of the appeal. A recommendation is extra-statutory and can be made whether the judge has allowed or dismissed the appeal. If he allows the appeal, he may 'recommend' a particular form and period of leave. If he dismisses the appeal, the judge may recommend that leave be granted on other grounds. However, recommendations are not binding and Home Office policy is that they will not be followed unless the Home Office agrees with them. As such, the utility of seeking a recommendation is significantly limited and they are now rarely sought or granted.
41.3 While the Home Office is not bound by a 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 is often much more useful than obtaining a recommendation that the Home Office should grant the application.
41.4 As noted above, s.87 of the 2002 Act has been repealed by changes to the system of asylum and immigration appeals brought about by the 2014 Act. The former appeals regime applies now only to a residual number of cases. The following paragraphs apply only to that limited cohort.
Successful appeal: direction
(1) If the Tribunal allows an appeal under section 82, 83 or 83A it may give a direction for the purpose of giving effect to its decision.
(2) A person responsible for making an immigration decision shall act in accordance with any relevant direction under subsection (1).
(3) But a direction under this section shall not have effect while—
(a) an application for permission to appeal under section 11 or 13 of the Tribunals, Courts and Enforcement Act 2007 could be made or is awaiting determination,
(b) permission to appeal to the Upper Tribunal or a court under either of those sections has been granted and the appeal is awaiting determination, or
(c) an appeal has been remitted under section 12 or 14 of that Act and is awaiting determination.
(4) A direction under subsection (1) shall be treated as part of the Tribunal's decision on the appeal for the purposes of section 11 of the Tribunals, Courts and Enforcement Act 2007
41.5 A direction is often unnecessary for giving effect to a determination allowing the appeal. However, the Tribunal has emphasised that under s. 87, unlike the predecessor provisions in the 1999 Act, the Tribunal's discretion to make a direction is not dependent on it being necessary for a direction to be made. A direction may be made for example where it is desirable that the determination is given effect to promptly because of the vulnerability of the appellant: SP (allowed appeal: directions) South Africa  UKUT 188 (IAC).
41.7 The Home Office is under a legal duty to give effect to the determination of the Tribunal (regardless of whether, in respect of appeals under the predecessor appeals regime, it was accompanied by directions): it is not entitled to reconsider the matter afresh (Boafo, R (on the application of) v SSHD  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 of fraud which is relevant, credible and not previously available with due diligence' (Saribal v SSHD  EWHC 1542 (Admin)).
41.9 In SSHD v TB (Jamaica)  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)
41.10 In Chomanga (binding effect of unappealed decisions) Zimbabwe  UKUT 312 (IAC), the Tribunal emphasised that in the absence of fraud or one of the exceptions in para 35 of TB (Jamaica)  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)  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  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.
41.11 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 has arrived at a port of entry in the United Kingdom;
(ii) they are a refugee, as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;
(iii) there are no reasonable grounds for regarding them as a danger to the security of the United Kingdom;
(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; 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 Geneva 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)  EWCA Civ 643,  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)  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. In the small group of cases where the power under the old s.87 of the 2002 Act remains available, however, you should seek a specific direction if you have any doubt about the Home Office's intentions.
41.15 In the past, 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  EWHC 348 (Admin)). But 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.
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 is implemented in the UK through the provision for granting Humanitarian Protection under para 339C of the Immigration Rules. This provides that
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 do not qualify as a refugee as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;
(iii) substantial grounds have been shown for believing that the person 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.
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 implements Article 15(c) of the Qualification Directive.
339D. A person is excluded from a grant of humanitarian protection under paragraph 339C (iv) where the Secretary of State is satisfied that:
(i) there are serious reasons for considering that they have committed a crime against peace, a war crime, a crime against humanity, or any other serious crime or instigated or otherwise participated in such crimes;
(ii) there are serious reasons for considering that they are guilty of acts contrary to the purposes and principles of the United Nations or has committed, prepared or instigated such acts or encouraged or induced others to commit, prepare or instigate such acts;
(iii) there are serious reasons for considering that they constitute a danger to the community or to the security of the United Kingdom; or
(iv) there are serious reasons for considering that they have committed a serious crime; or
(v) prior to their admission to the United Kingdom the person committed a crime outside the scope of (i) and (ii) that would be punishable by imprisonment were it committed in the United Kingdom and the person left their country of origin solely in order to avoid sanctions resulting from the crime.
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 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. The API states:
Cases where it is claimed that removal would breach Article 3 on medical grounds are not usually eligible for HP. In M'Bodj v Kingdom of Belgium (Case C-542/13)  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.
This analysis applies equally to cases where a physical or mental illness may have arisen as a result of torture or serious harm in the past, but where there is no real risk of similar treatment occurring in the future. This position is supported by the decision of the Court of Appeal in MP (Sri Lanka)  EWCA Civ 829 (see paragraph 48 in particular). This case is under appeal to the Supreme Court, and the latter has made a relevant referral to the CJEU. However, the Secretary of State for the Home Department's (SSHDs) position remains that set out above.
The exception to this analysis is where someone claims that they will be denied future treatment for a Refugee Convention reason. In such circumstances it may be appropriate to grant refugee status or HP.
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  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  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 ) 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 ). 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 ). 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".
41.22 The API on Discretionary Leave addresses Article 3 medical cases thus (emphasis in original):
This category applies to both asylum and non-asylum cases. …
An applicant seeking leave to remain on the basis of a serious medical condition may seek to rely on ECHR Article 3 and/or Article 8. In most circumstances, a person cannot rely on Article 3 to avoid return on the basis that they require medical assistance in the UK. The improvement or stabilisation in a person's medical condition resulting from treatment in the UK and the prospect of serious or fatal relapse on expulsion (ie deportation or removal from, or a requirement to leave, the UK) will not in themselves render expulsion inhuman treatment contrary to Article 3.
The threshold set by Article 3 is very high. To meet the threshold, a person will need to show that there are exceptional circumstances in their case which militate against return. Taken together, the relevant case law of D v United Kingdom  25 EHRR 423 and N v SSHD  UKHL31 suggests that exceptional circumstances will arise when a person is in the final stages of a terminal illness, without the prospect of medical care or the support of family or friends or palliative care (ie relief of the pain, symptoms and stress caused by a serious illness and the approach of death) on return. The House of Lords' decision in N was upheld by the European Court of Human Rights in N v UK (2008) 47 EHRR 39, and recently affirmed by the Court of Appeal in GS (India) & Ors v The Secretary of State for the Home Department  EWCA Civ 40, in which Lord Justice Laws confirmed the very high threshold, stating that the case-law suggested that the 'exceptional' class of case is 'confined to deathbed cases' (paragraph 66).
41.22A The API has not, however, been amended to take account of the Grand Chamber of the European Court of Human Rights' seminal judgment in Paposhvili v United Kingdom, 13 December 2016 (Application No 41738/10), and the restatement of Article 3 in respect of medical cases. The Court notes, at  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 concludes:
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.
41.22B The Upper Tribunal in EA & Ors (Article 3 medical cases – Paposhvili not applicable)  UKUT 00445 (IAC) stated that since the Paposhvili test is a departure from N v UK (Application no. 26565/05), which will require a departure from UK precedent binding on the Tribunal (including GS (India) v SSHD  EWCA Civ 40) it was not currently open to the Tribunal to follow it. The application of Paposhvili will require a decision by the Supreme Court. In the meantime, the Court of Appeal held in AM (Zimbabwe) v SSHD  EWCA Civ 64 that any case in which the appellant would succeed under Paposhvili, but fail under N, should be stayed pending the decision of the Supreme Court on the point. The Court of Appeal considered that in order to decide whether such stays should be granted, it was necessary to consider the extent to which the European Court had departed from N v UK . It concluded that paragraph 183 of Paposhvili represented a "modest" relaxation of the high threshold laid down in the N case. It described that change thus (at ):
…the protection of art.3 against removal in medical cases is now not confined to deathbed cases where death is already imminent when the applicant is in the removing country. It extends to cases where "substantial grounds have been shown for believing that [the applicant], 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 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" (at ). This means cases where the applicant faces a real risk of rapidly experiencing intense suffering (i.e. to the art.3 standard) in the receiving state because of their illness and the non-availability there of treatment which is available to them in the removing state or faces a real risk of death within a short time in the receiving state for the same reason. In other words, the boundary of art.3 protection has been shifted from being defined by imminence of death in the removing state (even with the treatment available there) to being defined by the imminence (i.e. likely "rapid" experience) of intense suffering or death in the receiving state, which may only occur because of the non-availability in that state of the treatment which had previously been available in the removing state.
41.22C In Case C-353/16 MP v SSHD, the Court of Justice cited and relied on the decision in Paposhvili when confirming that Article 4 of the EU Charter of Fundamental Rights would "preclude a Member State from expelling a third country national where such expulsion would, in essence, result in significant and permanent deterioration of that person's mental health disorders, particularly where, as in the present case, such deterioration would endanger his life". It emphasised that:
…particularly in the case of a serious psychiatric illness, it is not sufficient to consider only the consequences of physically transporting the person concerned from a Member State to a third country; rather, it is necessary to consider all the significant and permanent consequences that might arise from the removal … Moreover, given the fundamental importance of the prohibition of torture and inhuman or degrading treatment laid down in Article 4 of the Charter, particular attention must be paid to the specific vulnerabilities of persons whose psychological suffering, which is likely to be exacerbated in the event of their removal, is a consequence of torture or inhuman or degrading treatment in their country of origin.
41.24 The API on Discretionary Leave states that:
• The duration of Discretionary Leave granted will be determined by a consideration of the individual facts of the case but leave should not normally be granted for more than 30 months (2.5 years) at a time.
As indicated above, this does not apply to those who are excluded from refugee status or Humanitarian Protection.
There may be some cases where it is clear from the individual circumstances of the case that the factors leading to DL being granted are going to be short lived. In such cases it may be appropriate to grant shorter periods of leave. Non-standard grants of a shorter than standard leave period should be used only where the information relating to the specific case clearly points to a shorter period being applicable. Reasons for granting a shorter period must be included in the letter to the applicant.
There will also be some cases where the factors meriting a grant of DL are expected to be sufficiently short lived that the question arises whether to grant a short period of leave or to refuse the application outright whilst giving an undertaking not to remove the individual or expect them to return until the circumstances preventing their return have changed. Such cases could arise at the decision-making stage or following an appeal. Where it is considered that return would be possible within 6 months of the date of decision it will normally be appropriate to refuse the claim outright, not to grant a period of DL, and to defer any removal until such time as it is possible.
41.27 In the few cases in which the power to give a direction still applies (see para 41.1 above), if the Home Office has argued or may subsequently argue that the circumstances of the case indicate that a lesser period than the standard period of Discretionary Leave should be granted, you may wish to ask the Tribunal to find that there is no basis for doing so and to direct that the standard period is granted. For the view that the effect of s. 87 of the 2002 Act is to give the Tribunal jurisdiction (in cases to which it still applies – see para 41.1 above) to decide this issue see MS (Ivory Coast) v SSHD  EWCA Civ 133, para 70.
41.28 If the Home Office is likely to claim that the circumstances rendering removal incompatible with the ECHR are likely to change within six months, you may wish to invite the Tribunal to make a finding to the contrary (and additionally, where the power to make a direction under s.87 of the 2002 Act remains - see para 41.1 above - to direct that Discretionary Leave is granted).
41.28A The API on Discretionary Leave also indicates that in some circumstances it may be appropriate to grant Discretionary Leave for longer than the 'standard' period of 30 months:
There may be cases where a longer period of leave is considered appropriate, either because it is clearly in the best interests of a child, (and any countervailing considerations do not outweigh those best interests), or because there are other particularly exceptional or compelling reasons to grant leave for a longer period or (ILR). In cases not involving children (as the direct applicant or as dependants), there must be sufficient evidence to demonstrate the individual circumstances are not just unusual but can be distinguished to a high degree from other cases to the extent that it is necessary to deviate from a standard grant of DL under this policy. In cases involving children, caseworkers must regard the best interests of the child as a primary consideration (although not necessarily the only consideration) and one that can affect the duration of leave granted. This does not alter the expectation that in most cases a standard period of 30 months' (2.5 years') DL will be appropriate, but it does mean that there may be cases where compelling evidence is available that justifies a longer period of leave (or ILR) to reflect the best interests of the individual child.
Factors such as the length of residence, whether the child was born in the UK and strong evidence to suggest that the child's life would be adversely affected by a grant of limited leave rather than ILR need to be weighed against immigration history, including conduct of the parents or guardians, and wider requirements to ensure a fair, consistent and coherent immigration policy. For example, there may be cases where a child has a serious and chronic medical condition which may not be able to be treated in the country of return and it is considered in their best interests to grant ILR to the child to provide a greater degree of certainty for the purposes of their continued treatment or mental wellbeing.
An example of where it would not normally be appropriate to grant a child ILR may be because they would like to qualify for a student loan in order to go to university. This would not normally be a sufficiently exceptional or compelling reason without additional factors. Individuals in this position may be aged 18 or over and are not prevented from going to university by a grant of limited leave – rather they would not be eligible for a student loan. Some universities may have other funding which they could apply for, such as bursaries, scholarships or other types of support or fee waiver; likewise, some commercial companies and charities.
Higher education institutions also have discretion to treat an 'overseas' student as a home student and charge the home student tuition fee, which is usually lower. A grant of limited leave provides permission to work and individuals could choose to seek employment before they attend university, study part time and work part time to fund their course, or wait until they qualify for ILR after completing an appropriate probationary period of limited leave and access a student loan at that point.
Where a decision is taken to grant ILR to a child because it is considered to be in their best interests, this does not necessarily mean the parents should be granted ILR in line. It will normally be appropriate to grant them a standard period of leave and require them to complete the usual probationary period before being eligible to apply for settlement themselves, unless they can demonstrate exceptional compelling or compassionate factors in their own right that warrant departure from the standard grant of DL under this policy.
In all cases the onus is on the applicant to provide evidence as to why it is in the best interests of the child to be granted a period of leave that is different from the standard period of 30 months' DL. Where a decision maker considers that it is in the best interests of the child or there are exceptional compelling or compassionate reasons to depart from the policy of granting 30 months' DL, the case must be referred to a senior caseworker for consideration.
If you have the evidence to support such an application, you may wish to make representations to the Home Office (and/or to the Tribunal in the limited number of cases where the power to make a direction remains – see para 41.1) 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. If the evidence is not available at the appeal hearing, this may not be possible and you should make representations after the hearing in such cases. You can always apply for judicial review in any case where there is compelling evidence to support your representations and the Home Office refuse to consider it, even in the absence of a direction from the Tribunal.
41.29 The API provides for exclusion from the standard grant of Discretionary Leave on criminality grounds for cases which do not fall within the Restricted Leave policy. It states that
In all asylum and non-asylum cases caseworkers must consider the impact of an individual's criminal history before granting any leave.
Where an individual does not fall within the restricted leave policy (for example, where they are not excluded under Article 1F or the criminal sentence was less than 2 years' imprisonment), caseworkers must consider the impact of any criminal history before granting DL, having regard as appropriate to Part 9 (General Grounds for Refusal) and, where an individual is not liable to deportation, paragraph 353B(i) of the Immigration Rules. Criminals or extremists should not normally benefit from leave on a discretionary basis under this policy because it is a Home Office priority to remove them from the UK.
In cases where there are exceptional reasons for granting DL to someone with a criminal history who does not fall within the restricted leave policy, the duration of leave to be granted, up to 30 months, will depend on the individual circumstances of the case. Caseworkers must consider whether removal appears to be reasonably likely and the extent of any risk posed by the individual, which may justify keeping the case under more regular review, eg by granting 6 months' DL. …
41.30 Even if there is no issue that your client is a refugee or qualifies for Humanitarian Protection, ie if the appeal is being pursued only under an article of the ECHR other than article 3, you may therefore wish to ask the Tribunal to find that she would not fall within the criteria for exclusion under para 339D so as to avoid the Home Office alleging later that she does not qualify for the standard grant of Discretionary Leave on this basis.
41.31 The effect of s.87(4) in cases to which the previous appeals provisions apply (see para 41.1 above) is to enable an appeal to be brought to the Upper Tribunal against such a direction. On its face, it might be construed as only enabling an appeal to be brought against the making of a direction and not against a refusal to make a direction. However, there would be no apparent basis to differentiate in this way and it is unlikely that that was the intended effect.
41.32 Prior to the Human Rights Act, judges (then adjudicators) regularly made a recommendation when dismissing an asylum appeal to the effect that the appellant should be permitted to remain on other grounds. The Home Office told Parliament in 1988 that recommendations by adjudicators were 'invariably' accepted by the Home Office unless they were perverse or otherwise unlawful, and representatives consequently put much effort into pursuing such recommendations.
41.33 Despite that indication, the Home Office in practice increasingly rejected such recommendations, and eventually altered its public policy to reflect that. The IDIs subsequently stated (Chapter 12 of the IDIs on Appeals is no longer published on the UKVI website) that:
When dismissing an appeal, or when an appeal is withdrawn, the AIT sometimes make a non-statutory recommendation that the Secretary of State should exercise his discretion in favour of the appellant. They will usually suggest reconsidering the application or granting discretionary leave. Such recommendations should be acted upon only where the determination and/or recommendation discloses clear exceptional compassionate circumstances which have not previously been considered and which would warrant the exercise of the Secretary of State's discretion outside the Immigration Rules. (Ch. 12, s.5)
Our policy is not to accept a recommendation made by the Tribunal when an appeal is dismissed or withdrawn unless the written determination discloses clear exceptional compassionate circumstances which have not previously been considered by the Secretary of State, and which merit the exercise of discretion outside the Immigration Rules. (Ch. 12, s.5, annex C)
41.35 A judge's recommendation will therefore be rejected by the Home Office even where the judge has found that there are exceptional compassionate circumstances unless the Home Office has not already considered these circumstances and it agrees with the judge that they justify permitting the appellant to stay. This policy severely limits the utility of seeking a recommendation, and they are in practice now rarely sought or granted.
41.36 In Berisha v SSHD (01/TH/02623), the Tribunal held that:
[E]xtra-statutory recommendations are no longer an appropriate way of dealing with any serious difficulty in the way of returning someone to his country of origin. If that would result in a breach of human rights, then the appeal should be allowed; otherwise it should be dismissed. If there is still any room at all for extra-statutory recommendations, it can only be in the most exceptional cases, if they can be imagined, where fairness requires them without the appellant's human rights being engaged. They ought not to be seen as a sort of compromise solution, allowing the appeal to be dismissed without actually facing the consequences.
41.37 In Gokteke v SSHD  UKIAT 06608, the Tribunal concluded that the adjudicator's decision to make a recommendation despite dismissing the human rights appeal raised concerns about whether he had properly considered the human rights issues when determining the appeal. It sought to discourage adjudicators from making extra-statutory recommendations.
41.38 In AM (Extra statutory recommendations generally undesirable) Angola  UKIAT 00146, the Tribunal indicated why it had
...sought to discourage Adjudicators from making extra-statutory recommendations. The principal difficulty the Tribunal has identified is that Adjudicators are rarely in a position to know all the facts that would be relevant to an exercise by the Secretary of State of his discretion to allow a person to stay: therefore it is wrong to seek to bind the Secretary of State to act on findings based on incomplete evidence. But another difficulty illustrated here is that such recommendations can be seen as a vehicle for applying their own subjective standards as to what is or is not a compassionate circumstance. There is often no clear set of objective legal principles, such as those which govern assessment under the Refugee Convention and the Human Rights Act, which an Adjudicator can be seen to be drawing upon. (para 11)
41.39 In Shillova, R (on the application of) v SSHD  EWHC 1468 (Admin), however, while Silber J agreed that the Tribunal 'cannot make a recommendation when the reasons for it would at the same time justify allowing a human rights claim', he stated that:
I consider that there remain circumstances after the coming into force of the Human Rights Act in which it is possible and proper for a Special Adjudicator to make a recommendation where he is dismissing Human Rights Act and asylum claims.
41.40 Your primary argument will almost invariably be that the appeal should be allowed on human rights grounds rather than a recommendation made. If you can establish an interference with private or family life then removal is prohibited unless the Home Office can show that it meets a pressing social need (the public interest in expulsion or exclusion as interpreted through the Immigration Rules and Part 5A of the 2002 Act (see chapter 1). A recommendation to the Home Office that it permit your client to stay is arguably inconsistent with the pressing social need to remove her from the jurisdiction which is a prerequisite to dismissing the appeal on article 8 grounds.
41.42 If you do decide to request a recommendation, point out the Home Office's policy on recommendations, and emphasise the factors which have not yet been considered by the Home Office upon which you want the judge to base his recommendation. There is no appeal against a refusal to make a recommendation.
41.43 Far more useful than a recommendation is any relevant finding of fact by the judge concerning the appellant's particular circumstances. Unlike a recommendation, the Home Office is bound to accept any such factual finding (at least where the judge heard oral evidence) unless fresh evidence has come to light that undermines the finding (SSHD v Danaei  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 he 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  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  UKHL 31  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.