Court of Appeal quashes exclusionary leave policy for foreign national offenders

11.04.13 | |

In R (Mayaya) v SSHD, C4/2011/3273, on appeal from [2011] EWHC 3088 (Admin), [2012] 1 All ER 1491, in which Laura Dubinsky was instructed by Lawrence Lupin solicitors, the appellant has obtained an order quashing the Secretary of State for the Home Department's policy of granting shorter periods of Discretionary Leave to foreign national former offenders sentenced to periods of imprisonment of 12 months or more.

The Court of Appeal by consent, granted a declaration on 19 March 2013 to the effect that the SSHD's Asylum Policy Instructions (API) on Discretionary Leave in force before 9 July 2012 were unlawful in so far as these restricted grants of Discretionary Leave for persons sentenced to 12 months or more for a criminal offence, and quashed that part of the API. (The API stipulated that those who had been sentenced to 12 months' imprisonment or more had committed a 'serious crime' and were 'excluded' from Discretionary Leave though they in fact got Discretionary Leave nonetheless. 'Excluded' people 'normally' received only Discretionary Leave for six months rather than the standard three years; 'exclusion' also affected the time that had to lapse on Discretionary Leave before the SSHD would consider Indefinite Leave to Remain).

A week before the full hearing in the Court of Appeal , and after two years of litigation, the SSHD conceded that the rigid 'exclusionary' policy contained in the API amounted to a rule and should have been contained in the Immigration Rules and also that the Home Office had, for over two years, unlawfully failed to publish an internal instruction on leave to remain for foreign national offenders. .

Mr. Mayaya's own case fell solely within the Discretionary Leave API, since he had established his entitlement to remain in the UK purely on Article 8 ECHR grounds. But, the Mayaya settlement probably has the consequence that the exclusionary part of the API on Humanitarian Protection is also unlawful. This is because (a) the 'exclusionary' part of the API on Discretionary Leave was simply imported from the API on Humanitarian Protection and (b) the reason for the SSHD's concession applies equally to the API on Humanitarian Protection.

Follow this link for a Note providing more details of the case and suggesting the likely consequences for who were 'excluded' and for a copy of the Consent Order and statement of reasons.

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