Yusuf, R (on the application of) v Secretary of State for the Home Department

Recognition as a refugee does not create an automatic entitlement to indefinite leave to remain. The Secretary of State may change the policy governing the form of leave, including by applying a new policy to grants made after its commencement, provided the policy remains consistent with the protection required by the Refugee Convention.

After refugee status has been recognised, the resulting leave must be granted within a reasonable time and without undue delay. Reasonableness depends on the whole circumstances, including the length and consequences of the delay, administrative requirements, exceptional circumstances and any prejudice. A status document must be construed according to its terms. Where it expressly records settlement and indefinite leave, those words cannot be displaced by an inconsistent expiry date or standard accompanying letter.

Four judicial review claims challenged the Secretary of State’s decision to grant recognised refugees five years’ limited leave rather than indefinite leave. The claimants argued that delays in determining or implementing their successful asylum appeals meant that the former policy should apply, or that applying the new policy was conspicuously unfair, contrary to legitimate expectation or an unlawful fetter of discretion.

The Secretary of State maintained that the policy change took effect for grants made on or after 30 August 2005 and that any delay did not justify relief. A separate issue arose because Mr Kalobo’s residence permit stated both that it was valid until December 2010 and that it conferred settlement and indefinite leave to enter. The central issues were whether the policy could lawfully be applied, whether implementation had been unreasonably delayed, and what leave the document granted.

1. Policy change. The Secretary of State was entitled to replace the previous policy of indefinite leave for recognised refugees with a policy of five years’ initial leave, subject to further review. Refugee status carries protection from persecution but no automatic entitlement to indefinite leave. The claimants had no legitimate expectation that the grant would take a particular form. The new policy was not retrospective because it did not remove indefinite leave already granted.
2. Implementation delay. Recognition of refugee status and the formal grant of leave are distinct. Recognition declares an existing status; the formal grant is an administrative act which confers the entitlement to remain. Although no express statutory time limit applied, the grant had to be made within a reasonable time and without undue delay. In an ordinary case involving applicant co-operation, 28 days was an achievable benchmark, but delay alone did not determine unlawfulness or relief. The court had to assess the entire circumstances, including administrative steps, security checks, exceptional circumstances and resulting prejudice.
3. Individual claims. The claims of Rechachi, Fodil and Yusuf were dismissed. Their delays did not produce conspicuous unfairness, and each received five years’ leave protecting refugee status. The Secretary of State was generally entitled to await the outcome of an appeal or reconsideration ordered by the appellate tribunal. There was no general freestanding duty constantly to reassess the prospects of an appeal before its hearing.
4. Kalobo’s document. The residence permit itself was the operative document. Its express references to settlement and indefinite leave to enter were inconsistent with limited leave and could not be displaced by an accompanying standard letter. Construed as a whole, and if necessary contra proferentem, it granted indefinite leave to remain. The claimant had not contributed to the error, and the Secretary of State could not rely on his own mistake to deprive the document of effect.
5. Kalobo therefore succeeded on the document-construction ground. He was awarded 90 per cent of his costs. No costs order was made against the unsuccessful claimants. Permission to appeal was refused to them but granted to the Secretary of State on the interpretation issue, with an extension of time.

First-instance judicial review decision. The court dismissed the claims of Rechachi, Fodil and Yusuf, allowed Kalobo’s separate document-construction ground, awarded him 90 per cent of his costs, and granted the Secretary of State permission to appeal on the interpretation issue.