Thanigaikumaran & Ors, R (On the Application Of) v Secretary of State for the Home Department

A policy granting recognised refugees five years’ renewable leave, with longer or indefinite leave reserved for the most exceptional cases, is compatible with the Qualification Directive. The Directive requires at least three years’ renewable residence permission and an individual evaluation of vulnerable persons with special needs. It does not prohibit a more generous general policy or a demanding threshold for departure from that policy, provided individual evaluation remains available. A decision applying the policy is lawful where it considers the evidence and gives cogent reasons. A challenge based on later medical evidence cannot succeed unless that evidence was before, or properly considered by, the decision-maker.

The claimants, a Sri Lankan refugee, his wife and their child, challenged the Secretary of State’s decision to grant five years’ renewable leave to remain rather than indefinite leave. Their asylum and human rights appeals had previously been allowed by an Immigration Judge, who accepted evidence of persecution, psychiatric illness and suicide risk. The Secretary of State applied the Asylum Policy Instruction on Refugee Leave and concluded that the circumstances were not among the most exceptional.

The claim alleged that the policy unlawfully departed from Council Directive 2004/83/EC and that the decision breached Article 8 of the Convention. The central issues were whether the policy permitted an exceptionality threshold and whether the decision was rational and properly reasoned on the evidence then available.

1. The claim was dismissed. The Secretary of State was entitled under section 3 of the Immigration Act 1971 and the Immigration Rules to grant either limited or indefinite leave.
2. Articles 20.3 and 20.4 of Council Directive 2004/83/EC require individual evaluation of vulnerable persons with special needs. Article 24 requires a residence permit for a refugee valid for at least three years and renewable. Those provisions impose a minimum obligation and do not prohibit a policy providing five years’ renewable leave as the norm.
3. The Asylum Policy Instruction did not unlawfully fetter the discretion. It preserved individual evaluation and allowed a longer period, including indefinite leave, where the case was significantly outside the norm. The reference to the most exceptional circumstances was a lawful administrative standard designed to promote consistency and efficiency.
4. The decision letter had considered the medical reports, the Bamber Foundation report and the other representations. The Secretary of State was entitled to conclude that the claimants’ circumstances did not require exceptional departure from the policy, and to consider that psychiatric conditions might improve during the five-year period.
5. The Article 8 challenge failed on the material before the decision-maker. Later evidence specifically addressing the difference between limited and indefinite leave had not been available for proper consideration and was excluded from the court’s assessment when the claimants elected to proceed without an adjournment.
6. The court observed that foreseeable psychiatric consequences of the decision could engage Article 8, but there had to be an adequate factual context. The defendant was expected to consider the later evidence and make any further decision required. Costs were awarded to the defendant, subject to the usual restriction on enforcement without permission, with the claimants’ publicly funded costs to be subject to detailed assessment.

The Immigration Judge allowed the first claimant’s asylum and human rights appeals in a determination promulgated on 20 November 2008. The Secretary of State did not appeal that determination. This judicial review challenged the subsequent decision of 5 August 2009 granting five years’ renewable leave.