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

A refusal to grant indefinite leave to remain may engage articles 3 and 8 where, in the exceptional circumstances of the case, it directly causes or perpetuates severe mental suffering and seriously impairs private life. The assessment must be holistic. It must address the applicant’s immigration history, mental condition, social functioning, treatment needs and the causal connection between insecure status and the inability to obtain treatment. A rigid application of discretionary immigration policy is unlawful where it fails to confront those matters and the countervailing public interest is marginal.

The claimant, an Afghan national, sought judicial review of the Secretary of State’s refusal to grant indefinite leave to remain. He had previously been granted time-limited discretionary leave following an appeal based on article 8, but his mental health had subsequently worsened and specialist evidence indicated that insecurity about his immigration status prevented trauma-focused treatment.

The issues were whether refusal of indefinite leave engaged articles 3 and 8, whether the Secretary of State had lawfully applied her discretionary policy, and what relief should follow.

1. Article 3. The protection in article 3 extends to state action which causes or gives rise to mental suffering, or consequences of sufficient gravity to cause very significant impairment of health, human dignity or social functioning. The distinction between positive action and inaction is not decisive; the court must examine the substance and context of the state’s conduct. The minimum-severity principle in R (Limbuela) v Home Secretary [2006] 1 AC 396, drawing on the Strasbourg authorities, was applied.
2. The refusal had to be assessed against the claimant’s repeated experience of insecure immigration status, the worsening of his mental condition, the established link between that insecurity and his inability to begin essential trauma-focused treatment, and the limited additional burden on immigration policy involved in advancing settlement. In that holistic context, the refusal directly contributed to the breakdown and likely further deterioration of his mental health and social well-being. It therefore infringed article 3.
3. Article 8. The same matters constituted a serious interference with private life. The Secretary of State had failed properly to analyse the medical and social evidence, the link between insecure status and treatment, and the continuing effect on the claimant’s social integrity. The interference could not, on these facts, be outweighed by the maintenance of immigration control. Sisojeva v Latvia Application 60654/00 was distinguished because the applicant there remained able to enjoy private life, whereas the refusal here caused and perpetuated serious mental disability and deprived the claimant of meaningful treatment.
4. The court did not need to decide the alternative Wednesbury grounds, but indicated that the decision was irrational because it failed to take proper account of the principal medical evidence and relevant circumstances.
5. The refusal dated 17 February 2012 was quashed. A declaration was made that it was unlawful under articles 3 and 8.