Navaratnam v Secretary of State for the Home Department

Failure to grant immigration leave after a successful Strasbourg judgment does not, without more, amount to conspicuous unfairness or an abuse of power. The relevant question is whether the public authority’s conduct is plainly and objectively unfair, viewed in the round. Article 46 of the Convention creates an international obligation supervised by the Strasbourg organs, but it does not itself confer an enforceable domestic right to a particular immigration status. A Strasbourg finding that removal would breach article 3 does not determine the legal basis on which the individual must be permitted to remain. A case arising from Strasbourg litigation is not necessarily a legacy case merely because it was handled by the relevant casework directorate. Article 8 damages also require evidence of maladministration and causation.

The claimant, a Sri Lankan national, had succeeded before the Strasbourg Court in NA v United Kingdom, which found that his removal would breach article 3. The United Kingdom subsequently confirmed that he would not be removed and considered granting him refugee status or discretionary leave. A decision to grant six months’ discretionary leave was made, but the claimant absconded before it was served.

After his arrest and later reappearance, his immigration position was reviewed. In December 2012 the Secretary of State refused asylum and humanitarian protection on the basis that conditions in Sri Lanka had changed. The claimant sought judicial review, alleging conspicuous unfairness, abuse of power, unlawful delay under the legacy programme, and breach of article 8. The central issues were whether the Secretary of State had been legally required to grant a particular status or to process the case under the legacy scheme, and whether the overall treatment was conspicuously unfair.

1. The judicial review claim was dismissed. None of the claimant’s grounds was substantiated.
2. The concept of conspicuous unfairness amounting to an abuse of power requires unfairness which is objectively plain and readily apparent. It is a demanding standard. The court assessed the Secretary of State’s conduct in the round, including the communications with the Strasbourg organs, the decision-making delays, the claimant’s absconding, and the later review of his position.
3. Article 46 of the Convention does not form part of Schedule 1 to the Human Rights Act 1998 and is not a Convention right for the purposes of section 1. It therefore does not create a domestic obligation enforceable by the claimant to comply with the Strasbourg judgment by granting refugee status or discretionary leave. The Strasbourg judgment required that the claimant not be removed to Sri Lanka; it did not prescribe the legal basis on which he should remain.
4. The authorities concerning compliance with domestic immigration appellate decisions did not assist. A Strasbourg judgment has a different domestic legal effect. The government’s communications with the Strasbourg organs could nevertheless form part of the factual material relevant to conspicuous unfairness.
5. The initial decision to grant six months’ discretionary leave was not shown to be unlawful. The claimant’s disappearance frustrated its implementation and created the opportunity for a later review of whether he required protection at all. The inappropriate immigration detention in 2010 was a separate matter, already settled, and did not establish abuse of power in determining his immigration status.
6. The legacy programme did not apply. This was not one of the outstanding applications forming the legacy backlog, but a case that had been individually considered in domestic and Strasbourg litigation and by senior officials. The Secretary of State was therefore not unlawful in failing to determine it through that programme.
7. The article 8 claim failed. The evidence was inadequate to support the claimed losses, and the treatment did not disclose maladministration of the kind relevant to a positive obligation under article 8. In any event, the absence of leave after 2009 resulted from the claimant’s absconding.

The proceedings were a first-instance judicial review claim in the Administrative Court. Permission was initially refused on the papers, but was granted on renewal. The claimant’s appeal to the First-tier Tribunal against the December 2012 immigration decision was stayed pending determination of this claim.