ST & Anor v The Secretary of State for the Home Department

A state receiving a UNHCR resettlement application is entitled to apply its own resettlement policy. Article 35 of the Refugee Convention requires co-operation with UNHCR, but does not require acceptance of a particular refugee.

A policy of this kind is construed objectively, fairly and flexibly, by considering its language and context as a whole. Under the Mandate Refugee Scheme, the listed close-family categories describe the applicant’s relationship to relatives in the United Kingdom. Wider family relationships may qualify only where the Secretary of State considers the circumstances exceptional. The policy does not require a worldwide comparison or an independently structured Article 8 assessment beyond applying the policy where the policy itself adequately addresses family and private life.

Two conjoined judicial review appeals concerned refusals of applications made by UNHCR for the resettlement in the United Kingdom of four recognised refugees: Iraqi sisters ST and ET, and Iranian nationals C1 and C2.

A Deputy High Court judge dismissed ST and ET’s claims. His Honour Judge Thornton QC allowed C1 and C2’s claims, construing the Mandate Refugee Scheme more broadly and holding that the Secretary of State had failed to consider sufficiently the applicants’ wider family and historic ties, the UNHCR referral, and exceptional circumstances. The central issues were the proper construction and application of the scheme, the effect of Article 35 of the Refugee Convention, and whether Article 8 required separate consideration.

1. Disposition. Lord Justice McCombe gave the judgment, with Moore-Bick and Tomlinson LJJ agreeing. ST and ET’s appeal was dismissed. The Secretary of State’s appeal in the C1 and C2 proceedings was allowed, with the result that their judicial review claim was dismissed.
2. Nature of the obligation. Article 35 of the 1951 Convention and Protocol Relating to the Status of Refugees imposes an international obligation to co-operate with UNHCR. It does not require a state to accept any particular refugee for resettlement. A UNHCR referral invites the receiving state to consider the case under its own programme, regulations and procedures.
3. Construction of the policy. The Mandate Refugee Scheme was a broad discretionary policy, not a statute or contract. Its meaning was to be ascertained objectively from the language and context of the Country Chapter and the caseworker instructions, read together and without undue rigidity. The listed close-family categories referred to the applicant’s relationship to the family member in the United Kingdom. The expectation that the UK relative would provide accommodation and integration assistance supported that construction.
4. Exceptional circumstances. The wider listed relationships were left deliberately flexible. Exceptional circumstances meant circumstances which, in the Secretary of State’s assessment, justified making an exception to the primary categories. She was entitled to compare the applicants’ situations with those of other refugees in the relevant country of refuge and to take account of UNHCR’s priority categorisation. The decisions were not unlawful merely because another decision-maker might have assessed the same facts differently.
5. Additional grounds. The Secretary of State was entitled to consider the family unit, including C2’s husband’s presence in Turkey, when assessing exceptionality. Later events could not invalidate the earlier decisions. The assessment of historic ties was a discretionary evaluative judgment and had not been shown to be irrational or contrary to policy.
6. Article 8. The Mandate Refugee Scheme itself addressed family and private life. Even if Article 8 of the European Convention on Human Rights was engaged, refusal outside the policy criteria pursued legitimate immigration-control aims and was proportionate within the state’s wide margin of appreciation. No separate Article 8 analysis was required on these facts.

• Court of Appeal (Civil Division) — [2014] EWCA Civ 188: dismissed ST and ET’s appeal and allowed the Secretary of State’s appeal in the C1 and C2 proceedings.
• High Court, Administrative Court — Mr James Dingemans QC dismissed ST and ET’s judicial review claims on 22 April 2013. His Honour Judge Thornton QC allowed C1 and C2’s claims on 7 August 2013.