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

A strong general presumption against a judicial-review “rolling review” does not prevent amendment to challenge later decisions where the primary decision-maker has considered the new material and the core issues remain unchanged. Amendment remains a case-management decision based on all relevant circumstances.

When fixing discretionary leave for a recognised victim of trafficking, the decision-maker must consider all material individual circumstances. These may include the causal impact of official mishandling on the victim’s health, the reasons for any earlier interruption in treatment, and unchallenged evidence that stability is required before specialist treatment can begin or recovery occur.

There is no entitlement to indefinite leave to remain. The duration of leave remains discretionary, subject to lawful consideration, adequate reasons and the applicable guidance.

The applicant, a Chinese national and recognised victim of trafficking, challenged three decisions concerning the duration of discretionary leave granted by the Secretary of State. The first granted six months’ leave. Later decisions granted 24 months’ leave but refused indefinite leave to remain.

The applicant had severe post-traumatic stress disorder and depression. Unchallenged expert evidence said that stable immigration status was necessary before specialist trauma-focused treatment could safely and effectively begin. He contended that the Secretary of State had failed to consider the effect of her earlier mishandling of his trafficking claim and the reasons for his earlier disengagement from one course of therapy.

The Secretary of State sought to set aside permission to amend the judicial-review grounds so as to challenge the later decisions, relying on the objection to a “rolling review”. The central issues were whether amendment should stand and whether the leave decisions were lawful under the trafficking and discretionary-leave guidance and the Convention rights grounds.

1. The judicial-review application was granted. The Tribunal refused to set aside permission to amend the grounds. Although rolling review is intrinsically undesirable and generally strongly discouraged, the later decisions had considered the further material, the essential challenge remained the adequacy of leave, and amendment was an evaluative case-management decision. The approach was consistent with R (Caroopen & Myrie) v SSHD [2016] EWCA Civ 1307.

2. There was no entitlement to indefinite leave under the trafficking instruments or the guidance. Sections 3 and 4 of the Immigration Act 1971 gave the Secretary of State a broad discretion as to whether, and for how long, leave should be granted. The guidance allowed flexibility, including leave beyond 30 months where the individual facts justified it, but set a high threshold for indefinite leave.

3. The Secretary of State had unlawfully excluded her own mishandling of the applicant’s case as irrelevant. The unchallenged medical evidence established a causal connection between that mishandling and the aggravation of his mental health. That impact was a material individual circumstance when deciding the duration of leave; it was not an attempt to obtain indefinite leave merely as compensation for a historic wrong.

4. The refusal also failed to consider material evidence explaining the applicant’s earlier discontinuance of treatment at Room to Heal, including lack of financial support following an unlawful conclusive-grounds decision, his traumatic distrust of group treatment, and later consistent engagement with therapy. A history of engagement was rationally relevant, but it had to be assessed on the full evidence.

5. The decisions did not adequately engage with the medical evidence that immigration stability was required both to commence specialist trauma treatment and to support recovery. It was irrationally unexplained to grant leave for treatment while granting a period insufficient to permit it to begin. However, the evidence did not establish that only indefinite leave could lawfully provide the requisite stability. The Secretary of State had to reconsider the duration lawfully, rather than be directed to grant indefinite leave.

6. The article 3 and article 8 claims failed. The applicant’s condition and the effect of the refusal did not meet the high article 3 threshold or establish a sufficiently serious interference with private life; in any event, the decision was proportionate.

The Secretary of State was ordered to reconsider the duration of leave, taking account of the matters identified by the Tribunal.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review of three Secretary of State decisions on discretionary leave. The Tribunal held each decision unlawful and ordered reconsideration of the duration of leave.
• Earlier proceedings: Earlier challenges to negative trafficking and leave decisions had resulted in withdrawals or settlement. The judgment records that a fresh protection claim was refused on 28 February 2017 and was subject to an appeal to the First-tier Tribunal.