KP, R (on the application of) v Secretary of State for Foreign, Commonwealth and Development Affairs & Anor

A decision affecting a person’s health or life is subject to heightened rationality review, even where that person has no prior legal right to the benefit sought. The court must examine the decision-making process rigorously and require proper consideration of factors favouring the individual. The breadth of rational outcomes nevertheless depends on the public interests engaged and the court’s institutional competence.

Diplomatic predictions and high-level assessments of public safety and public confidence ordinarily attract substantial respect. A serious risk to life does not require a public authority to eliminate that risk at all costs. It may rationally balance that risk against the risks posed to others by a person’s criminality and against broader public interests.

The claimant, a Sri Lankan Tamil national, was detained in Diego Garcia in the British Indian Ocean Territory. The BIOT authorities accepted that he could not lawfully be returned to Sri Lanka. He had serious mental health difficulties, a history of self-harm and suicide attempts, and convictions including sexual assaults and assault occasioning actual bodily harm.

The Home Secretary granted leave outside the Immigration Rules to other migrants on Diego Garcia but excluded the claimant because of his offending. The defendants sought a safe third country for him and declined to transfer him to the United Kingdom to serve the remainder of his sentence. He sought judicial review, alleging that those decisions were irrational because continued residence on Diego Garcia endangered his health and life and no realistic third-country solution existed.

1. Permission was granted, but the claim was dismissed. The claimant had no legal right to enter the United Kingdom. Nevertheless, the defendants accepted that, because he could not be returned to Sri Lanka and could not remain in BIOT permanently, they had to secure either his admission to the United Kingdom or a third-country solution. That acceptance framed the rationality review.

2. The potential consequences for the claimant’s health and life required heightened rationality review. Applying Bugdaycay v Secretary of State for the Home Department [1987] AC 514, the court had to examine the decision-making process rigorously and ensure that factors favourable to him had been properly considered. The absence of a legal right to enter the United Kingdom did not preclude that heightened scrutiny.

3. Heightened scrutiny did not authorise the court to substitute its own assessment for diplomatic or ministerial judgments. Considerable respect was due to the Foreign Office’s assessment of whether negotiations with third countries had a realistic prospect of success, and to ministers’ assessment of public-safety and public-confidence considerations.

4. The decisions were properly informed. Ministers had received a candid account of the claimant’s prior self-harm, continuing need for monitoring, the limitations of facilities on Diego Garcia, and the difficulty of arranging medical evacuation. The evidence reasonably showed that his condition had improved after his move to the short-term holding facility, although risks remained and required continuing support.

5. It was rational to conclude that a third country might accept the claimant. Four of the five countries approached were still considering the request. The failure to relocate a larger cohort did not establish that efforts to relocate one person would fail, particularly where diplomatic considerations could affect a receiving state’s response.

6. There is no rule, even where European Convention on Human Rights article 2 applies, requiring a public authority to remove or minimise every risk to life. Ministers could rationally give substantial weight to the risks to the public, public confidence in immigration control, and the policy against violence against women and girls. Their decisions remained within the wide range of reasonable responses.

not stated in the judgment.