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

Rationality review varies with the importance of the interests affected and the gravity of the potential consequences. Serious risks to health and life can require heightened scrutiny even where the individual has no prior right to the benefit sought. The decision-maker must demonstrate proper consideration of every favourable factor. Greater justification may also be required for the outcome.

Heightened scrutiny remains sensitive to competing public interests and the court’s institutional and constitutional position. Courts accord substantial respect to diplomatic assessments and ministerial judgments about public safety and confidence in immigration control. A risk to an individual’s life does not require exclusive attention to that risk. Where the Government accepts responsibility for securing a durable solution, its decisions must be assessed within that framework, while allowing the appropriate margin for competing interests.

The claimant was a Sri Lankan national of Tamil ethnicity serving a prison sentence in Diego Garcia, part of the British Indian Ocean Territory. He had convictions for arson, sexual assault and assault occasioning actual bodily harm. He also had complex mental health difficulties and a history of self-harm and suicide attempts. The BIOT Commissioner, who exercised the territory’s legislative and executive functions, had accepted his international protection claim, preventing his return to Sri Lanka.

The Home Secretary granted exceptional leave to enter the UK to 61 other migrants but excluded the claimant because of his criminality. The Foreign Secretary, responsible for the territory’s external relations, pursued third-country resettlement while measures were taken to improve the claimant’s detention conditions. The defendants accepted that permanent residence in Diego Garcia was impracticable and that a long-term solution was required.

The claimant sought judicial review of the refusal of leave and the continuing decisions against transfer to the UK. His sole ground was irrationality, relying on the risks to his health and life and the asserted absence of realistic third-country prospects. The court heard permission and the substantive claim together.

1. Permission to apply for judicial review was granted, but the claim was dismissed. The claimant had no independent right to enter the UK and no Convention rights enforceable against the UK Government. Acceptance of his protection claim did not create an entitlement to admission. The territorial character of refugee obligations stated in R (Bashir) v Secretary of State for the Home Department applied (paras 48–49, 71).

2. The Government nevertheless accepted responsibility for finding a long-term solution. The unusual combination of a territory without a permanent population, the impracticability of continued residence and the prohibition on return to Sri Lanka left third-country resettlement or UK admission as the available alternatives. That accepted responsibility supplied the framework for rationality review, without itself requiring admission (paras 73–74).

3. Rationality concerned both the reasoning process and the outcome. Its intensity depended on the importance of the interests affected and the gravity of the consequences, rather than the existence of a prior legal right. The risks to health and life therefore required heightened scrutiny. Applying the principles in Bugdaycay, YH (Iraq) and Pham, the court required rigorous examination of the reasoning and proper consideration of every favourable factor. Greater justification could be required for the outcome, but competing public interests and institutional or constitutional considerations could preserve a wide decision-making margin (paras 75–83).

4. The decisions rested on a properly informed assessment. What mattered was the information supplied to Ministers, read fairly and as a whole against the evidence available at the time. Advice concerning the decision against a prisoner transfer under the Colonial Prisoners Removal Act 1884 candidly acknowledged continuing risks, monitoring needs and difficulties with emergency evacuation. Improvements and continuous observation mitigated risks, although ligature points remained. Emergency admission to the UK had not been ruled out. The information did not materially misrepresent the claimant’s condition or safety (paras 85–89).

5. The assessment of third-country prospects attracted substantial respect because it concerned diplomatic predictions within the FCDO’s expertise. Failure to place a larger cohort did not establish that placing one individual would fail. Recipient states might have diplomatic incentives to assist, and four approached states were still considering the request. At that stage, a realistic prospect of acceptance was a rational assessment (paras 90–93).

6. The claimant’s risks had to be balanced against public safety, public confidence in immigration control and the UK’s commitment to tackling violence against women and girls. Even where article 2 of the European Convention on Human Rights applied, there was no requirement to take every possible measure to eliminate or minimise a risk to life. Ministers were entitled to a wide margin in evaluating these competing risks. The challenged decisions fell within the range of reasonable decisions open to them (paras 94–96).

• High Court (Administrative Court): Before determination of the claim, the court upheld a public interest immunity application in part and ordered disclosure of some material into a confidentiality ring comprising the claimant’s lawyers but excluding the claimant. Permission and the substantive claim were heard together on 12 February 2025. Permission was granted and the claim dismissed.