Thanigaikumaran & Ors, R (On the Application Of) v Secretary of State for the Home Department

MR JUSTICE DAVIS: The question arising in this case is whether the Secretary of State for the Home Department properly decided to grant leave to remain for five years, as opposed to indefinite leave to remain, to these claimants consequent upon their status as refugees being recognised; or whether such decision is flawed.

At the heart of the claimants' submissions is the proposition (not so far as the authorities cited to me would indicate previously raised in any previous such case) is whether the Secretary of State's Asylum Policy Instruction on refugee leave, introduced consequent to the Council Directive 2004/83/EC ("the Qualification Directive") is valid.

The point arises in this way. The first claimant is a citizen of Sri Lanka. The second claimant is his wife. The third claimant is their three year-old daughter. The first and second claimants were admitted to the United Kingdom as visitors on 10 December 2006. The first claimant claimed asylum on 14 February 2007, with his wife applying to remain as his dependant. The asylum claim was initially refused and there was an appeal. Subsequently, the second claimant made a separate claim to be allowed to remain in the United Kingdom on human rights grounds in the light of her psychiatric condition. Their daughter was born in the United Kingdom on 31 August 2007.

In the event, reconsideration was ordered in respect of the first claimant's appeal, an error of law being identified, and the matter was adjourned for a second-stage hearing, which took place before Immigration Judge Morris on 30 September 2008. In a determination promulgated on 20 November 2008, the first claimant's asylum and human rights appeals were allowed.

Part of the evidence adduced before the Immigration Judge at that second-stage hearing included evidence of a psychiatric nature from Professor Katona and Dr King. That was part of an amount of evidence, both medical and otherwise, lodged in support of the claimants.

So far as the medical evidence of Professor Katona at that stage was concerned, he indicated that the first claimant was, in his opinion, suffering from "moderate" depression. There was also a diagnosis of post-traumatic stress disorder, and there was expressed the view that there was a "substantial risk" of suicide if the first claimant were to be returned to Sri Lanka.

The report of Professor Katona, amongst other things, says this under the heading of "Possible effects of return to Sri Lanka":

At 11.3 in the same report this is recorded:

A report was submitted by, amongst others, Dr King, in particular in respect of the second claimant. Amongst other things, Dr King's report included the following comment:

There had also been reference to a report from the Bamber Foundation dated 6 December 2006. This is a detailed document offering an opinion on the impact of the five-year leave to remain policy on vulnerable refugees. It was prepared by Dr Michael Kotzinski and Helen Bamber OBE. It is not necessary for present purposes to set out great parts of this detailed and thorough report. But, amongst other things, this is said:

It will be recalled that previously grants of indefinite leave to remain were the standard, and the policy whereby grants of five-year leave to remain initially became the standard was introduced only relatively recently, and it was that to which the Bamber Foundation report was referring. Overall, the tenor of the report was to express disagreement with the desirability of granting five-year initial leave to remain, as opposed to the desirability of granting indefinite leave to remain, to those whose refugee status had been recognised.

The decision of the Immigration Judge itself was very thorough and was highly sensitive to the situation of the first claimant and his wife. The Immigration Judge reviewed very carefully all the evidence, including the medical evidence and the evidence given on behalf of the claimant and his wife about the persecution and mistreatment which they said they had experienced in Sri Lanka. The Immigration Judge, in effect, accepted as credible and plausible what the first claimant and his wife were saying in their evidence.

So far as the medical reports were concerned, the Immigration Judge considered them to be "very strongly worded", and as supporting the claimants' claims both in terms of the mental difficulties which the first claimant then suffered, and by reason of his extensive scarring. So far as the second claimant was concerned, she herself gave evidence before the Immigration Judge. She gave graphic evidence of what had happened to her whilst in Sri Lanka. It is not necessary for me to outline it in this judgment, and which again the Immigration Judge accepted.

So far as the first claimant was concerned, the overall conclusion was that if the first claimant were returned to Sri Lanka, he would be detained on his arrival at the airport, and it was highly likely, as the Immigration Judge found, that this would lead to detention and further torture or serious ill-treatment. In consequence, the first claimant was found to be a refugee and his asylum appeal was allowed.

In addition, however, the Immigration Judge went on to assess that by reason of his mental health and by reason of the evidence as to the risk of suicide, his Convention rights would also be infringed if he was removed to Sri Lanka. In addition, the Immigration Judge found, by reference to Article 8 of the Convention, that on the basis of the evidence before her, the risk of damage to the first claimant's health from returning him to Sri Lanka would substantially affect his moral and physical integrity to a degree falling within the scope of Article 8, and that any such interference would not be proportionate. The overall result thus was that the first claimant's appeal, so far as it related to asylum, was allowed and, in addition, his human rights appeal was allowed.

The Secretary of State did not seek to challenge that particular decision by way of appeal. Instead, consideration was given as to what leave should be granted to the first claimant and his family. In this regard, detailed representations were put in on behalf of the claimants, seeking indefinite leave to remain rather than leave to remain for an initial term of five years, albeit renewable. It is not necessary to go through the procedural history with regard to all that, but ultimately, by a decision letter dated 5 August 2009, the Secretary of State decided that a grant of five years' leave to remain in favour of the claimant, together with his wife and daughter, was appropriate, of course renewable subject to any intervening change in circumstances. It is that decision which is challenged by these particular proceedings.

The claim form itself was issued on 2 November 2009. The single judge refused leave on the papers on 5 March 2010, but on renewed application, leave was granted by Miss Geraldine Andrews QC, sitting as a judge of the High Court, that being so granted on 28 January 2011. It is regrettable that a claim in the form of this particular claim form should have taken some 18 months to come on for substantive hearing.

The relief sought by the claim form is an order quashing the decision of 5 August 2009.

To give a little more context to what this claim is all about, it is necessary to refer to Council Directive 2004/83/EC, the Qualification Directive. That, as is commonplace for Directives of this kind, has very detailed recitals. Its title indicates that it is to set minimum standards to qualification status of third country nationals, or stateless persons as refugees, or of persons who otherwise need international protection and the content of the protection granted (see also Article 1).

The relevant Articles for present purposes are Article 20 and Article 24. They are contained within Chapter VII of the Qualification Directive. Article 20 provides as follows in the relevant respects:

Then Article 24 provides as follows under the heading "Residence permits":

It may be noted that Article 20 itself is the starting Article of Chapter VII, and applies across the Board to Chapter VII: which of course includes matters such as access to employment, access to education, access to social welfare and health care and so on.

In consequence of the Qualification Directive, the Asylum Policy Instruction on Refugee Leave was introduced. By section 1 of that Instruction, this is said:

The crucial section for present purposes in the Asylum Policy Instruction is contained in section 2.2. That sets out in verbatim the terms of Article 20.3 and Article 20.4 of the Qualification Directive. The Asylum Policy Instruction then says this:

To this it may be added that the statutory authority to grant either indefinite leave to remain or some shorter period is contained within section 3 of the Immigration Act 1971 and is also reflected in the Immigration Rules.

There is no dispute that the decision letter in question here was made in the light of and applying the Asylum Policy Instruction.

The decision letter itself is a lengthy and careful document. It is not necessary for me to read out all of it at this stage, although I have had careful regard to the entire contents of the letter. The letter indicates that it has taken into account the materials provided, including, amongst other things, the reports of Dr King and Professor Katona, and the report from the Bamber Foundation, as well as other materials. The letter then goes on to say this:

A little further on, the decision letter goes on to again deal with the question of the contents of the Asylum Policy Instruction. Amongst other things, this is said:

There is then in the letter a reference to Professor Katona's report and a reference to Professor Katona noting that the depression rating of the first claimant was that of moderate. Further detailed discussion of Professor Katona's report is then given, and indeed there is also a detailed discussion of Dr King's report with regard to the claimants. In that regard, it is noted that, in her report, Dr King had said there was a real risk of the second claimant successfully executing a suicidal act from the time she is under specific threat of removal, as to which the letter said:

On behalf of the claimants, Mr Mackenzie submits that the decision letter was flawed essentially for two reasons. First, and primarily, he says that its reasoning is flawed because the decision letter applies the Asylum Policy Instruction; and the Asylum Policy Instruction is itself flawed, so it is submitted, as departing from and being contrary to the Qualification Directive. Second, Mr Mackenzie submits that the decision letter is flawed in that it breaches the claimants' rights under Article 8 of the convention in that the Secretary of State was not, so it is said, justified in reaching views departing from the claimants' own psychiatric evidence.

At the heart of Mr Mackenzie's first submission is the proposition that the Secretary of State had no entitlement to impose a requirement of exceptionality in assessing whether or not a person should be granted more than five years' leave to remain. He submits that such a requirement as to exceptionality nowhere appears in the Qualification Directive. In effect, he says, that is contrary to the requirement within the Qualification Directive of individual evaluation of the situation of a vulnerable person as mandated by Articles 20.3 and Article 20.4 of the Directive. He submits accordingly for there to be a general policy of five years' leave to remain, with indefinite leave to remain only being granted "in the most exceptional circumstances", is outwith the Qualification Directive.

That there is a requirement of individual evaluation of the situation of a vulnerable person is clear: the Qualification Directive so requires, and indeed that is echoed in the Asylum Policy Instruction itself. It is further wholly clear from the decision letter itself that such individual evaluation was accorded to these claimants.

As to the complaint on the part of Mr Mackenzie that to impose a requirement of exceptionality, as the Asylum Policy Instruction does if more than five years' leave to remain is to be granted, is objectionable, I can for myself see nothing in that which is indeed in any way contrary to the Qualification Directive.

The first point to be noted is that the Qualification Directive imposes a minimum obligation; that is to say, of three years' leave to remain, renewable. In the present case, the Secretary of State has a discretion under section 3 of the 1971 Act and the rules to grant leave to enter for a limited period or for an indefinite period. In situations of this kind, the Secretary of State has decided to set a policy, albeit admitting of exceptions, of a leave to remain term of a minimum of five years renewable; that is to say, significantly more than the minimum three years renewable mandated by the Qualification Directive. The Secretary of State was entitled to set such a policy, as being sufficient save in the most exceptional of cases, and entitled to do so within the framework of the Qualification Directive: and that includes amongst it vulnerable persons.

The point to be emphasised is that, on an individual evaluation, a yet longer grant is (exceptionally) allowed for. There is no unlawful fetter on any discretion in that. The particularly important point to note is that there is nothing in the Qualification Directive which prohibits such an approach as adopted by the Secretary of State. Indeed, as I see it, that approach is designed to indicate a norm which enables caseworkers to approach cases in an administratively efficient way, and in a way designed to achieve consistency.

What can further be stressed is that there is nothing in the Asylum Policy Instruction which precludes the required appropriate individual evaluation of the situation of a vulnerable person. On the contrary, the instruction endorses that. The instruction has, as it were, built in a two-year allowance, whereas a minimum three-year period was the one mandated by the Qualification Directive. That this may on one view of the matter actually favour those who are not vulnerable as defined in Article 20.3 is nothing to the point, as Mr Barnes submitted on behalf of the Secretary of State and as I agree. What is in point is that such margin makes allowance, in general policy terms, for those who are vulnerable and who are assessed to have special needs. The Bamber Foundation has taken the view that such an outcome is not a good thing. The Secretary of State has taken a different view, and that is a matter for the Secretary of State.

What, I repeat, is important is that this Asylum Policy Instruction does not anywhere displace the requirement for individual evaluation in the specific case of a vulnerable person. Furthermore it permits for the possibility of a grant of a term either longer than five years, or indeed an indefinite term in an appropriate case, and that is to be a case which the Secretary of State has decided is to be regarded as a case significantly outside the norm. There is nothing wrong with that.

In the case of Rechachi and others [2006] EWHC 3513, (Admin), I had to consider certain matters by no means on all fours with the matters now raised before me; but I did have occasion to comment on the prospective differences between the grant of five years' leave to remain and the grant of indefinite leave to remain. I said this in the course of my judgment:

Turning then to Mr Mackenzie's second submission and turning to the decision letter itself, Mr Mackenzie conceded that a decision in principle in this case to grant five years' leave to remain renewable (as opposed to indefinite leave to remain) could not be styled irrational; but he submits that the reasoning set out in the decision letter in this case is flawed. He raises a number of points in this regard. First, he submits that it was not necessary for the first claimant to show that he was one of the most seriously ill kind of refugees, and he suggests that the test is not a comparative one. Second, it is said that there was no proper basis for the Secretary of State's claim that the risk of self-harm or suicide should logically have receded in the first claimant's case. Third, the suggestion of the Secretary of State - that Dr King's evidence of the need for a sense of permanence if treatment was to be effective was inadmissible because Dr King provided no evidence in support of that - was in itself an unsustainable suggestion on the part of the Secretary of State. Then it is pointed out that Dr King's opinion was in line with the relevant parts of the Bamber report. Then it is said that the fact that what the grant of five years' leave to remain requires is merely a review of the claimants' circumstances at the end of the initial period of leave did not alter matters; it simply, says Mr Mackenzie, restates the problem. It is said that the evidence suggests that the claimants needed a greater sense of security than would be provided by a grant of limited leave, which carries with it the possibility of removal at the end of that time. Finally, it is submitted that the suggestion that the claimants may have been making matters worse by insisting on their claimants' rights to consideration and status did not merit serious scrutiny.

I have considered all the points raised by Mr Mackenzie in this regard. In my view they do give rise to any sustainable criticisms of the decision letter. The reality is that the decision letter dealt fully and properly with all the representations made, themselves very fully, on the part of the claimants in support of their application for indefinite leave to remain. Quite simply, as I read the decision letter, the Secretary of State reached a decision she was entitled to reach on amply cogent grounds on, I stress, the evidence then before the Secretary of State.

The case was properly assessed as not being one which required, exceptionally, a grant of more than five years' leave to remain. It was further open to the Secretary of State to offer the view that the psychiatric condition of the claimants might well improve within that five-year period of time. That, as it seems to me, is a valid observation. Perhaps it is not so much an observation of logic, but it is an observation which can be borne out by sense and experience. There could indeed be a favourable prognosis, given some lapse of time.

Further, it is very important to note that the original medical evidence, which indeed had been evidence before the Immigration Judge, had primarily been directed at establishing the importance of asylum status being established in favour of the claimants, and thereby giving rise to a degree of protection for them. What the medical evidence at that stage was not focusing on was the potential difference in psychological outcome between the grant of limited leave to remain and the grant of indefinite leave to remain. That simply had not been the focus of the then medical evidence at all. Whilst one can extract one or two observations which may bear on that issue, one can as easily find observations which go the other way.

That that is so is borne out by what has happened in the course of these proceedings. As I have said, there has been considerable delay in this claim coming on for final hearing. When Miss Andrews QC granted leave on 28 January 2011, she specifically, gave other directions, including lodging of an agreed trial bundle and the filing of skeleton arguments, as to the final hearing in that regard. But, no amended grounds have since been lodged at all.

No further written evidence was lodged by the claimants at the time. In the event, partly in May and partly about a week before this hearing, there has been very detailed further evidence from a number of doctors, including Professor Katona and Dr King, and also including Dr Ballance, which was designed to focus on the potential impact on these claimants of a grant of five-year leave to remain as opposed to indefinite leave to remain, and the consequence on the mental health of the first claimant and his wife in consequence. That does indeed address an issue which needs to be addressed. It had not, however, been addressed at the time of the decision letter, and was subsequently raised at a time when the Secretary of State has had no proper chance to consider that latest evidence, has had no proper chance to respond to that evidence, has had no proper chance to make a fresh decision in the light of that evidence. In truth, as it seems to me, the lodging of this evidence is, in effect, a tacit admission on the part of the claimants' advisers (correct in my view) that further such evidence was indeed needed to address this very point.

I can well see that the foreseeable consequences of psychiatric injury as a result of the decision made may well operate to bring Article 8 of the Convention into play. One can consider cases such as Bensaid and Anufrijeva in this context. But, for that to be so, there cannot be a factual vacuum; there has to be a factual context. This factual context has now been sought to be addressed by the claimants, but that had not been addressed, or at least sufficiently addressed, at the time of the decision letter now sought to be attacked.

At the outset of this hearing, in the light of this unsatisfactory lodging of this further evidence, I raised with counsel what was to be done. Mr Barnes, on behalf of the Secretary of State, very fairly indicated that he would not necessarily object to this lodging out of time of this evidence, and no doubt too the lodging, when prepared, of amended grounds of claim. But he made clear that that would have to be at the price of an adjournment so that the Secretary of State could properly consider matters and, moreover, such adjournment had to be at the cost of the claimants. Alternatively, he said he was perfectly willing to contest the case as matters then stood, provided that the further recent evidence formed no part of the court's evaluation.

Mr Mackenzie was minded to acknowledge that that was the reality. In the event he elected to proceed with his case without having regard to this latest evidence for the purposes of the hearing before me. That being so, I must assess the decision letter, of course, in the light of the material which was then before the Secretary of State. Having done that, as I have indicated, the Secretary of State in my view reached a conclusion which was not only rational, but was one which was properly open to her for the properly reasoned arguments put forward in that letter. It was also a decision which was in no way unlawful as being outwith the requirements of the Qualification Directive.

In all those circumstances, this claim is dismissed.

MR BARNES: My Lord, just in respect of my Lord's judgment, can I respectfully suggest that there may be one error, which is not, I think, going to make a material difference, but is nevertheless of some significance. My Lord, if you turn to page A64 of the bundle, you will see, my Lord, the order that first appears to have been made at paragraph 2: "The claimant shall file and serve further detailed grounds and any further written evidence..." My Lord, if you then turn back two pages to A62, you will see at the top: "This order supersedes the order sealed on the 28th January 2011". There is no repetition of paragraph 2.

MR JUSTICE DAVIS: A62?

MR BARNES: Yes, my Lord.

MR JUSTICE DAVIS: There is.

MR BARNES: Yes, my Lord, A64, paragraph 2, "The claimant shall file and serve further detailed grounds and any further written evidence within 35 days". That paragraph is changed to "the defendant", the point being that the claimants never had permission. As I say, it is not going to change --

MR JUSTICE DAVIS: It makes no difference, but it is an unfair criticism on my part if I had said you had not complied with an order, but still the point remains that you should have put this in earlier.

MR MACKENZIE: I do appreciate that.

MR JUSTICE DAVIS: But I made an unfair criticism that you failed to comply with a court order. I am sorry about that, Mr Mackenzie, but it does not affect the substance of my reasoning, I am afraid.

MR MACKENZIE: Indeed.

MR JUSTICE DAVIS: I do apologise for that. I am afraid I had not -- I have certainly seen your supplemental written grounds, but they seem to me to track very much your original ones.

MR BARNES: My Lord, there was not much more to say.

MR JUSTICE DAVIS: All right.

MR BARNES: My Lord, that just leaves the question of costs and we ask for our costs.

MR JUSTICE DAVIS: Is there any money?

MR BARNES: My Lord, this is a question that is of course often raised in these circumstances. We are entitled --

MR JUSTICE DAVIS: Whether you enforce them is another matter.

MR BARNES: Exactly, my Lord.

MR JUSTICE DAVIS: Of course, it may also have a bearing on what may hereafter happen, I suppose.

MR BARNES: Yes, my Lord.

MR MACKENZIE: Indeed, my Lord, subject to the usual order about not enforcing it without the permission of the court, I cannot resist that.

MR JUSTICE DAVIS: I do not think you can. Yes, it may be relevant for future purposes. Just be pragmatic about what you do with it, will you?

MR BARNES: My Lord, I am sure those instructing me will be pragmatic.

MR MACKENZIE: My Lord, may I seek a detailed assessment of our publicly funded costs?

MR JUSTICE DAVIS: That is the right form of order, is it?

MR MACKENZIE: Yes, my Lord.

MR JUSTICE DAVIS: You have certainly earned your money, Mr Mackenzie. Now, what I have done here is I have dismissed this claim, but we have now got the situation where the further round of evidence needs to be assessed, and without saying -- I think I can fairly say this at least has the potential to raise an Article 8 point.

MR BARNES: My Lord, I am sure.

MR JUSTICE DAVIS: I will say no more than that, but it will need consideration. I am just trying to be practical here. My present feeling is there is likely to be a further decision needed, is there not? You may want to first of all get your own medical evidence, I do not know.

MR BARNES: My Lord, the Secretary of State is considering the position in respect of the further evidence. I cannot say anything other than it is very likely that there will be a further decision in due course in respect of it. One imagines that if no further decision was forthcoming, there would be complaint from the claimants' solicitors which may well have merit.

MR JUSTICE DAVIS: Well, let us not beat around the bush here, is there going to be a further decision or not? We now have raised the point of now focusing specifically on what is said to be the effect of a limited leave to remain as opposed to indefinite leave to remain. I can well see you may want to put in your own medical evidence. You may want to see these people yourself. These things are easily said. You may want to check whether they are quite as accurate as they are said to be.

MR BARNES: The adjournment that was sought on Thursday from the claimants' solicitors was on the basis that the Secretary of State needed time to consider the further evidence, with a view to providing a further decision letter. My Lord, aside from saying -- I do not have any direct instructions, but I can tell the court that. My Lord, the reality is that it is inescapable that further evidence has been provided which is detailed and at least updates the story. That is going to have to be considered by the Secretary of State.

MR JUSTICE DAVIS: Yes. The point is -- the five years -- is it 2013 it expires, Mr Mackenzie?

MR MACKENZIE: I believe so, my Lord, yes.

MR JUSTICE DAVIS: So this kind of point would have to be considered in 2013 at the latest, and it has now been put in now.

MR BARNES: Yes, my Lord.

MR JUSTICE DAVIS: Right, what I am trying to do is to avoid further unnecessary litigation, especially on the grounds of nothing having been done, and you may or may not reach a decision which the claimants do not like; you may reach a decision they do like, I do not know.

MR BARNES: My Lord, the point has been noted by those who instruct me. The point will be taken back to their client and we will see what happens in respect of that.

MR JUSTICE DAVIS: Yes, well, not too much mañana mañana about it please, Mr Barnes.

MR BARNES: No, my Lord. The emphasis will be passed on.

MR JUSTICE DAVIS: Thank you very much. As I have said, there can be no criticism whatsoever of the previous decision letter not having got to grips with what was in issue, and if that can be maintained ...

Mr Mackenzie, I was right in taking it that this point has not previously been raised before for decision by the courts?

MR MACKENZIE: I was not aware of it myself, my Lord.

MR JUSTICE DAVIS: It has been decided now, anyway.

Mr MacKenzie, I am sorry to have been a little sharp with you this morning. It was not with you personally, but I am afraid counsel have to vicariously take it. But it is causing trouble with some Administrative Court Judges that significant evidence at the last minute is just being put in in circumstances where it puts everybody in great difficulty. I am afraid the message does need to be got out that simply bunging in further evidence, moreover usually when the claim form is not amended to add a new ground, it is causing trouble. It was not directed at you personally, but I am sure you know you have to wear armour when you are in court anyway. Thank you both very much indeed.