Thanigaikumaran: Refugees and Leave to Remain

The High Court has ruled that giving a refugee five years’ leave to remain is legal, and that there is no obligation on the Home Secretary to grant Indefinite Leave to Remain (ILR) to refugees. However, medical evidence might show exceptional circumstances where Indefinite Leave to Remain would be granted.

The Facts

Mr Thanigaikumaran is a citizen of Sri Lanka. He claimed asylum on 14th February 2007. His wife applied to remain as his dependent. This application was refused. Mrs Thanigaikumaran then applied for asylum on the basis of her psychiatric condition.

Mr and Mrs Thanigaikumaran had a daughter born in Britain in August 2007.

Mr Thanigaikumaran’s appeal was allowed on asylum and human rights grounds in September 2008. At that hearing medical evidence was given, which showed Mr Thanigaikumaran had moderate depression. This evidence also showed that returning to Sri Lanka would contribute to the deterioration of Mrs Thanigaikumaran’s health: she needed permanence to recover, and would be a suicide risk in transit or under threat of removal.

Having been granted asylum, Mr Thanigaikumaran was given 5 years’ leave to remain, which was renewable. This is the appropriate amount of leave “apart from in the most exceptional circumstances.” Although this case was felt to be one of a “vulnerable person” by the Home Office, it was not one of the “most exceptional.”

The relevant law

The grant of leave to remain has to be valid under European Law: a residence permit must be valid for at least three years, and it must be renewable. Factors that European Law requires to be taken into account include: specific situations of vulnerable people, disabled people, minors, pregnant women; people who have been raped, tortured, or otherwise abused.

The Conclusion

It had to be decided whether the Home Secretary’s policy about granting leave to remain was valid in light of this; and whether the decision to grant five years’ leave to remain, rather than indefinite leave to remain, was a proper decision in this case.

Is the policy valid?

The policy to provide five years’ leave to remain is valid: European Law provides a minimum obligation, and five years is “significantly more than the minimum” requirement. The judge emphasised that on an individual evaluation a longer grant, although exceptional, is allowed for.

And he noted that there is nothing in the European Law that prevents the Home Secretary from taking the approach she has done in the policy.

Was the decision in this case valid?

Mr Thanigaikumaran made three points about the decision to grant him five years’ leave to remain:

1. He didn’t need to show that he was seriously ill (i.e. a “most exceptional” case);
2. There was no case to say his risk of suicide should have receded;
3. The Home Secretary was wrong – medical evidence did show that the treatment Mrs Thanigaikumaran needed required permanence.

The judge did not accept that these formed a sustainable criticism. He said the Home Secretary made a legitimate decision based on the evidence before her. The medical evidence was not focussed on the difference between limited and indefinite leave to remain. Evidence as to those effects has not yet been assessed by the Home Secretary.

The Home Secretary was therefore entitled to make the decision she did: it was within the bounds of European Law, and reached a “rational” and “properly reasoned” conclusion based on the evidence.

The judge mentioned that further evidence of psychiatric injury might result in an Article 8 claim; and there is a suggestion that if there is greater medical evidence in the favour of Mr and Mrs Thanigaikumaran the Home Secretary might reach a different decision. But that cannot be known until the evidence is assessed.