Gunduz v Secretary of State for the Home Department

LORD JUSTICE ELIAS: This is a renewed application for permission to appeal. It is brought by Mr Gunduz, who is a failed asylum seeker and a national of Turkey. He first came to the United Kingdom in March 2015 and claimed asylum two days later. His asylum claim was refused by the defendant on 13th May 2005. His appeal was dismissed.

There was then an indication from the government that they were introducing the legacy programme in 2006 to deal with the large backlog of cases in asylum and human rights matters. On 17th February his solicitors wrote to the Secretary of State saying that they believed their client came within the heads of category considered under the legacy case load. That led to his claim being considered by the Secretary of State. That consideration led to two decisions on 16th March 2011: first, he was told that he had no basis to stay in the UK and that he would be removed and, second, he had made further representations subsequent to his initial application and those were specifically rejected. He claimed judicial review against both decisions. Before permission had been granted, and I think before an acknowledgement of service had been entered, there was a consent order agreed between the Secretary of State and the claimant as follows:

The parties agreed that the judicial review claim should be withdrawn with no order as to costs.

Subsequently further fresh representations were made and the two decisions were made on 11th June 2012: in the first the claimant was granted ILR for three years, and in the second, the claimant's representations were rejected as a fresh application under paragraph 353 of the Immigration Rules.

The claimant submitted that he ought to be entitled to indefinite leave to remain and that the period should not have been limited to three years. He submitted, in particular, that he was covered by a particular policy which the government had introduced when applying paragraphs 395C and 353B, as the case may be, to consider whether leave should be given outside the rules. He stated in particular that he fell into a category of case which is as follows:

In substance he says he should have been granted indefinite leave to remain. He says the relevant conditions were met: there was an erroneous adverse decision and essentially the case was determined on the same evidence.

Ms Gill, sitting as a Deputy High Court judge, concluded that neither of these conditions was satisfied. She said that it could not be inferred from the terms of the consent order that there had been any acceptance that the original decision was erroneous and that cases of this kind are often settled for pragmatic reasons. She identified in particular four grounds leading to that conclusion: first, there was no mention of any agreement to reconsider the original claim; second, there was no express statement in the consent order that the first decision was erroneous or should be set aside, and indeed the focus was on the second decision, that is the consideration of representations, rather than the first decision; thirdly, there was no order as to costs; and, fourthly, the terms of the consent order envisaged fresh representations being made, and where up-to-date evidence is given then the general rule is that the policies are applied when the decision is made and not at some earlier stage. She went on to say that in any event this was not a case where the decision was being taken on the same evidence, the applicant's circumstances had changed in certain respects.

Mr Ali has put forward some attractive submissions. Essentially, he says that the only reasonable inference was that the original decision was erroneous; the Secretary of State would not have settled the case at the time it did on advice from leading counsel, and a very experienced counsel, but for that fact.

I do not think, with respect, that one can infer that that was the only proper construction of this agreement. The judge has given cogent reasons why he considered that there was no such acceptance in this case and there is no independent evidence to show that it was erroneous. In my judgment, that was a perfectly proper conclusion by the judge. In any event it seems to me that the second reason he gives is critical, as indeed did Underhill LJ when refusing permission on the paper, namely that the evidence put forward by the applicant was different and his circumstances had changed in a number of respects. Mr Ali asserts, and he may be correct, that the fresh evidence was not materially different so as to lead to any different result than would have been made had his case been considered in March 2011. That may be so on the facts, but we are testing what the effect of the order was, and the order was allowing the fresh evidence to be decided in the light of current policy, not pre-determining the outcome. It would be very odd to allow that fresh evidence and yet apply that evidence to a set of policies which were in existence prior to the evidence being advanced. Some of the matters relied upon in that evidence occurred after the original decision had been taken. That deals with what seems to be the primary point.

The other case advanced is, as I understand it, that the Secretary of State said that the case had been determined under the old policy, but the judge found that that was not in fact so when analysing the relevant documentation. Mr Ali says that under the old policy, if that is what the Secretary of State was applying, he would have been entitled to indefinite leave to remain.

The difficulty with that argument is that even applying the old policy, the Secretary of State did not grant indefinite leave to remain and gave some reasons why he was not doing so. In any event, I think the judge was entitled to say that the Secretary of State was making the decision essentially under 353B and, perhaps more to the point, that is what the consent order required him to do, as the judge found.

Also reliance was placed on the case of KA, where this court held that there will be circumstances where it is unfair for an applicant who has been subjected to an unlawful decision to be subject to a stricter set of rules on reconsideration because the policy or rules have changed in the meantime. That plainly may be so in certain circumstances, but it does not get round the problem that this consent order envisaged that new facts would be taken into consideration. It was not a case like KA, where in substance the same argument was being advanced in exactly the same way as would have been advanced had the matter been considered at the appropriate time when the more lenient policy was in play.

For these reasons, which broadly follow the analysis of Underhill LJ, I would refuse permission to appeal.