TN (Iraq) & Ors v Secretary of State for the Home Department

LORD JUSTICE BURNETT: This is a renewed application for permission to appeal against a decision of the Upper Tribunal Immigration Appeal Chamber. It is thus a second appeal and I should note that it is also out of time.

Mr Schwenk, who has appeared this afternoon on behalf of the Applicant, contends that it is arguable that the Applicant should have benefited from a policy known as the R(S) policy introduced by the Home Office in 2007 in response to a decision of the Court of Appeal in R(S) v the Secretary of State for the Home Department [2007] EWCA Civ 546.

That decided that where an application for asylum was made at a time when the Home Office had in place a policy which granted exceptional leave to remain in the United Kingdom to those whose asylum claims had failed within a given category but determination of whose applications were delayed as a result of a decision to accelerate more recent applications, the refusal to grant exceptional leave to remain was unlawful. As I say, that decision was in 2007 and the policies relating to exceptional leave to remain had been in place earlier.

The R(S) policy remedied that problem and, as Mr Schwenk has pointed out to me this afternoon, the policy went rather further than the parameters of complaint found in the judgments of the Court of Appeal. In particular, it applied not only to those applications were put off in the way described, but, it appears, to anyone whose application was made before the change in the position relating to exceptional leave to remain but determined afterwards.

The Applicants (and I should make clear that the Applicants comprise a family) are Iraqis. The underlying exceptional leave to remain policy was withdrawn on 20 February 2003. I should outline a little the chronology to put the proceedings in context and also explain how it is that the matter is before this court well over a decade after the original refusal of asylum.

The First Applicant arrived in the United Kingdom originally on 29 September 2002. He came from Iraq and applied for political asylum on 8 October 2002. As is well-known, the situation in Iraq then was rather different. Saddam Hussein was still in power and various groups were subjected to difficulty as a result of the policies of his government.

The Applicant's asylum claim was refused on 3 August 2004. By that time he was not eligible for exceptional leave to remain. There is no suggestion that his claim for asylum was in fact delayed for the reasons later found wanting by the Court of Appeal in R(S).

The First Applicant returned to Iraq voluntarily in 2005. There he lived and worked as a policeman. He returned to the United Kingdom five years later on 1 August 2010. He was accompanied by his wife and, as I understand it, two very young children. He applied for asylum. As is plain, the circumstances in Iraq in 2010 were entirely different from those in 2002. The application for asylum was on a different basis from before. That application was refused by the Home Office in November 2010.

The Applicant appealed to the First-tier Tribunal. His appeal was dismissed on 14 April 2011. Before that Tribunal, he had advanced his new asylum claim. He had also run the argument on the R(S) policy point. He was given permission to appeal to the Upper Tribunal, first, on the R(S) policy point and then, subsequently, on the credibility issues as well.

On 18 March 2013 Deputy Upper Tribunal Judge Kelly rejected the R(S) policy point, but he set aside the First-tier Tribunal decision for error of law relating to its determination of the substance of the new claim. He directed a hearing of that issue. The challenge is to the decision of the Deputy Upper Tribunal Judge rejecting the R(S) policy point.

The balance of the appeal came on for hearing on 19 December 2013. The appeal was dismissed on 23 December 2013 essentially on credibility grounds. Permission to appeal to the Court of Appeal was refused by Senior Immigration Judge Allen on 25 April 2014. The material lodged by the Applicant suggests that that decision was served on him on 6 May 2014.

An appellants' notice was received in the Court of Appeal office on 16 June 2014 (already, it should be noted, out of time), but with no fee. There was an application for fee remission, but the relevant material to support it was not initially provided. Fee remission was eventually granted at the very end of July. It was in those circumstances that the papers were re-lodged and the appellants' notice sealed on 7 August. Permission to appeal was refused on paper on 18 December 2014.

At every level, the essential point made against the Applicant in relying upon the policy, whatever may be its reach, is that it could not sensibly apply to somebody who voluntarily left the United Kingdom in 2005, two years before the policy was even introduced, who then lived apparently happily elsewhere before returning to the United Kingdom.

Mr Schwenk has reminded me that the policy has been applied in an Afghan case to someone who was removed from the United Kingdom, but I am not persuaded of the parallels.

There is a further difficulty that has been taken by each of the judges who has considered this over the last four years. That is that, on its face, the policy suggests that it does not benefit somebody who has lost the benefit of the underlying policy as a result of his own actions. Before the Applicant left the United Kingdom voluntarily in 2005 there is nothing to suggest, so far as I am aware, that the Applicant sought to rely upon the revoked ELR policy.

I am far from persuaded that, even applying the ordinary test, this an application that would prosper. However, this is a second appeal.

Mr Schwenk has confronted the test for a second appeal by submitting that the point he wishes to argue on behalf of the Applicant is likely to apply in many other cases. There is nothing before me, as sometimes one sees on applications of this nature, to suggest that there is a large number of outstanding appeals or applications which will turn on the same point. It seems to me to be inherently unlikely that there could be very many, if any at all.

The facts of this case are very unusual. We are concerned with an exceptional leave to remain policy which was revoked 12 years ago. The R(S) policy, introduced as it was in 2007, was itself revoked nearly five years ago. The progress of this Applicant's case through the tribunal system has been exceptionally slow. It is striking that underlying these proceedings is a decision on asylum which was taken approaching five years ago.

In those circumstances, quite apart from the merits of the proposed appeal applying the ordinary test, I am not persuaded that this is other than a one off issue, if I may put it that way, and agreeing with Patten LJ, it does not pass the second appeal threshold.

In those circumstances, it is strictly unnecessary to deal with the question of time. However, I should say that whilst the appellants' notice provides some explanation for the delay in the lodging of the appellants' notice in this case, it falls some way short of providing an explanation that persuades me that the reasons why it was late were good reasons. But as I say, it is unnecessary for me to determine that matter.

This renewed application for permission to appeal is refused.