ZS (Afghanistan), R (On the Application Of) v The Secretary of State for the Home Department

This is the renewed application by Mr Zargul SAfi, now aged 33, who will not be anonymised as he has been hitherto, for permission to appeal the order of Sir Stephen Silber dated 27 January 2015 dismissing his applications for judicial review of the Secretary of State’s decisions on 22 May 2012 and 6 February 2014 refusing him leave to remain.

At the core of the submissions made on behalf of Mr Safi by Ms Sonali Naik is that the Secretary of State acted unlawfully or unreasonably when considering his case because she did not consider whether he should have been given, at the date of the original decision refusing him asylum on 10 April 2002 or thereafter during the consideration of his case, exceptional leave to remain under a policy relating to Afghan citizens which was promulgated in September 2008 as a result of the decision in RS v SSHD [2007] EWCA Civ 546 and withdrawn in December 2010, because she had concluded in 2002 that he was not an Afghan national. She so concluded because, at his screening interview, he was unable to provide accurate information in respect of the majority of questions he was asked about his knowledge of Afghanistan or to explain why, if he was an Afghan national, he was not able to do so.

The policy to which I have referred was to give four years ELR to Afghan nationals on the basis that they could not safely be returned to Afghanistan. The policy was at first amended to restrict it to one year’s ELR and the original policy was withdrawn on 11 July 2002. The RS policy to which I have referred, which was introduced in 2008, dealt with failed asylum claims, which may have lost the benefit of the earlier policy, which was in force at the date of the refusal of asylum as a result of delay in dealing with their cases.

It is not necessary to set out the complicated history save to say that, although the First-tier Tribunal dismissed the applicant’s appeal and found his account incredible, it concluded that he was an Afghan national born in Peshawar, Pakistan in a refugee camp, where many thousands of Afghans were living at the time.

The immigration judge stated that he found this “as his family are Afghan and he is not recognised as a Pakistani national, notwithstanding that he was born there”. The judge stated that the applicant has never lived in Afghanistan and came to this country from Peshawar with the assistance of an agent. There was no appeal against that decision but there were a number of representations which were submitted as constituting a fresh asylum claim. These were refused in a series of letters on 11 November 2008, 1 October 2010 and, after a letter dated 1 February 2011 stating that the applicant had no basis to stay in the United Kingdom and should leave without delay, in the first of the decisions challenged on 22 May 2012.

In a letter dated 20 September 2011 from the applicant’s solicitors, it was stated inter alia on behalf of the applicant that the solicitors were very concerned that he was not granted ELR in 2002, and they urged the Secretary of State to reconsider the matter and grant indefinite leave in accordance with the Home Office policy to which I have referred.

There was, Ms Naik informs me, no response to that letter, and indeed there was no response to it until after these proceedings were instituted and after Singh J had, on 5 June 2013, granted permission to challenge a decision of the Secretary of State’s in 2012 refusing to regard representations as a fresh claim.

On 6 February 2014 the Secretary of State stated that, although the applicant was refused asylum within the four-year policy timeframe, according to the “reasons for refusal” letter his nationality was disputed. The letter then refers to the immigration judge’s decision and quotes paragraph 39, which I have summarised with the finding that the applicant is an Afghan national and the reason for it.

Ms Naik criticises the final paragraph of the letter as mistaken because it states that the immigration judge concluded that the applicant was a national of Afghanistan as he provided evidence in the form of country knowledge at appeal, but the appeal was dismissed and, as at that time, the Afghan country policies were discontinued and he was not entitled to the grant of leave.

The Secretary of State’s February letter was sent after the applicant had failed to respond to offers by the Secretary of State to withdraw the 2010 and 2012 decisions and to consider the further representations and put the applicant in the position in which he would have been had he been successful in his applications by treating the submissions as a fresh claim.

The hearing before Sir Stephen Silber was the substantive hearing of the challenge to the 2012 decision and, as a result of an amendment, a rolled up hearing of a challenge to the 6 February 2014 decision. Ms Naik acknowledges that the judgment is a full one. Indeed it is careful, well structured and reviews the authorities as they stood at the time, including a number of the cases which ended up in the Supreme Court in its recent decision in TN (Afghanistan) & Ors [2015] UKSC 40. She, however, criticises him for not, save in paragraph 9 of the judgment and possibly paragraph 96, grappling with the core of her case, which is not that this applicant is entitled to receive status but that the Secretary of State has failed to exercise her discretion to consider whether the former policy should be taken into account, in the way that the Supreme Court did not totally preclude in the TN (Afghanistan) cases.

Ms Naik submits that effectively the Secretary of State should have considered the policy then in force for Afghan nationals at the time of the asylum decision in 2002. The Secretary of State did not respond to the submissions raising the RS point in 2011 and the letter dated 2 February 2014 gets the position wrong in its assessment of the reason that the immigration judge concluded that the applicant is an Afghan national. Nowhere has the Secretary of State considered whether she should regard the applicant as one entitled to the benefit of the RS policy for failed asylum claims, which have lost the benefit of the ELR policy as a result of delay.

The judge’s reasons are set out in paragraphs 94 to 97 of his judgment. They are essentially that departures from the basic rule that decisions on asylum had to be considered on the basis of the facts and circumstances prevailing at the time of the hearing before the specialist tribunal were very rare indeed. It has to involve exceptional facts, and delay in advancing a case would be fatal.

The judge concluded that the facts in this case were not exceptional because the reason the applicant was not regarded as an Afghan citizen in 2002 was because he was unable to provide accurate information, as I have described, and the caseworker was entitled, on the evidence before him, to conclude that he was not an Afghan national. That decision has not been challenged and was not unlawful. Ms Naik submits that the focus on the need for underlying illegality is wrong in the light of the judgment of Laws LJ in AA (Afghanistan).

The judge secondly, in paragraph 96, concluded that it could not be said that the only way the Secretary of State could have exercised her discretion would have been by granting indefinite leave to remain to the applicant if she considered the circumstances and consequences of her decision in April 2002. Thirdly, he considered this was a case in which there was a delay of some 18 months after the letter dated 1 February 2011 stating that the applicant had no basis to stay in the United Kingdom and should leave without delay.

The focus of Ms Naik’s written submissions was the impact of the decision of the Supreme Court in the case of TN (Afghanistan) & Ors and what it said about the Ravichandran principle [1996] Imm App Reports 97 and the case of Rashid [2005] EWCA Civ 744. She accepted that the general rule is that decision-making should be made by reference to the position at the time of the decision rather than by reference to the factual situation in the past. She, however, submitted that while that was true in relation to asylum appeals, where the issue is not whether a person is entitled to asylum but whether the Secretary of State had exercised the discretion lawfully or had omitted a mandatory relevant consideration, whether (as in this case) by mistake or for some other reason, the position is different: the issue is the exercise of discretion.

She relied on the statement by Lord Toulson, at paragraph 72, that it is not proper for the court to require the Secretary of State to exercise a discretion by granting unconditional leave to a person who would not be entitled to such relief under current policy, but that the Secretary of State should take into account the past error when making the decision, and this had not been done in the case of Mr Safi.

In oral submissions Ms Naik focused on the other grounds and drew the court’s attention to the decision in Moussaoui [2016] EWCA Civ 50, in which (at paragraphs 13 and 14) the Master of the Rolls dealt with the error of fact ground, and also referred (at paragraphs 24 and 25) to the judgment in RS and Carnwath LJ’s emphasis on the fact that the proper sphere in a consideration of administrative mistakes is not that they are mistakes, even serious mistakes, but whether they are illegal.

At bottom, Ms Naik’s case is that the Secretary of State has not considered the extent to which the historic circumstances – the fact that the applicability of the policy to Mr Safi was not considered in 2002 – is a consideration in the present exercise of her discretion. She does not suggest that it is a “knockout blow”, but submits that the judge erred in not finding that the failure to consider this question was an error of law or other public law flaw.

Notwithstanding the attractive way Mr Naik has presented her submissions, I have concluded that this is not a case in which permission should be granted. In her oral submissions she departed from the core of the written submissions, that this case is based on an allegation of an historically illegal decision: see the reference to past errors and unlawful decisions in paragraph 17 of her advocate’s statement, the similar words in paragraph 11 of her supplementary skeleton argument and the submissions that the cases of SHQ and AA are distinct because in the latter there was no historically illegal decision). She focuses now on an illegality resulting from a failure to consider the exercise of discretion, at any rate until the decision in 2014, and then the flaw which I have described.

I have carefully considered the judgment below, which I have said was a full one. The judge was entitled to conclude that the decision made in April 2002 was not unlawful in light of the material and the information provided by the applicant. As to the question of an historical error and whether the failure to exercise the discretion gives rise to an arguable public law illegality, the judge accepted that it was arguable: he gave permission. The judge, however, rejected the argument that it was illegal.

Guidance as to the approach can be obtained from the decision of the Court of Appeal in E v SSHD [2004] EWCA Civ 49. In that case it was recognised that the misunderstanding or ignorance of an established or relevant fact or acting on an incorrect basis of fact was a ground for judicial review. It was stated that the ordinary requirements are (see paragraph 66 per Carnwath LJ) that the mistake of fact must give rise to unfairness and that there are four ordinary requirements for a finding of unfairness. First, a mistake as to existing fact. Secondly, the fact must have been established in the sense that it was uncontentious and objectively verifiable. Thirdly, the applicant or his advisers must not have been responsible for the mistake. Fourthly, the mistake must have played a material part in the reasoning of the decision-maker.

In this case, although the fact or evidence is now seen to be uncontentious and objectively verifiable, it is important to note that what arguably puts it into this category was the decision of the tribunal believing this applicant rather than any objective reality. Moreover, it was the fact that the applicant’s case to the Secretary of State and to the tribunal that he was born in Pakistan but went with his family to Afghanistan in 1997, when he was 14 years old, and that he feared he would be killed on return to Afghanistan because of his ethnicity, while unable to provide accurate answers in respect of the majority of the questions he was asked about Afghanistan, that led to the error (see paragraphs 5, 8, 12-21 and 34 of the tribunal decision). His account was found not to be credible, with the finding expressed in very strong terms: “utterly implausible”, “incredible”, and then the finding, which I have set out earlier in this decision, was given.

In these circumstances, I put it to Ms Naik that the “no fault” requirement in E is simply not met. She pointed me to Singh’s J observation when giving permission to challenge the 2012 decision that it may be that the application ultimately transpires to be unmeritorious, not least because the Secretary of State submits the mistake was one solely attributable to the conduct of the applicant himself. At that stage the benefit of the doubt was given to this applicant, but on analysis, although Ms Naik submits that the fault was not solely attributable to the applicant because the Secretary of State should have known when he claimed to be born in Pakistan in an area where thousands of Afghan refugees were located, that he was likely to be an Afghan national. That, in my judgment, is to put far too high a standard on the caseworker dealing with his case. The reason for the mistake was that the applicant chose not to tell the truth and thus to explain why it was he could not give answers about the position in Afghanistan.

I have concluded that it is utterly unarguable that, given the circumstances in which the error in 2002 was made, this is a case in which the only way the Secretary of State could have reasonably exercised her discretion was by granting ELR and then ILR to this applicant.

Finally, although Ms Naik submits that there is no case for defeating this claim on the grounds of delay, after the tribunal made its decision in 2002 accepting his claim to be an Afghan national there was a substantial delay in raising the submission based on the former policy. It was only raised in September 2011, nine months after the RS policy was withdrawn and a long time after the former policy was withdrawn. Even discounting the period between 2002 and February 2011, there was an 18-month delay between February 2011 and the filing of these proceedings.

For all these reasons, I refuse permission for this case to proceed to a full hearing.