Danaei, R (on the application of) v Secretary Of State For Home Department

Although the grant of exceptional leave to enter or remain is entrusted to the Secretary of State, that discretion does not permit him merely to reassert his own view of a primary fact contrary to an independent special adjudicator’s finding following an oral hearing.

The Secretary of State may depart from such a finding where the finding is legally flawed or genuinely material fresh evidence could realistically have affected it. The possible position where the adjudicator had no evidential advantage was left open. A disagreement unsupported by those circumstances is unreasonable on Wednesbury principles.

An Iranian national unsuccessfully appealed against the refusal of asylum. Although the special adjudicator dismissed the appeal, he accepted that the applicant had committed adultery and had fled Iran fearing the woman’s husband. The Secretary of State subsequently refused exceptional leave to enter because he continued to regard the adultery account as fabricated.

Collins J, whose decision was reported at 1997 IAR 366, quashed the refusal and remitted the matter for reconsideration. The Secretary of State appealed. The central issue was whether he could reject the adjudicator’s primary factual finding without identifying a legal flaw or realistically material fresh evidence.

1. Appeal dismissed unanimously. Simon Brown LJ delivered the leading judgment. Ward LJ agreed, and Judge LJ agreed with both the conclusion and reasons. The refusal of exceptional leave had properly been quashed and remitted for reconsideration.

2. The power to grant exceptional leave involved a wide discretion exercisable by the Secretary of State. His decision was separate from the asylum appeal and reviewable only on Wednesbury grounds. The special adjudicator’s findings created neither res judicata nor issue estoppel, but they were a material consideration.

3. Where an independent adjudicator had heard the evidence and made a primary factual finding, it was unreasonable for the Secretary of State merely to maintain his earlier contrary view. He could depart from the finding if it was itself legally flawed, including by irrationality or misuse of relevant considerations, or if fresh material had become available which could realistically have affected it. Simon Brown LJ left open the position where the appeal was decided only on documents or the factual finding owed nothing to an assessment of witnesses.

4. The adjudicator’s acceptance of the adultery account was likely to have been influenced by the applicant’s evidence and demeanour, despite substantial reliance on inherent probabilities. The alleged fresh evidence was insubstantial. It therefore supplied no rational basis for rejecting the adjudicator’s finding.

5. Cases concerning recommendations based on general conditions in another country were distinguishable. On such matters the Secretary of State was likely to possess additional information, while the adjudicator enjoyed no special advantage from oral evidence. Elhasoglu was correctly decided on that basis.

6. Judge LJ emphasised that independent scrutiny would be negated if the Secretary of State could act merely on assertions contrary to express findings made after an oral hearing. If he set such a finding aside, he had to explain why and rely on a legally sustainable ground.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was dismissed unanimously with costs. Leave to appeal was refused.

2. High Court: Collins J, in a decision reported at 1997 IAR 366, quashed the refusal of exceptional leave and remitted the matter to the Secretary of State for reconsideration.

3. Immigration appellate proceedings: The special adjudicator dismissed the asylum appeal but accepted the central account of adultery and flight from an enraged husband. The Immigration Appeal Tribunal refused leave to appeal.