Utshudiema, R (on the application of) v Secretary of State for the Home Department

An adjudicator’s recommendation made after dismissing an asylum appeal is not binding on the Secretary of State. The Secretary of State may apply a rational policy under which such recommendations are acted upon only where clear exceptional compassionate circumstances, not previously considered, justify exercising discretion outside the Immigration Rules. A relative’s grant of exceptional leave to remain does not, without dependency or other relevant circumstances, establish such grounds. Judicial review is also inappropriate where the claimant has an available route to make human-rights submissions and obtain a further appealable decision.

The claimant, a national of the Democratic Republic of Congo, appealed against refusal of asylum. The adjudicator dismissed the appeal but recommended that the claimant receive exceptional leave to remain on terms similar to those granted to his brother. The Secretary of State declined to follow the recommendation, applying a policy concerning recommendations made after dismissed appeals.

The claimant sought judicial review of that decision. The issues were whether the recommendation was binding, whether the Secretary of State had applied his policy unlawfully or irrationally, and whether the claimant had an alternative route for advancing possible human-rights claims.

1. Application dismissed. The adjudicator’s recommendation was precisely that: a recommendation. It did not bind the Secretary of State.
2. The Secretary of State had a clear and rational policy for dealing with recommendations made after dismissed or withdrawn appeals. The policy required clear exceptional compassionate circumstances, not previously considered, warranting the exercise of discretion outside the Immigration Rules.
3. The decision-maker was entitled to conclude that the mere grant of exceptional leave to remain to the claimant’s brother did not, without evidence of dependency or other extraneous circumstances, amount to exceptional compassionate circumstances. The decision was therefore not unlawful or irrational.
4. The Secretary of State had also offered to entertain further submissions concerning possible breaches of the claimant’s human rights. An unsatisfactory decision would generate a right of appeal to an adjudicator. That alternative route provided a further reason why judicial review should fail.
5. In discussing any later human-rights appeal, the court clarified that an adjudicator would not be technically bound by the earlier adjudicator’s factual findings, although those findings could carry weight, particularly on matters such as credibility and cross-examination.
6. The claimant was ordered to pay the Secretary of State’s costs, to be assessed in due course.

The judgment records that an adjudicator dismissed the claimant’s statutory asylum appeal on 30 March 2001 but made a recommendation concerning exceptional leave to remain. The Secretary of State subsequently declined to act on that recommendation. The Administrative Court dismissed the judicial review claim.