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

A public authority may devise a policy, but must not apply it rigidly or without considering the individual case. Standard protection-based reasoning in an Article 8 case may support an argument that the policy was applied as a blanket rule and that discretion was fettered. Prolonged uncertainty about whether a person with firmly established roots may remain may itself arguably engage Article 8, including the ability to know where one will live and the circumstances in which that may change. Where such grounds are properly arguable, permission for judicial review should be granted.

The applicant, a Pakistani citizen, entered the United Kingdom in 1993. His asylum appeal was dismissed as abandoned after administrative errors and failures by his solicitors. After nearly ten years’ residence, an adjudicator allowed his human-rights appeal under Article 8, finding established family life and that removal would be unjust. The Secretary of State granted discretionary leave until August 2006 rather than indefinite leave to remain. Mr Justice Sullivan refused permission for judicial review of the refusal to reconsider that decision. The applicant appealed, alleging failure to consider the unusual circumstances and unlawful application of a rigid policy.

Application allowed. Lord Justice Kay granted permission to apply for judicial review pursuant to Civil Procedure Rules 1998, r 52.15.

1. The Secretary of State was entitled to devise a policy governing grants of leave, provided that it was not applied over-rigidly. The decision-maker remained required to consider the particular circumstances of the individual case.
2. The standard letter granting discretionary leave referred to changes in conditions in the applicant’s country of origin and to protection grounds, including Article 3 risks. Those matters appeared inconsistent with a case in which leave was granted because prolonged residence had created firm roots and an Article 8 right to remain. The use of such standard wording, together with the Home Office’s response to the request for reconsideration, made it clearly arguable that the applicant’s circumstances had not been properly considered and that the policy had fettered the Secretary of State’s discretion.
3. It was also arguable that keeping the applicant in prolonged uncertainty, without a sensible explanation of when he might have to return to Pakistan, could itself breach Article 8 of the European Convention on Human Rights. The right to respect for private life could include the right to know where one would live and the circumstances in which that position might be altered.
4. The lower court had not adequately addressed those arguable grounds. Full consideration with the benefit of argument for the respondent was therefore required. Permission to apply for judicial review was granted rather than the matter being remitted.

1. Court of Appeal (Civil Division): Lord Justice Kay allowed the application for permission to appeal and granted permission to apply for judicial review under Civil Procedure Rules 1998, r 52.15.
2. Administrative Court: Mr Justice Sullivan refused permission to apply for judicial review of the refusal to grant indefinite leave to remain.