DS (Afghanistan) v Secretary of State for the Home Department

Permission to appeal may be granted where an administrative error may have deprived an applicant of a generally applicable immigration-policy benefit and there is a real prospect that the error affected the legal assessment. Public-law fairness may require like cases to be treated alike where unequal treatment is conspicuously unfair. The error may also affect the proportionality balance under Article 8, including the usual weight given to immigration control. This decision determined only that the proposed appeal had a real prospect of success; it did not decide the underlying asylum, human-rights or public-law merits.

An Afghan national applied for asylum after arriving in the United Kingdom. The Secretary of State initially doubted his nationality, but later accepted that this was an error and that, had the true position been known, the applicant would have benefited from the policy then granting Afghan nationals four years’ exceptional leave to remain. His asylum and human-rights appeal was rejected on 20 July 2004. On reconsideration under the transitional provisions, the Asylum and Immigration Tribunal found no error of law and upheld the decision.

On a renewed application, the applicant argued that the Tribunal had not adequately addressed the reasoning in Mugisha and Rashid concerning conspicuous unfairness and equal treatment. The central issue was whether the proposed appeal had a real prospect of succeeding.

The Court of Appeal granted permission to appeal and ordered that the application be granted.

1. The applicant’s case had a real prospect of success despite the difficulties ordinarily facing an applicant advancing an Article 8 claim. The Court was persuaded that the proposed appeal should proceed.
2. The proposed error concerned the failure adequately to consider the consequences of the Secretary of State’s mistaken belief about the applicant’s nationality. The applicant argued that the relevant policy was the policy in force at the date of decision, rather than on arrival.
3. The applicant further argued that public-law principles could make it conspicuously unfair to treat applicants in identical circumstances differently. That argument had been advanced and accepted in Mugisha [2005] EWHC 2720 (Admin) and Rashid [2004] EWHC 2465 (Admin).
4. The issue could affect the Article 8 proportionality assessment. In particular, the usual importance of maintaining immigration control might require reconsideration where the applicant had been denied the policy benefit because of the Secretary of State’s error. The Court did not determine those substantive issues; it held only that they gave the proposed appeal a real prospect of success.

1. Court of Appeal (Civil Division): On 22 November 2006, granted permission to appeal on the renewed application.
2. Asylum and Immigration Tribunal: On reconsideration under the transitional provisions, found no error of law and upheld the original decision.
3. Original appeal: The applicant’s appeal was rejected on asylum and human-rights grounds on 20 July 2004.