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

In an Article 8 removal case, proportionality is assessed on the facts and evidence as they stand when the claim is decided. An earlier administrative mistake does not automatically require the decision-maker to recreate the position that would have existed had the mistake not occurred. A rational decision, promptly corrected when reliable evidence emerges, does not ordinarily amount to abuse of power or conspicuous unfairness merely because an immigration policy was not applied. Conspicuous unfairness may, in principle, make removal unlawful for Article 8(2), but no such unfairness arose on these facts. The appeal was dismissed.

The appellant, an Afghan Hindu, claimed asylum on arrival in December 2001. The Home Office rejected the claim after wrongly deciding that he was not an Afghan national. It was accepted that, had his nationality been recognised, he would have received four years’ exceptional leave to remain under the policy then in force.

After the appellant produced an Afghan passport, the Home Office accepted his nationality. His asylum and human-rights claims nevertheless failed on the facts. The adjudicator found removal proportionate under Article 8, and the AIT on reconsideration found no material error of law. The appeal concerned whether the original refusal was irrational or conspicuously unfair, and whether the appellant had to be placed in the position he would have occupied had the policy been applied.

Lord Justice Sedley gave the leading judgment. Lord Justice Wilson and the President agreed. The appeal was dismissed.

1. Issue. The appeal did not turn on the AIT’s alternative reasoning that the result would have been the same even if a material factor had been overlooked. Such reasoning requires explicit and careful justification. The central issue was whether the original Home Office decision was irrational and unlawful.
2. Abuse of power. The nationality decision was wrong and some reasoning was heavy-handed, but it was rational and legally permissible on the material then available. It was corrected as soon as the appellant produced an authentic passport. This was not comparable with the persistent policy mismanagement in Bakhtear Rashid ([2004] EWCA Civ 744), the arbitrary postponement in R (S) v Home Secretary ([2007] EWCA Civ 546), or the prolonged unfairness considered in R (Mugisha) v Home Secretary ([2005] EWHC 7270 (Admin)).
3. Article 8. The court was prepared, for present purposes, to accept that conspicuous unfairness amounting to abuse of power could render a refusal unlawful, preventing reliance on Article 8(2) on the basis that removal was not in accordance with the law. The case did not display such unfairness. The adjudicator’s task was to assess risk and proportionality as matters stood at the hearing, balancing the evidence of private life, the appellant’s circumstances, the immigration-control aim and the other relevant findings.
4. Remedy and legitimate expectation. There was no legal obligation, based on abuse of power or legitimate expectation, to recreate the historical position. By reconsideration, the four-year exceptional leave period had expired. The court made no order requiring retrospective leave, although the Home Office remained able, as a matter of good governance, to make amends by recognising how the appellant would probably have been treated at the end of that period.

1. Court of Appeal (Civil Division) ([2007] EWCA Civ 774): permission was granted on renewal and the appeal against the AIT’s reconsideration decision was dismissed.
2. Asylum and Immigration Tribunal: on reconsideration following statutory review, the AIT found no error of law in the adjudicator’s determination, including the Article 8 proportionality assessment.
3. Adjudicator: the appellant’s asylum and human-rights claims failed on the facts, and removal was found proportionate under Article 8.