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

A reconsideration application based on alleged fraud or forgery requires material capable of rationally suggesting that the original decision may have been induced by it. Mere assertion, speculation, or similarities with unrelated cases are insufficient, even at the permission stage.

Where an immigration decision is quashed and the original determination is not reconsidered, the Secretary of State may nevertheless require a reasonable opportunity to consider fresh evidence of deception. The court may impose a time limit for that decision rather than order the immediate grant of refugee status.

The claimant, a psychiatrist, had succeeded before an Immigration Judge on asylum and human rights grounds. The Secretary of State later sought reconsideration, alleging that the claimant’s account and supporting documents formed part of a fraudulent package based on similarities with other Russian asylum claims.

A Senior Immigration Judge ordered reconsideration and treated the grounds and supporting material as cogent, despite the application being out of time. The claimant sought judicial review of that order and of the continuing failure to regularise his immigration status. The central issues were whether the material rationally supported a possible fraud-induced error of law and what remedy should follow.

1. The reconsideration order was quashed. A Senior Immigration Judge could order reconsideration only if the Immigration Judge may have made an error of law under section 103A of the Nationality and Immigration Act 2002. An innocent fundamental mistake of fact capable of causing unfairness may constitute such an error. A fortiori, a fundamental mistake induced by fraud or forgery may do so.
2. Because fraud and forgery involve a serious allegation and require a high standard of proof, an applicant cannot rely on mere assertion. Even at the reconsideration stage, there must be material which logically suggests that fraud or forgery may have induced a material mistake of fact. Mere speculation based on nationality, the production of documents, or superficial similarities with unrelated cases is inadequate.
3. The four decisions supplied to the Senior Immigration Judge did not rationally support the alleged package case. They concerned different accounts, different appellants and, on their face, different documents. The conclusion that the grounds were cogent and that evidence of possible fraud had been compiled was therefore not rationally open to him.
4. The court declined to order the immediate grant of refugee status. Under the principle recognised in R v Secretary of State for the Home Department, ex parte Boafo [2002] 3 EWCA (Civil Division) 44, the Secretary of State may in appropriate circumstances reopen a decision where there is fresh evidence of deception concerning facts on which it was based.
5. The renewed application for permission and the substantive judicial review were allowed. The defendant was ordered to decide within four weeks whether the claimant and his wife should be granted refugee status. The defendants were ordered to pay the claimant’s costs, subject to detailed assessment for community legal services purposes.

• Immigration Judge: allowed the claimant’s asylum and human rights appeals in a determination promulgated in September 2005.
• Senior Immigration Judge: ordered reconsideration after accepting the Secretary of State’s out-of-time fraud-related grounds as cogent.
• High Court (Administrative Court): quashed the reconsideration order, allowed the judicial review claims, and required a decision on refugee status within four weeks.