Al-Azzawi v Secretary of State for the Home Department

A fundamental error of fact by an administrative decision-maker may potentially make a decision irrational and provide a ground for judicial review. The issue is distinct from a claim of unfairness between cases, and permission should be granted where the error and its legal consequences are properly arguable. At the substantive hearing, the court must also consider whether the claimant or advisers contributed to the error and whether subsequent circumstances make the requested relief appropriate.

The appellant renewed an application for permission to apply for judicial review after permission had been refused by Saunders J and on renewal by Sir Robin Auld. The challenge concerned a refusal by the Secretary of State to apply a special policy relating to Iraq, allegedly because the Secretary of State had previously disputed the appellant’s Iraqi origin. The Court of Appeal considered whether the claim was arguable on the basis of conspicuous unfairness or irrationality arising from a fundamental error of fact, and whether the matter should proceed substantively in the Court of Appeal or the Administrative Court.

1. Permission and forum. The renewed application for permission was granted. The substantive application was directed to proceed in the Administrative Court, since the matter was not appropriate for substantive determination in the Court of Appeal.
2. Potential error of fact. The challenge was properly characterised not primarily as unfairness between cases, but as possible irrationality arising from a fundamental error of fact: whether the appellant was from Iraq. Such an error was recognised as potentially capable of founding judicial review, with guidance in E v Secretary of State for the Home Department [2004] QB 1044, particularly Carnwath LJ’s discussion at paragraphs 62–63.
3. Issues for the substantive hearing. The claim faced significant difficulties, including whether the appellant and, in that context, his advisers could fairly be held responsible for the error. It was also arguable that, even if the original decision was irrational, prevailing conditions in Iraq might affect whether the relief sought remained appropriate. These matters required inter partes argument and were not finally decided.
4. The Court of Appeal’s observations were intended to guide the Administrative Court and did not bind the judge hearing the substantive application.

• Court of Appeal (Civil Division): Permission granted on renewed application; substantive judicial review directed to proceed in the Administrative Court.
• High Court, Administrative Court: Saunders J refused permission. The judgment gives no citation for that decision.
• Renewal: Sir Robin Auld also refused permission before the application was renewed in the Court of Appeal.