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

A decision to refuse indefinite leave to remain is not irrational merely because the applicant would probably have qualified for earlier leave under a policy that was wrongly applied. Where the applicant later obtained leave by deception and completed a questionnaire untruthfully, the Secretary of State may consistently apply a policy excluding such applicants from indefinite leave to remain. The court may recognise substantial mitigation and an earlier administrative error without treating those matters as requiring a different outcome.

The claimant, an Iraqi national, sought judicial review of the Secretary of State’s refusal to grant indefinite leave to remain. He had originally applied for asylum in 2000 and, following an acknowledged failure to apply the relevant policy, had not received four years’ exceptional leave to remain to which he would have been entitled.

He later made a further asylum application under a false name, was convicted of seeking leave to enter or remain by deception, and received a twelve-month prison sentence. In a subsequent questionnaire he answered falsely that he had never been convicted of an offence. The central issue was whether refusal of indefinite leave to remain, notwithstanding the earlier administrative error and the surrounding mitigation, was irrational.

1. Application refused. The Secretary of State had not acted irrationally in refusing indefinite leave to remain.
2. The claimant’s answer to the questionnaire was plainly untruthful. The question whether he had ever been convicted of an offence was simple and required a negative answer only if he had no such conviction.
3. The claimant had substantial mitigation. He had fled Iraq, had at one stage lacked the means of subsistence, and would probably have received four years’ exceptional leave to remain if the applicable policy had initially been correctly applied. The earlier error was candidly accepted by the Secretary of State.
4. Those matters did not make the later decision irrational. The claimant would not have obtained the leave sought but for the dishonesty in completing the questionnaire. The Secretary of State applied a consistent policy under which an applicant who completed the questionnaire untruthfully was not granted indefinite leave to remain. That policy was not irrational on its face, even though another decision-maker might have exercised the discretion differently.
5. No order for costs was made against the Secretary of State because of the acknowledged administrative error and the fact that the costs would involve transferring funds between public purses. The claimant was permitted to have his costs assessed.

First-instance judicial review decision. The court indicated that any application for permission to appeal should be made to the Court of Appeal.