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

Where an immigration appeal has determined the claimant’s entitlement to protection, the Secretary of State cannot later rely on a conviction which could and should have been raised before the appellate decision. An administrative decision cannot circumvent the statutory appeal system or render the earlier determination irrelevant. The principle is subject to exceptions for relevant fresh evidence unavailable at the hearing, changes in law, or later changes in circumstances. Where the Secretary of State’s failure to raise the issue was unlawful, declaratory relief may identify the leave to which the claimant was entitled. Damages for delay remain exceptional.

The claimant, a Turkish national whose asylum appeal had previously been dismissed without consideration of human rights issues, later succeeded before an Immigration Judge on Article 3 grounds. The Immigration Judge found that removal would expose him to a real risk of persecution or ill-treatment and allowed his human rights appeal.

The Secretary of State nevertheless granted only six months’ discretionary leave and relied on the claimant’s criminal conviction to refuse humanitarian protection. The claimant sought judicial review, arguing that the conviction should have been raised before the Immigration Judge and that the Secretary of State was bound by that determination. The central issue was whether the Secretary of State could rely administratively on the conviction after failing to raise it in the statutory appeal.

1. The claim succeeded. The Secretary of State acted unlawfully by relying on the claimant’s conviction after failing to raise it before the Immigration Judge or seek reconsideration of that decision.
2. The court applied the reasoning in Secretary of State for the Home Department v TB (Jamaica) [2008] EWCA Civ 977. The Secretary of State must bring forward the whole of the relevant case in the statutory appeal. An administrative decision cannot circumvent the appellate determination and thereby undermine the statutory scheme.
3. The earlier Immigration Judge had found the claimant credible, accepted the material facts concerning his treatment in Turkey, and found a reasonable likelihood of Article 3 ill-treatment on return. The conviction was relevant to the assessment of the claimant’s protection, yet it had not been raised in the refusal letter or at the hearing. The failure to raise it was a weighty factor in the Immigration Judge’s decision.
4. The principle does not necessarily apply where relevant fresh evidence was unavailable at the hearing, the law has changed, or circumstances or events have changed after the decision. Those exceptions did not apply here. It was unnecessary to determine what the outcome would have been had the conviction been raised before the Immigration Judge.
5. The court declared that the claimant was entitled to five years’ leave to remain, running from 5 June 2006, the date of the Immigration Judge’s decision. The declaration did not itself grant leave; implementation was for the Secretary of State.
6. The claim for damages was refused. Although there had been serious delay and uncertainty, the case was not an exceptional case warranting damages. The defendant was ordered to pay the claimant’s costs, subject to detailed assessment, but not on an indemnity basis.

This was a first-instance judicial review. The judgment described the claimant’s earlier asylum refusal, his later successful human rights appeal before Immigration Judge Cary, and the Secretary of State’s subsequent grant of six months’ discretionary leave.