Mehmood v Secretary of State for the Home Department

Permission to appeal may be granted where it is arguable that the Secretary of State, when refusing to treat further representations as a fresh claim, applied the wrong legal approach. The complaint was arguable that the decision-maker had determined the merits of the protection claim instead of asking whether an immigration judge, applying anxious scrutiny, might realistically reach a different conclusion. Judicial review remains concerned with whether the Secretary of State complied with that approach and acted lawfully on Wednesbury grounds. Granting permission does not determine whether the challenged reasoning was ultimately unlawful.

The appellant, an Ahmadi from Pakistan, challenged the refusal to treat further representations as a fresh claim. The Administrative Court, presided over by Mr Stephen Morris QC, refused the judicial review application. The appellant sought permission to appeal, arguing that both the Secretary of State and the judge had wrongly engaged with the merits and concluded that the earlier immigration decision was correct.

The central issue at the permission stage was whether that complaint was arguable in light of R (WM) (DRC)) v SSHD [2006] EWCA Civ 1495, and whether permission should be granted on the proposed grounds.

1. Permission granted. Lord Justice Longmore granted permission to appeal on grounds 1–3. He required the appellant to file a fresh document headed Grounds of Appeal, stating each ground shortly in one or two sentences.
2. The appellant’s principal complaint was arguable. R (WM) (DRC)) v SSHD [2006] EWCA Civ 1495 was relied on for the approach that the Secretary of State must ask whether there is a realistic prospect that an immigration judge, applying anxious scrutiny, would consider that the claimant faced a real risk of persecution on return. The court’s role was to review the Secretary of State’s decision on Wednesbury grounds, not to make the primary decision itself.
3. It was arguable that the Secretary of State had adopted an unlawful process by engaging in detail with the facts, concluding that the earlier decision was correct, and then stating that there was no realistic prospect of a different immigration decision. It was likewise arguable that the Administrative Court had made the same analytical leap after its own detailed assessment of the facts.
4. The court gave no indication that the appeal would ultimately succeed. The application had arisen late because the proposed ground was first advanced in the appellant’s skeleton argument shortly before the hearing. The appeal was directed to be heard by three judges, one of whom could be a High Court judge with Administrative Court experience.

• Court of Appeal (Civil Division): Permission to appeal granted on grounds 1–3, subject to the filing of concise grounds. The substantive appeal was not determined in this judgment.
• Administrative Court, Queen’s Bench Division: Mr Stephen Morris QC refused the judicial review challenge to the refusal to treat the further representations as a fresh claim.