AJ (Iraq) v Secretary of State for the Home Department

On an application for permission to appeal in judicial review, permission may properly be granted where the first-instance judge has failed adequately to address material issues, even though the appellate court cannot predict ultimate success. Where a refusal of indefinite leave relies on an applicant’s false questionnaire answer, the decision-maker must consider the applicant’s explanation and the circumstances as a whole. That includes whether strict application of an exclusion policy should be mitigated in an unusual case. A judgment which focuses on the false answer while omitting the principal issue for which permission was granted is inadequate.

An Iraqi Kurd who had claimed asylum sought indefinite leave to remain. He argued that an offence involving deception arose from destitution caused by the Secretary of State’s earlier failure to apply an immigration policy. The judicial review relied on the policy failure identified in Rashid v SSHD [2005] EWCA Civ 744 and on a policy developed after AH v SSHD [2006] EWHC 526 (Admin).

The Secretary of State relied on criminal-offence exclusions and, later, on the appellant’s false answer to a questionnaire. Mr Justice Plender focused on the questionnaire and concluded that the refusal was not irrational. The appellant sought permission to appeal, arguing that the judgment had failed to address his explanation and the wider circumstances. The central issue was whether the judgment had adequately dealt with the material issues raised.

Application granted. Carnwath LJ granted permission to appeal but expressed no view that the appellant would ultimately succeed.

1. The Administrative Court had concentrated on the appellant’s false questionnaire answer. It had not adequately addressed the more substantial issue for which permission had originally been granted: whether it was reasonable to apply the exclusion policy strictly where the offence had been committed in circumstances of destitution allegedly caused by the earlier failure to apply policy.
2. A false answer could provide a valid reason for refusing indefinite leave. However, if the Secretary of State relied on that reason, she had to consider the appellant’s explanation and the whole history. She also had to consider whether the strictness of the policy could or should be mitigated in the unusual circumstances. The appellant’s explanation was supported by evidence before the judge.
3. The appellant was entitled to a judgment addressing those material issues. The lower court’s failure to do so justified permission to appeal, without requiring the Court of Appeal to determine the merits of the underlying judicial review.
4. Carnwath LJ accepted counsel’s assurance that an adequately referenced skeleton argument and a manageable, relevant bundle would be provided. Counsel should take responsibility for ensuring proper preparation at appeal level, but the earlier failure was not held against the appellant.

The formal order was: Application granted.

• Administrative Court, Queen’s Bench Division: Mr Justice Plender considered the challenge to the refusal of indefinite leave to remain and concluded that the Secretary of State had not acted irrationally, focusing on the false questionnaire answer.
• Court of Appeal (Civil Division): Maurice Kay LJ had previously refused permission to appeal. Carnwath LJ granted permission because the lower judgment had not adequately considered material issues.