NA & Anor v Secretary of State for the Home Department

An asylum application is ordinarily determined by reference to the policy in force when it is decided, rather than when it was made. That principle does not prevent judicial review where an earlier unlawful act or omission has caused serious detriment. On reconsideration, the Secretary of State must take into account the power to grant relief that would remedy the injustice. The injustice must be sufficiently serious in its consequences to make failure to remedy it unlawful. Unlawful delay alone does not necessarily satisfy that threshold. The court’s concern is illegality, not maladministration.

NA and AA, Iraqi Kurdish nationals, claimed asylum in 2000 and 1999 respectively. Their applications were refused after the failed-asylum-seekers policy had ended. They later sought indefinite leave to remain, relying on authorities concerning Iraqi policies, unlawful delay and the consequences of the Home Office’s shelving of older asylum claims.

The Secretary of State refused their requests under the 2006 Iraq Policy Bulletin and subsequent guidance. The claimants sought judicial review, arguing that the policy should have been applied when their asylum applications were made, or that the delay and unequal treatment created an obligation to grant relief. The central issues were the relevant date for applying policy and the circumstances in which a later decision must remedy injustice caused by an earlier unlawful act.

1. The claims were dismissed. The failed-asylum-seekers policy was a response to conditions in Iraq. Consistently with the principle in Ravichandran v Secretary of State for the Home Department [1996] Imm AR 97, an asylum claim was ordinarily to be determined by reference to circumstances and policy prevailing when the claim was decided, not when it was made.
2. The fact that this approach could produce different outcomes for applicants who applied at the same time did not make it arbitrary or irrational, provided that the principle was applied consistently. The claimants’ reliance on Rashid was misplaced. That case concerned the failure to apply a policy which was in force when the claim was decided, and its language about the time of the initial application was not a statement of the general principle.
3. Judicial review remained available where the decision was made by reference to the correct current circumstances. The judgments in R(S) v Secretary of State for the Home Department [2007] EWCA Civ 546 established that the Secretary of State’s power to grant relief capable of remedying injustice caused by an earlier legally flawed decision was itself a present circumstance to be considered.
4. The relevant threshold was unlawfulness in the public-law sense, together with consequences so detrimental that it would be wrong not to take the earlier act or omission into account and remedy it. The court’s proper sphere was illegality, not maladministration. Each case depended on its facts.
5. The claimants’ unlawful shelving occurred after the relevant Iraqi policy had expired. Unlike the claimant in R(S), they had not thereby lost the benefit of a policy which would otherwise have applied. The periods of delay established in their cases did not constitute an injustice sufficiently serious to require the grant of indefinite leave to remain. The Secretary of State’s decisions therefore contained no error of law.
6. The alleged legitimate expectation of equal treatment also failed. The evidence did not show that any Iraqi in circumstances materially identical to the claimants had been granted indefinite leave to remain.

The judgment determined two judicial review claims against refusals by the Secretary of State to grant indefinite leave to remain or reconsider the claimants’ cases. Permission for judicial review was granted by Mr Justice Foskett. No decision under appeal was identified.