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

Where an immigration appeal has been allowed on asylum and related grounds, the Secretary of State cannot withdraw the underlying decision and then deprive the claimant of the benefit of the tribunal’s determination. Withdrawal is lawful only if it does not subvert the appeal process or leave the claimant worse off.

Section 72 of the Nationality, Immigration and Asylum Act 2002 requires decision-makers to consider the statutory presumptions concerning particularly serious crime and danger to the community. A certificate under section 72(9) is procedural, not a condition precedent to applying the presumptions.

Where the Secretary of State concedes the reconsideration process in circumstances treating the tribunal’s decision as standing, the claimant must receive the refugee status and leave to remain to which that decision entitled him.

The claimant, a Ugandan national, sought judicial review of decisions granting him successive periods of discretionary leave rather than recognising him as a refugee and granting asylum-related leave.

An earlier asylum appeal had been dismissed. Following criminal convictions, the Secretary of State made a deportation decision. The claimant appealed, relying on refugee protection and articles 3 and 8 of the Convention. The AIT allowed the appeal on asylum and human-rights grounds. Reconsideration was ordered because the AIT had excluded reliance on section 72 of the Nationality, Immigration and Asylum Act 2002. Before reconsideration, the Secretary of State decided to concede the case, withdrew the deportation decision, and treated the claimant as excluded from refugee protection.

The central issues were the legal effect of that withdrawal, whether a further asylum application remained outstanding, and whether the subsequent grants of discretionary leave were lawful.

1. Section 72. The AIT had erred in law by excluding reliance on section 72 because no certificate had been served and because the issue had been raised late. The presumptions concerning the seriousness of the crime and danger to the community had to be considered by the Secretary of State and the AIT. The burden of rebutting the presumptions lay on the claimant. A section 72(9) certificate affected procedure only; it was not a condition precedent to applying section 72.
2. Effect of the AIT decision. The AIT had allowed the appeal on asylum, article 3 and article 8 grounds, with the result that the deportation decision should be set aside. Its determination was binding once the reconsideration process was conceded or abandoned. The absence of a direction did not deprive the determination of binding effect.
3. Withdrawal. Rule 17(2) of the AIT Procedure Rules 2005 gave the Secretary of State power to withdraw the decision under appeal. That power could not be used to deprive the claimant of a remedy otherwise obtainable from the AIT or to place him in a worse position than if the appeal had proceeded. The withdrawal in this case was part of a decision to concede the reconsideration and accept the AIT decision. Treating the claimant thereafter as a failed asylum seeker unlawfully subverted the appeal process.
4. Relief. No asylum application dated 1 February 2007 remained outstanding for determination on 7 December 2009. The claimant was entitled to be treated as having been granted refugee status and asylum, with leave to remain as a refugee from 27 May 2007. The grants of discretionary leave dated 12 September 2008 and 7 December 2009 were unlawful. The judicial review succeeded and appropriate declarations were granted.

First-instance judicial review. The judgment describes earlier AIT decisions and a reconsideration order, but the present proceedings were not an appeal from the AIT determination.