Polat, R (On the Application Of) v The Secretary of State for the Home Department

A concessionary immigration policy must be applied according to its express exclusions. Where the policy refers to Refugee Convention Article 1F(a) and (c), but not Article 1F(b), exclusion cannot be based on Article 1F(b) without a separate and reasoned decision under another applicable exclusion. For Article 1F(c), mere membership of a terrorist organisation, general evidence of support, or presence during an armed clash is insufficient. The decision-maker must apply the JS (Sri Lanka) factors and conduct a close, individual assessment of whether the applicant voluntarily made a significant contribution to acts contrary to the purposes and principles of the United Nations.

The claimant sought judicial review of decisions refusing his application for indefinite leave to remain under the One Off Exercise for qualifying asylum-seeking families. The Secretary of State relied on Refugee Convention Article 1F(b), based on alleged possession of a firearm, and Article 1F(c), based on the claimant’s alleged involvement with the PKK and encouragement of armed struggle.

The claimant argued that Article 1F(b) was not an exclusion in the policy and that the evidence did not satisfy the test in JS (Sri Lanka) [2010] UKSC 15. The central issues were whether the Secretary of State had relied on an irrelevant consideration and whether the Article 1F(c) conclusion was irrational.

1. The claim succeeded. The decisions dated 28 April and 6 August 2010 were declared unlawful and Wednesbury unreasonable. A quashing order was made in respect of the decision excluding the claimant from the One Off Exercise.

2. The express exclusions in the One Off Exercise referred to Article 1F(a) and (c), but not Article 1F(b). The Secretary of State’s detailed reasoning treated possession of the pistol solely as a serious non-political crime under Article 1F(b). The alternative argument that the claimant’s presence was not conducive to the public good was unsupported by the decision letters. Article 1F(b) was therefore irrelevant to the policy decision and could not sustain the refusal.

3. For Article 1F(c), the applicable test, adapted from JS (Sri Lanka) [2010] UKSC 15, was whether there were serious reasons for considering that the claimant voluntarily contributed in a significant way to the PKK’s ability to pursue its purpose of committing terrorist acts or other acts contrary to United Nations purposes and principles, knowing that his assistance would further that purpose.

4. The seven factors identified in JS (Sri Lanka) [2010] UKSC 15 had to be considered. The Secretary of State failed adequately to address recruitment, duration of involvement, opportunities to leave, and the claimant’s actual position, rank, influence and personal role. The general assertion that he encouraged others in an armed struggle did not establish the nature or quality of that conduct. Mere membership, active support, or presence during an armed clash was insufficient without more.

5. The Secretary of State also failed to consider whether the 2 July 1996 incident was military action against government forces rather than terrorist activity. The evidence did not rationally establish a significant contribution to terrorist acts. The Article 1F(c) conclusion was therefore Wednesbury unreasonable. The court reserved the precise consequential orders, including any mandatory relief and costs.

This was a first-instance judicial review. The judgment records that the claimant’s original asylum appeal was dismissed by an adjudicator in September 2002. The Secretary of State later made the decisions under challenge in April and August 2010. Permission to apply for judicial review was granted by Kenneth Parker J on 2 November 2010.