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

The principle that like cases should be treated alike requires a public decision-maker to engage meaningfully with a small and identifiable group of materially similar cases. It does not require a general trawl through other files or eliminate lawful scope for different decisions. Under the 1951 Refugee Convention, serious reasons do not mean the criminal standard of proof. A decision-maker may treat hijacking as a serious non-political crime, but must assess any claimed duress by examining the pressures operating at the relevant time and place. Failure to consider comparable grants of indefinite leave and relevant duress evidence is unlawful. The proper remedy is quashing and reconsideration, not a mandatory grant where the lawful outcome remains open.

The claimant, an Iraqi national involved in the hijacking of an aircraft, challenged the refusal of indefinite leave to remain. His criminal convictions had been quashed by the Court of Appeal because the defence of duress should have been left to the jury: [1998] EWCA Crim 3528. He had been excluded from protection under article 1F of the 1951 Refugee Convention but granted successive periods of discretionary leave.

In October 2011 the Secretary of State refused indefinite leave to remain, granted discretionary leave for three years and directed that the position be reviewed. The claimant argued that earlier grants of indefinite leave to remain to two other hijackers required similar treatment, and that the exclusion decision was irrational or failed to take account of his claimed duress. The central issues were consistency in decision-making and the lawfulness of the exclusion assessment.

1. Disposition. The claim succeeded in part. The decision dated 21 October 2011 was quashed and the matter was remitted to the Secretary of State for reconsideration. A mandatory order requiring the grant of indefinite leave to remain was refused.
2. Like cases. The public law principle that persons in a similar position should be treated similarly, reflected in R(Middlebrook Mushrooms Ltd) v Agricultural Wages Board of England and Wales [2004] EWHC 144 and R v MAFF, ex parte Hamble Fisheries [1995] 2 All ER 714, applies to discretionary powers. The principle does not require decision-makers to trawl through other cases, and conscientious decision-makers may reach different conclusions. However, the relevant comparator group here was small and defined: the other persons involved in the same hijacking. The Secretary of State was required to engage meaningfully and on a principled basis with the treatment of those cases.
3. There were material differences between the claimant and N, including N’s lesser role and refusal to participate in events on the aircraft. H had played a more significant leadership role, while the claimant appeared to have stronger evidence supporting duress. Those differences might justify different outcomes, but the decision-maker had not analysed them meaningfully. The failure was unlawful.
4. Article 1F. The irrationality challenge to exclusion under article 1F was unsustainable. A decision-maker could rationally find serious reasons for considering that hijacking was a serious non-political crime. Serious reasons did not require satisfaction of the criminal standard of proof. Nevertheless, the decision-maker had to undertake a detailed appraisal of the claimed duress and the pressures operating in Sudan and at Larnaca.
5. The decision letter wrongly stated that the claimant was not at risk in Sudan. That finding was inconsistent with the Court of Appeal’s decision and the claimant’s earlier unchallenged evidence. It showed that the claimed defence of duress had not been properly considered. The court did not decide whether duress was ultimately established; that assessment remained for the Secretary of State. Since a lawful decision might still distinguish the comparator cases or exclude the claimant under article 1F, remittal rather than a mandatory grant was appropriate.

The claimant’s criminal convictions were quashed by the Court of Appeal, which held that duress should have been left to the jury: [1998] EWCA Crim 3528. No retrial was ordered. The present decision was a first-instance judicial review; no appeal from it is stated.