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

Under the Applications from abroad policy, an overseas asylum application involves two stages: acceptance and, if accepted, substantive consideration. A consent order requiring the Secretary of State to consider applications under that policy may therefore require both stages.

On judicial review, the court must not substitute its own assessment for that of the Secretary of State. The decision-maker may consider the quality of the evidence, credibility, the absence of an asylum claim elsewhere and the availability of alternative financial support.

The best interests of children are a primary consideration in an Article 8 assessment. Compliance with section 55 is judged by substance rather than by express reference to the section. A fee waiver may be required only where inability to pay combines with a sufficiently strong and compelling Article 8 claim.

The claimant, a Somali national and minor living in the United Kingdom, sought judicial review of the Secretary of State’s refusal to accept or determine overseas asylum applications made by her mother and brother without payment of fees. Earlier proceedings resulted in a consent order requiring the Secretary of State to consider those applications under the withdrawn Applications from abroad policy and decide them by 19 March 2012.

The Secretary of State assessed the applications under the policy’s acceptance and consideration criteria, but rejected them. The claimant challenged the construction of the consent order, the lawfulness of the policy decision, the failure to waive entry-clearance fees, and the alleged violation of Article 8 and the statutory duty concerning children’s welfare.

1. Consent order. The order required the Secretary of State to apply both stages of the Applications from abroad policy: first, whether the applications should be accepted; and secondly, if accepted, whether the asylum claims should be considered. The Secretary of State’s decision rejecting the applications at the acceptance stage complied with the order. No interview was required because the order did not require one and no request for an interview had been made.
2. Policy decision. The court’s task was supervisory. It could not substitute its own view for that of the Secretary of State. The Secretary of State was entitled to consider that the applicants had lived in Ethiopia for several years without claiming asylum or contacting UNHCR, and to treat the limited evidence as relevant to whether they had established a prima facie case or satisfied the refugee criteria. The decision-maker had not asked the wrong question, and the weight given to credibility and genuineness was a matter for her discretion.
3. Children’s welfare. Applying ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 and AJ (India) v Secretary of State for the Home Department [2011] EWCA Civ 1191, the best interests of the children were a primary consideration in the Article 8 assessment. The substance of the Secretary of State’s reasoning showed that those interests had been considered. The absence of an express reference to section 55 of the Borders, Citizenship and Immigration Act 2009 therefore did not invalidate the decision.
4. Fee waiver. The statutory scheme permitted fees for entry clearance applications and allowed the Secretary of State to waive them. The policy limited waiver to the most exceptional, compelling and compassionate circumstances. The Secretary of State had considered the relevant financial and family circumstances and committed no error of law.
5. Article 8. Applying the approach in R (Shueb Sheikh) v Secretary of State for the Home Department [2011] EWHC 3390 (Admin), where the applicant, sponsor and family cannot pay the fee, the strength and compelling nature of the underlying Article 8 claim must be assessed. In a marginal case, the court must also consider available resources and the likely delay. The evidence did not establish an inability to raise the fees within a reasonable time, and the Article 8 claim accordingly failed.
6. The claim was dismissed. Costs were reserved for further submissions.