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

A decision based on an admitted material error of fact must be quashed where the decision-maker cannot show that the outcome would necessarily have been the same without the error. The court cannot grant indefinite leave to remain or substitute its own assessment for that of the Secretary of State. A previous unlawful act or delay may be a mandatory relevant consideration, but it does not require an historic remedy or make other presently relevant circumstances irrelevant. Judicial review determines the lawfulness of a particular decision or failure to act; it is not continuing judicial supervision of an immigration case.

The claimant sought judicial review of the Secretary of State’s failure to determine representations made under the Legacy Programme and of a subsequent decision refusing to treat further human-rights submissions as a fresh claim and refusing leave to remain.

The decision relied on factual assumptions that the claimant had failed to maintain contact, had failed to report, had changed representatives without notification and had worked illegally. The Secretary of State accepted that the decision contained a material error concerning those matters and proposed reconsideration. The issues were whether the decision should be quashed, whether the court could require indefinite leave to remain or impose a timetable, and whether the claim should be stayed pending reconsideration.

1. The claim succeeded. The Secretary of State’s decision dated 21 February 2013 was quashed. The Secretary of State admitted a factual error and could not say that the decision would have been the same had the error not occurred. The error was material because it affected the treatment of the claimant’s earlier asylum and human-rights claim, reporting obligations, work and conduct under the Legacy Programme.
2. The court had no power to grant indefinite leave to remain or to direct the Secretary of State to grant it. Parliament had vested that power in the Secretary of State. The court could review the exercise of the discretion, but could not assume the Secretary of State’s function or substitute its own judgment. This was consistent with R(S) v Secretary of State for the Home Department [2007] EWCA Civ 546 and EU (Afghanistan) and Ors v Secretary of State for the Home Department [2013] EWCA Civ 32.
3. The Secretary of State had to reconsider the facts, inferences and judgments in light of the mistake and then decide whether leave should be granted under the applicable rules and policies. A previous unlawful decision or injustice could be a mandatory relevant consideration, but it was not the only relevant consideration. A discretionary decision ordinarily had to be made by reference to circumstances existing when it was taken. The judge rejected any suggestion that past unlawfulness automatically required the grant of leave, and doubted that the analysis relied on from R (on the application of Mohammed) v Secretary of State for the Home Department [2012] EWHC 3091 (Admin) could survive EU (Afghanistan).
4. A mandatory order requiring a decision by 21 May 2013 was refused because the case might require further inquiry, including an asylum interview. The Secretary of State undertook to use best endeavours to decide the Legacy application by 30 May 2013. A stay was also refused. Judicial review was not an ongoing process of oversight, and any later unlawful decision would require a fresh claim.
5. The Secretary of State was ordered to pay the claimant’s costs, with the usual order for assessment of Legal Aid costs.

First-instance judicial review decision. No prior appellate decision was stated in the judgment.