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

A policy granting recognised refugees five years’ limited leave is lawful where it reflects the Secretary of State’s broad discretion and the minimum period required by the Qualification Directive. A departure from that norm requires circumstances that are most exceptional, meaning significantly outside the norm. Lengthy residence, administrative delay, alleged past errors, vulnerability and mild depression do not necessarily meet that threshold, whether considered individually or cumulatively. A general policy may prescribe a norm while allowing exceptions. The corrective principle concerning conspicuous unfairness does not automatically require indefinite leave where earlier decisions may have been wrong. A legitimate expectation cannot arise from an unknown, uncommunicated practice of granting more generous leave to other applicants.

The claimant, an Iranian Ahwazi Arab, had pursued asylum proceedings since 2004. Following an Upper Tribunal decision allowing his appeal on asylum and human rights grounds, the Secretary of State granted him five years’ limited leave to remain as a refugee. He sought judicial review, arguing that delay, earlier decisions, the legacy programme and his personal circumstances required indefinite leave to remain.

The central issues were whether the Secretary of State had unlawfully applied the five-year policy, failed to consider exceptional circumstances or the effect of earlier errors, and whether the claimant had a legitimate expectation of indefinite leave.

1. The application for judicial review was dismissed. The Secretary of State acted lawfully in granting five years’ limited leave rather than indefinite leave.

2. The grant and duration of leave fell within the Secretary of State’s broad discretionary power under Immigration Act 1971, section 4(1). The Immigration Rules and policy guidance were statements of administrative policy which decision-makers were required to take into account.

3. Paragraph 339Q(i) of the Immigration Rules and section 2.2 of the Asylum Policy Instruction established five years as the ordinary grant for a person granted asylum, subject to compelling specified circumstances and the policy’s most exceptional circumstances proviso. The Qualification Directive required at least three years’ leave but did not require indefinite leave.

4. A policy may identify a norm to promote consistency and administrative efficiency while allowing exceptions. Most exceptional circumstances meant circumstances significantly outside the norm. The court left open whether vulnerability with special needs was a necessary prerequisite, but assumed in the claimant’s favour that any circumstances, singly or cumulatively, could suffice.

5. The reasoning in Hakemi v Secretary of State for the Home Department concerned whether leave should be granted after prolonged residence, not the length of leave. Statistical evidence that indefinite leave had often been granted could not establish what would inevitably have happened in the claimant’s individual case.

6. The corrective principle in Rashid v Secretary of State for the Home Department was of doubtful application and, in any event, required conspicuous unfairness amounting to abuse of power. Even assuming earlier decisions were wrong and the reasons given were deficient, the claimant had suffered no injustice requiring indefinite leave. The policy had changed, and different periods of leave for different routes were not inherently unlawful.

7. The claimant’s residence of approximately nine years, past ill-treatment, limited depression and treatment, administrative delay and assumed past errors did not amount, individually or cumulatively, to most exceptional circumstances. His vulnerability did not demonstrate special needs of sufficient gravity.

8. No legitimate expectation arose from the fact that other legacy applicants, unknown to the claimant, had sometimes received indefinite leave. There was no clear, unambiguous and unqualified promise or representation, no assurance that policy would not change, and no reliance. The claimant was entitled to have his application determined under the Directive and the policy in force when it was decided.

First-instance judicial review proceedings. The claimant challenged the Secretary of State’s decision to grant five years’ limited leave to remain.