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

A discretionary-leave policy provision concerned a narrowly defined situation. It applied where the Secretary of State had reconsidered an earlier decision on the same evidence, concluded that the earlier decision was wrong, and thereby established that leave should have been granted previously. A later consideration of a fresh claim, supported by evidence that had to be assessed as a whole, was a fresh decision rather than a reconsideration. The policy therefore did not require indefinite leave to remain merely because some evidence, such as length of residence, had previously been considered.

The claimant, a Zimbabwean national with family and medical circumstances in the United Kingdom, challenged decisions concerning discretionary leave to remain. In December 2010 the Secretary of State refused further submissions and did not grant discretionary leave. Following a further application in August 2011, described as a fresh claim and supported by new and previously considered material, the Secretary of State granted three years’ discretionary leave in December 2011.

The claimant argued that the later decision was a reconsideration of the earlier decision under paragraph 5.2 of the discretionary-leave policy. He contended that the policy therefore required indefinite leave to remain. The central issue was whether the December 2011 decision was a reconsideration on the same evidence, or a fresh decision on a new application.

1. Claim dismissed. The only ground pursued was rejected.
2. Paragraph 5.2 of the discretionary-leave policy was to be construed narrowly. Its second bullet point applied where:
   • an earlier decision, made before the specified date, concluded that leave was inappropriate;
   • the Secretary of State subsequently reconsidered that decision on the same evidence; and
   • the Secretary of State concluded that the earlier decision was wrong.
   In that situation, the claimant should be placed in the same position as if the correct decision had originally been made.
3. The December 2011 decision did not satisfy those conditions. The August 2011 representations were expressly advanced as a fresh claim for asylum, with alternative claims for humanitarian protection and discretionary leave. The evidence included both material previously considered and new, post-dating material, and had to be considered as a whole.
4. The Secretary of State therefore made a fresh decision under the policy in force in December 2011. The decision was not a reconsideration of the December 2010 decision on the same evidence. It was unnecessary to determine whether the earlier decision had been wrong, particularly since it had not been challenged at the time.
5. The claim was dismissed. Costs were subject to assessment under the applicable legal-aid restrictions, with detailed assessment of the claimant’s publicly funded costs.