Mohamed Alam Mamour, R (on the application of) v The Secretary of State for the Home Department

A refusal to treat further representations as a fresh claim is Wednesbury unreasonable where it fails to give proper weight to a material historic injustice. Where an applicant was wrongly denied discretionary leave as an unaccompanied minor, the resulting disadvantage is itself material and must be weighed in the Article 8 assessment.

On judicial review, the Upper Tribunal may quash and remit a decision under the Tribunals, Courts and Enforcement Act 2007, but cannot substitute its own decision for that of the Secretary of State. The return of a person removed from the United Kingdom remains discretionary and fact-sensitive; there is no presumption that return must be ordered.

The applicant, an Afghan national, sought judicial review of the Secretary of State’s refusal, dated 13 February 2012, to treat his further representations as a fresh claim. His asylum appeal had previously been dismissed, although the Immigration Judge had found him likely to be 16. The Secretary of State did not grant discretionary leave, relying on an incorrect understanding that a further age assessment had confirmed that he was over 18.

The applicant was removed before permission for judicial review was granted at an oral renewal hearing. At the substantive hearing, the Secretary of State did not resist the claim but sought an adjournment to make a fresh decision. The issues were whether the refusal was irrational and what relief, including any order for the applicant’s return, should follow.

1. The claim succeeded. The refusal of 13 February 2012 to treat the further representations as a fresh claim was Wednesbury unreasonable and was quashed. The matter was remitted to the Secretary of State for reconsideration in accordance with the Tribunal’s findings.

2. The refusal was sound insofar as it addressed the renewed asylum materials and the evidence relied on for private and family life. However, it contained an insurmountable error concerning the historic injustice arising from the failure to grant discretionary leave after the Immigration Judge’s finding that the applicant was a minor.

3. The refusal letter treated the absence of discretionary leave as causing no disadvantage. That approach was inconsistent with AA (Afghanistan) [2007] EWCA Civ 12, which treated that failure as a significant disadvantage in itself. The Secretary of State also failed to weigh the resulting detriment in the Article 8 assessment. This was a failure to consider a potentially material relevant factor.

4. Under sections 15 and 17 of the Tribunals, Courts and Enforcement Act 2007, the Tribunal could quash the decision and remit it with directions. It could not require the Secretary of State to accept the representations as a fresh claim, since that would substitute the Tribunal’s decision for hers. The remitted assessment required consideration of Article 8 and, if relevant, paragraph 353B of the Immigration Rules, with the historic disadvantage placed in the balance.

5. No order requiring the Secretary of State to use best endeavours to return the applicant was appropriate. Following R (on the application of YZ (China)) v Secretary of State for the Home Department [2012] EWCA Civ 1022, return was a fact-sensitive discretionary issue and no presumption applied. A return issue would become real only if the remade decision gave the applicant a fresh right of appeal.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review proceedings were transferred from the High Court to the Upper Tribunal. Permission was granted at an oral renewal hearing after the applicant’s removal. The Tribunal quashed the fresh-claim refusal and remitted it for reconsideration.
• Immigration Judge: The applicant’s earlier asylum appeal was dismissed. The judge nevertheless found him likely to be 16 and indicated that the Secretary of State might grant limited leave until he reached 18.