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

Under paragraph 353B of the Immigration Rules, the Secretary of State has a discretion whether to conduct a review. Once that discretion is exercised, the review must comply with the paragraph, including consideration of its specified factors and all relevant circumstances. A decision resulting from that review is unlawful only if it involves a public law error, such as irrationality or failure to take relevant matters into account. Allegations requiring detailed investigation of disputed evidence, including alleged mishandling of an asylum claim, generally fall outside the proper scope of judicial review. Professional qualifications, occupation and the absence of a criminal record do not, without more, establish exceptional circumstances.

The claimant, an Iranian national, entered the United Kingdom in 2000 and claimed asylum. His asylum claim and later submissions were rejected, and his appeal rights became exhausted in June 2009. He later asked the Secretary of State to conclude his case under the legacy programme.

Permission to seek judicial review was granted on the issue whether the Secretary of State had unlawfully failed to consider the claimant under paragraph 353B of the Immigration Rules, or failed to give reasons for doing so. Before the substantive hearing, the Secretary of State made a decision under paragraph 353B and concluded that removal remained appropriate. The central issue was whether that decision was lawful.

1. The application for judicial review was dismissed. The Secretary of State had made a decision under paragraph 353B of the Immigration Rules and had regard to the specified factors and relevant circumstances.

2. The Secretary of State retained a discretion whether to conduct a paragraph 353B review. The analysis in Khanum [2013] UKUT 311 supported that conclusion. However, having elected to conduct the review, the Secretary of State was required to do so in accordance with paragraph 353B.

3. The Secretary of State considered the claimant’s character, conduct and association, compliance with immigration controls, length of residence, compassionate circumstances and legacy-related matters. Her conclusion that there were no significant compelling reasons to grant leave was not irrational or Wednesbury unreasonable.

4. The claimant’s professional background, occupation and absence of a criminal record did not amount to exceptional circumstances or undermine the Secretary of State’s conclusion. Allegations that the asylum claim had been deliberately sabotaged, and complaints about the immigration tribunal’s conduct, depended on disputed evidence and were outside the scope of the permitted judicial review claim.

First-instance judicial review proceedings. Permission was granted on 5 July 2013 on a single paragraph 353B ground. The application was dismissed.