Kabashi, R (on the Application of) v Secretary of State for the Home Department

Consistency in public decision-making requires a consistent approach to materially similar cases, but it does not require identical outcomes. The decision-maker must exercise judgment and discretion in each case on its particular facts and apply the law and policy in force when the decision is made. A claimant cannot establish a legitimate expectation that a discontinued provision of the Immigration Rules will be applied merely because the claim was part of a historic case backlog. A flawed decision granting only an out-of-country appeal may be withdrawn and corrected by an undertaking that any later removal decision will preserve an in-country right of appeal.

The claimant, a Kosovan national whose asylum claim dated from 2002, challenged decisions concerning his further submissions and removal. The grounds alleged that the Secretary of State had unlawfully granted only an out-of-country right of appeal, had wrongly refused leave on exceptional grounds under paragraph 353B of the Immigration Rules, had acted inconsistently with the treatment of other cases, and had failed to apply paragraph 395C.

The Secretary of State conceded that the appeal decision was flawed and undertook that it would not stand. The remaining issues were whether the claim should be stayed, whether the Secretary of State had acted unlawfully in assessing the claimant's individual circumstances, and whether paragraph 395C continued to govern the case.

1. Ground A succeeded. The Secretary of State accepted that the claimant should have been granted an in-country right of appeal. She undertook that the decision of 25 October 2013 would not stand and that any future removal decision would not be certified as ill-founded so as to deprive the claimant of an in-country appeal.

2. Ground B failed. The claimant's failure to contact the Secretary of State during the period in question was a matter which could properly be taken into account when deciding whether to exercise discretion in his favour on exceptional grounds. The issue did not require the claim to be stayed pending any appeal.

3. Ground C failed. The Secretary of State was required to adopt a consistent approach to cases in a similar category, but consistency did not require the same outcome in every case. Each case had to be decided by applying judgment and discretion to its particular facts, together with the law and policy in force at the time. The approach stated in Hamzeh and others v Secretary of State for the Home Department [2013] EWHC 4113 (Admin) was applied. The requirement for consistency was supported by EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41.

4. Ground D failed. The claimant had no legitimate expectation that paragraph 395C would be applied or that the claim would be allowed. Geraldo v Secretary of State for the Home Department [2013] EWCH 2763 (Admin) established that there was no legal duty to determine legacy cases by a fixed date. Paragraph 395C was no longer in force when the relevant decisions were made; paragraph 353B was the governing provision.

5. Grounds B, C and D were dismissed. The claimant was ordered to pay the Secretary of State's costs, including the costs of attendance at the hearing.