MOHAMMED ALAM MAMOUR v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Where an earlier unlawful failure to grant discretionary leave amounts to a significant historic disadvantage, the decision maker must treat that disadvantage as a material consideration in the Article 8 proportionality assessment and in deciding whether later representations amount to a fresh claim under paragraph 353 of the Immigration Rules. A decision is unlawful if it omits that consideration, even if it addresses other aspects of private and family life.

The decision maker must also consider a material misstatement of fact by the Secretary of State which contributed to the claimant’s removal. Quashing does not determine the substantive immigration outcome. The lawful course is a fresh decision on the correct legal footing, taking all material matters into account.

The applicant, an Afghan national, had claimed asylum after entering the United Kingdom in 2005. Although an Immigration Judge found his asylum account not credible, the judge found him to be a minor. The Secretary of State accepted in these proceedings that she should then have granted discretionary leave, but did not do so.

An earlier judicial review of the refusal to treat representations as a fresh claim succeeded because the Secretary of State had not properly addressed that historic injustice. Before that decision was handed down, she made the fresh refusal decisions challenged here, dated 21 February and 23 July 2013. The applicant had by then been removed from the United Kingdom.

The central issues were whether the Secretary of State lawfully assessed Article 8 and paragraph 353 of the Immigration Rules, and whether the Tribunal should require her to facilitate the applicant’s return pending reconsideration.

1. The judicial review succeeded. The Tribunal quashed the decisions of 21 February and 23 July 2013. The Secretary of State was required to make a fresh decision within five weeks and serve it on the applicant’s representatives.

2. The Secretary of State had failed to consider two material matters when deciding both Article 8 and whether the representations amounted to a fresh claim under paragraph 353 of the Immigration Rules. First, her conceded failure to grant discretionary leave after the age finding was itself a significant disadvantage. It had to be weighed in the Article 8 proportionality assessment. Her consideration of other Article 8 factors did not cure that omission.

3. Secondly, she had to consider the relevance of the applicant’s removal after the High Court and Tribunal had acted on her inaccurate assertion that Kent Social Services had re-assessed his age. The chronology showed a sufficient connection between that misstatement and the removal. It was no answer that the applicant had not raised the point before the February decision: the Secretary of State knew of the inaccurate assertion, and the point was in any event raised before the July supplementary decision.

4. The Tribunal did not hold that leave had to be granted or that the representations necessarily constituted a fresh claim. Those matters remained for a lawful reconsideration.

5. The Tribunal refused a mandatory order requiring the Secretary of State to facilitate the applicant’s immediate return to the United Kingdom. Applying the principles in R (YZ – China) [2012] EWCA Civ 1022, the balance of convenience did not favour such relief. The applicant had been abroad for more than two years, did not claim an immediate fear of persecution in the country where he was living, and a prompt fresh decision was ordered.

6. Permission to appeal to the Court of Appeal was refused under rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008.

• Upper Tribunal (Immigration and Asylum Chamber): this judgment quashed the Secretary of State’s decisions of 21 February and 23 July 2013 and ordered a fresh decision within five weeks.
• Upper Tribunal: in earlier judicial review proceedings, Judge Storey quashed the Secretary of State’s decision of 13 February 2012, but refused mandatory relief requiring the representations to be treated as a fresh claim or requiring the applicant’s return to the United Kingdom.
• Upper Tribunal: permission to bring the earlier judicial review was granted by Judge Jordan on 18 September 2012; an interim return order was refused.
• High Court and Upper Tribunal: removal was initially stayed by Beatson J, but the stay was discharged after HHJ McKenna refused permission. Further stay applications were refused before the applicant’s removal on 10 July 2012.