Gunduz v Secretary of State for the Home Department

Where a consent order requires fresh representations to be considered, the decision-maker must generally assess them under the policy and rules current when the fresh decision is made. An earlier settlement does not, without clear terms or independent evidence, establish that the original adverse decision was erroneous. Nor does a potentially more favourable earlier policy require its application where the reconsideration includes new evidence or changed circumstances. The approach in KA, concerning unfairness caused by applying stricter rules after an unlawful decision, is distinguishable where the consent order permits new facts to be considered.

The claimant, a failed asylum seeker from Turkey, challenged the Secretary of State’s decision to grant him leave for three years and to reject his further representations as a fresh application under paragraph 353 of the Immigration Rules.

A previous judicial review claim had been withdrawn following a consent order requiring the Secretary of State to consider earlier and further representations and issue a fresh decision. The claimant argued that the order and the relevant policy entitled him to indefinite leave to remain because the original adverse decision had been erroneous and the case was being decided on the same evidence. The Administrative Court rejected that argument. The renewed application for permission to appeal concerned the proper effect of the consent order, the applicable policy, and the relevance of KA.

1. Permission refused. The Administrative Court had been entitled to conclude that the consent order did not establish that the original adverse decision was erroneous. Its terms focused on consideration of representations, contained no admission that the earlier decision was wrong or set aside, made no order as to costs, and contemplated further representations. Settlement for pragmatic reasons could not be treated as an acceptance of error without supporting evidence.
2. The critical point was that the claimant’s evidence and circumstances had changed. The order required the fresh evidence to be considered under current policy. It would be inconsistent with that arrangement to apply policies in force before the new evidence was submitted, particularly where some matters arose after the original decision.
3. The argument based on the former policy also failed. Even on that policy the Secretary of State had not granted indefinite leave to remain and had given reasons for refusing it. The judge was entitled to find that the decision was made essentially under paragraph 353B of the Immigration Rules, as the consent order required.
4. KA recognised that applying stricter rules after an unlawful decision may be unfair in some circumstances. That principle did not govern this case, because the order contemplated consideration of new facts rather than substantially the same case being advanced under the earlier, more lenient policy.

The court broadly adopted the analysis of Underhill LJ and refused permission to appeal.

• Court of Appeal (Civil Division): On 23 July 2015, the renewed application for permission to appeal was refused.
• High Court, Queen’s Bench Division (Administrative Court): Ms D Gill rejected the challenge to the grant of three years’ leave and the refusal of the fresh application under paragraph 353 of the Immigration Rules.