TN (Iraq) & Ors v Secretary of State for the Home Department

In a renewed second appeal application, the Court of Appeal refused permission where the proposed issue was unlikely to recur and arose from highly unusual facts involving long-revoked immigration policies. The ordinary merits of the argument were also weak. A policy introduced to remedy the unlawfulness identified in [2007] EWCA Civ 546 could not sensibly benefit an applicant who had voluntarily left the United Kingdom before the policy existed, whose case had not been delayed in the relevant way, and who later returned. The absence of evidence that the point affected other cases reinforced the conclusion that it was a one-off issue. The court did not need to determine whether the application was out of time.

This was a renewed application for permission to appeal against a decision of the Upper Tribunal (Immigration and Asylum Chamber). Deputy Upper Tribunal Judge Kelly rejected the applicants’ argument concerning the R(S) policy on 18 March 2013, while setting aside the First-tier Tribunal’s decision on the substance of the new asylum claim. The substantive appeal was later dismissed on credibility grounds, and permission to appeal to the Court of Appeal was refused. The proposed second appeal concerned whether the family could benefit from a policy introduced in 2007 to address the problem identified in [2007] EWCA Civ 546, despite the first applicant’s voluntary departure from the United Kingdom before that policy was introduced.

The renewed application for permission to appeal was refused.

1. Merits. The court was far from persuaded that the proposed appeal would succeed even under the ordinary test. The applicants’ asylum claim had not been delayed for the reasons identified in [2007] EWCA Civ 546. The first applicant had voluntarily left the United Kingdom in 2005, before the R(S) policy was introduced, had lived and worked in Iraq, and had returned only in 2010. The policy therefore could not sensibly apply to the case. On its face, it also did not benefit a person who had lost the benefit of the underlying exceptional leave policy through his own actions.
2. Second appeal threshold. The proposed point was unlikely to arise in many cases. There was no evidence of a substantial number of outstanding appeals or applications turning on it. The relevant exceptional leave policy had been revoked twelve years earlier, the R(S) policy had itself been revoked nearly five years earlier, and the facts were highly unusual. The issue was effectively a one-off and did not pass the second appeal threshold. The court agreed with Patten LJ on that point.
3. Delay. The application was out of time. Although some explanation had been provided, it did not amount to a satisfactory explanation for the delay. It was unnecessary to determine that issue because permission failed on the merits and second appeal threshold.

• Court of Appeal (Civil Division): the renewed application for permission to appeal was refused.
• Upper Tribunal (Immigration and Asylum Chamber): Deputy Upper Tribunal Judge Kelly rejected the R(S) policy argument on 18 March 2013 and set aside the First-tier Tribunal’s decision concerning the new asylum claim for error of law. The substantive appeal was dismissed on 23 December 2013, and permission to appeal was refused on 25 April 2014.
• First-tier Tribunal: the asylum appeal was dismissed on 14 April 2011.