ZG (Afghanistan) v Secretary of State for the Home Department

A claimant cannot use a later challenge to removal as a vehicle for reopening asylum decisions whose appeal or judicial-review periods have expired. A claim based on alleged historic injustice is therefore out of time where it seeks to establish the unlawfulness of those earlier decisions.

Even if the Secretary of State retains a discretion to take past injustice into account when deciding whether to grant discretionary leave, the decision is reviewable only on public-law grounds. The relevant threshold is whether removal would be so unfair that no reasonable Secretary of State would remove the claimant. A decision will stand where the discretion was considered and the outcome is not Wednesbury unreasonable.

The claimant, who arrived in the United Kingdom as an unaccompanied 16-year-old, challenged 2012 decisions to remove him to Afghanistan. He alleged that earlier asylum refusals in 2007 and 2010 were unlawful and created a historic injustice requiring corrective leave.

The High Court dismissed the judicial-review claims: [2013] EWHC 3365 (Admin). On a renewed application for permission to appeal, following the Supreme Court's decision in TN and MA (Afghanistan) [2015] UKSC 40, the claimant no longer pursued an alleged entitlement to corrective relief. The central questions were whether the matter should be remitted for consideration of discretionary leave and whether the earlier asylum decisions could effectively be reopened through the later removal challenge.

1. Renewed application refused. The application could not proceed on the basis that an historic injustice automatically created an entitlement to corrective leave. Following TN and MA (Afghanistan) [2015] UKSC 40, the remaining possible issue was whether the Secretary of State retained a discretion to take past injustice into account when deciding whether to grant discretionary leave rather than asylum. The court was prepared to proceed on the basis that such a discretion might exist in an appropriate case.
2. Earlier decisions could not be reopened. The alleged historic injustice depended on establishing that the 2007 and 2010 asylum refusals were unlawful. Any challenge to those decisions was hopelessly out of time. Judicial review had been available in relation to the 2007 decision, and the statutory appeal arising from the 2010 decision had been exhausted. It would therefore be wholly inappropriate to use the later removal proceedings as a vehicle for examining the lawfulness of decisions made many years earlier.
3. Discretionary leave and public-law review. The relevant question, reflected in the passage from AA v Secretary of State for the Home Department [2012] EWCA 1643, was whether any failure to endeavour to trace the claimant's family had caused such prejudice that removal would be so unfair that no reasonable Secretary of State would remove him. The Secretary of State had asserted that the corrective principle did not require discretionary leave. The brevity of the consideration was understandable because the claim had originally been framed as an entitlement to corrective relief. The court found no basis to disbelieve that discretion had been considered, and the decision could not sensibly be described as Wednesbury unreasonable.
4. Both objections were independently fatal. The renewed application for permission to appeal was refused.

1. Court of Appeal (Civil Division): the renewed application for permission to appeal was refused.
2. High Court of Justice, Queen's Bench Division (Administrative Court): Ms Gill, sitting as a Deputy Judge, dismissed the judicial-review claims concerning the 2012 removal decisions: [2013] EWHC 3365 (Admin).