Safi, R (on the application of) v Secretary of State for the Home Department

The ordinary rule is that a later immigration decision is determined by the legal and factual circumstances existing when it is made. That rule may be modified where an earlier decision was unlawful because the Secretary of State failed to apply a relevant policy or legal requirement. In that event, the later decision-maker may need to consider the present need to remedy injustice caused by the earlier illegality.

The earlier decision must, however, have been unlawful, not merely wrong. The decision-maker must have acted outside the range of reasonable conclusions available on the evidence or breached a policy or other legal requirement. Judicial intervention is governed by Wednesbury principles, and proceedings must be brought promptly. The claim was dismissed because the original nationality decision was reasonably reached and the challenge was substantially out of time.

The claimant, an Afghan national born in Pakistan, sought judicial review of decisions refusing him leave to remain. In 2002 he had been refused asylum after the Secretary of State concluded that he was not Afghan. An immigration judge later found that he was Afghan. At the time of the original refusal, Afghan failed asylum-seekers were normally entitled to four years’ exceptional leave to remain, but that policy was subsequently reduced and withdrawn.

The claimant argued that the later decisions were unlawful because they failed to take account of the lost benefit of the policy. The central issues were whether the 2002 decision was legally flawed, whether later decisions had to address the alleged injustice, and whether the proceedings were brought promptly.

1. Claim dismissed. The applications concerning the 2012 and 2014 decisions were rejected. Permission was granted in relation to the 2014 decision, but the application was then dismissed.
2. The starting point was the principle in Ravichandran v Secretary of State for the Home Department [1996] Imm AR 97 that an immigration decision ordinarily proceeds on the legal and factual context prevailing when it is made. That principle may be displaced where a later decision must address the present need to remedy injustice caused by an earlier unlawful decision.
3. The necessary threshold is illegality in the original decision. A decision is not unlawful merely because it is subsequently shown to be wrong. The original decision-maker must have breached a policy or other legal requirement, or reached a conclusion which was not reasonably open on the evidence.
4. The court applied the approach in R (S) v Secretary of State for the Home Department [2007] EWCA Civ 546. The later decision-maker has discretion as to whether and how to take account of past illegality and resulting injustice. The court may intervene only where it was so unfair to proceed without considering the relevant factors that no reasonable Secretary of State could have done so.
5. The 2002 caseworker had been entitled to assess nationality by reference to the claimant’s answers about Afghanistan and had reached a reasonable conclusion on the evidence. The later immigration judge’s finding that the claimant was Afghan did not convert the earlier, reasonably reached decision into an unlawful one.
6. In any event, the claim was brought too late. The principles stated in R (S, H and Q) v Secretary of State for the Home Department [2009] EWCA Civ 142 require prompt proceedings in claims based on the lost benefit of a withdrawn policy. The claimant delayed substantially after the relevant decisions and representations.
7. The alleged fresh claim also had no realistic prospect of success before an independent tribunal under paragraph 353 of the Immigration Rules.

First-instance judicial review proceedings in the Administrative Court. The judgment itself does not state any subsequent appeal.