HN & Ors, R (on the application of) v Secretary of State for the Home Department

Judicial review should not ordinarily proceed on material evidence which has not been considered by the primary decision-maker. Where further representations will foreseeably produce a new decision, the application will normally be moot, an alternative remedy will remain unexhausted, and the prohibition on rolling judicial review will apply.

An inter-governmental memorandum governing repatriation does not itself confer enforceable individual rights. It may nevertheless be a material consideration in a removal decision. The Article 15(c) threshold remains stringent and must be assessed on the available country evidence.

Five Afghan nationals were selected as lead applicants from a larger group challenging proposed removal to Afghanistan. Following interim relief, the Secretary of State considered further representations and made new decisions under paragraph 353 of the Immigration Rules. During the proceedings, both parties generated substantial further evidence.

The applicants relied on Article 15(c), the safety and reasonableness of internal relocation, private-life claims, and a memorandum of understanding concerning returns. They also proposed further representations which would foreseeably require fresh decisions. The central issue was what the Tribunal could properly and usefully decide in a rolled-up judicial review hearing.

1. Permission was granted to the five lead applicants, but their judicial review applications were dismissed. The permission applications of the remaining applicants were dismissed. Later applications seeking to revive individual claims were also dismissed.

2. It was ordinarily undesirable for judicial review to be determined on material evidence not considered by the primary decision-maker. A court should not conduct a moot or permit rolling review. Where further representations will foreseeably lead to fresh decisions, the appropriate course will normally be to refuse permission or dismiss the claim because it is moot, an alternative remedy remains unexhausted, or both.

3. Exceptionally, the Tribunal determined the rolled-up applications substantively. The extensive investment of judicial and party resources, the large number of related claims, and the usefulness of guidance for foreseeable future decisions justified that marginal course. Applying R v Secretary of State for the Home Department, ex parte Launder [1997] 1 WLR 839, it considered all the evidence, including post-decision material.

4. The memorandum of understanding and related Notes Verbales regulated practical inter-state arrangements for Afghan repatriation. They did not confer rights or obligations enforceable by affected individuals and did not determine return-risk issues under the Refugee Convention, the Qualification Directive or Article 8. However, the memorandum was an expression of United Kingdom policy and was therefore a material consideration in every proposed repatriation.

5. The Tribunal found no rational basis to depart from the country guidance in AK (Article 15(c) Afghanistan) [2012] UKUT 00163. The evidence did not meet the stringent Article 15(c) threshold. Nor had the applicants established that the Secretary of State had failed to take the memorandum into account.

6. Claims based on paragraph 276ADE or paragraph 353B of the Immigration Rules, and SA's new durable-solutions case, had not properly been put to or decided by the Secretary of State. The Tribunal declined to adjudicate them. Permission to appeal was refused. Applying Edwards & Ors, R (on the application of) v Environment Agency & Ors [2008] UKHL 22, the Tribunal also confirmed that draft judgments are supplied only to identify errors and ambiguities, not to reargue the case.

Upper Tribunal (Immigration and Asylum Chamber): Rolled-up applications for permission to apply for judicial review and substantive judicial review. The Tribunal granted permission to the five lead applicants and dismissed their claims. It dismissed the remaining permission applications and refused permission to appeal.