ZS (Afghanistan), R (On the Application Of) v The Secretary of State for the Home Department

A mistake of fact may ground judicial review where it causes unfairness. The ordinary requirements are an existing factual mistake, an objectively verifiable and uncontentious fact, absence of responsibility on the applicant or advisers, and material influence on the decision. A later tribunal finding does not by itself make an earlier decision unlawful. The no-fault requirement is not satisfied where the applicant’s own inaccurate account materially caused the mistake. A historic failure to consider a withdrawn immigration policy does not itself establish public-law illegality or make the grant of leave mandatory. Substantial delay in raising the issue and commencing proceedings may also justify refusing permission.

The applicant sought renewed permission to appeal the dismissal by Sir Stephen Silber, sitting in the Administrative Court, of challenges to refusals of leave to remain. His asylum claim had been refused in 2002 after the Secretary of State disputed his Afghan nationality. The First-tier Tribunal later dismissed his appeal but found that he was an Afghan national born in Pakistan. The applicant argued that the Secretary of State should have considered historic policies granting leave to Afghan nationals, including a policy for delayed failed asylum claims. He also alleged an error of fact and failure to exercise discretion lawfully. The central issues were whether the original decision was unlawful, whether the historic omission constituted a public-law error, and whether delay defeated the challenge.

The Court of Appeal refused the renewed application for permission to appeal.

1. The Secretary of State’s 2002 decision was not unlawful on the material and information then available. The caseworker was entitled to conclude that the applicant was not an Afghan national given his inability to answer most questions about Afghanistan. The First-tier Tribunal’s later finding did not retrospectively establish that the earlier decision was unlawful.
2. Guidance was obtained from E v SSHD [2004] EWCA Civ 49. A mistake of fact in judicial review must cause unfairness and ordinarily requires: a mistake as to an existing fact; an established, uncontentious and objectively verifiable fact; no responsibility for the mistake on the part of the applicant or advisers; and material influence on the decision-maker.
3. The no-fault requirement was not met. The applicant’s account, including his failure to provide accurate information about Afghanistan, materially caused the error. Requiring the caseworker to infer Afghan nationality from his birth in Pakistan, where Afghan refugees lived, imposed too high a standard. The asserted historical error therefore did not give rise to an arguable public-law illegality.
4. It was also unarguable that the only reasonable exercise of discretion would have been to grant exceptional leave followed by indefinite leave. The historic policy point was raised only after substantial delay, including an 18-month delay after the applicant was told that he had no basis to remain and should leave. The policy had also been withdrawn long before proceedings were issued.

Order: application refused.

1. Court of Appeal: Refused the renewed application for permission to appeal and ordered that the application be refused.
2. High Court, Administrative Court: Sir Stephen Silber dismissed the applications for judicial review of the Secretary of State’s decisions refusing leave to remain.