Mousasaoui v Secretary of State for the Home Department

An administrative mistake, even a serious misstatement, does not amount to illegality without more. A misstatement about an immigration review cannot by itself justify leave outside the Rules where it caused no prejudice. The residual discretion under rule 353B is narrow and will necessarily be exercised only rarely. Residence is relevant only where it was spent in the United Kingdom for reasons beyond the claimant’s control. The exceptional nature of the discretion does not disapply ordinary public law requirements, but a factual error is immaterial where it could not have affected the outcome.

The appellant, an Algerian national, claimed asylum in 1998. His claim and subsequent appeal were refused, and his appeal rights were exhausted in 2002. After later contact with the legacy-case system, he challenged a decision stating that his case had been reviewed and that he had no basis to remain. The Secretary of State later accepted that no substantive legacy decision had been made at that stage.

The High Court dismissed the judicial review claim. It held that the alleged historic injustice did not establish unlawfulness and that an inaccurate account of the appellant’s reporting history was immaterial in the narrow discretionary context of rule 353B. The appeal concerned whether the earlier misstatement amounted to illegality and whether the factual error required the decision to be quashed.

1. Appeal dismissed. The misstatement that the appellant’s case had been fully reviewed, when no substantive decision had been made, was not illegal merely because it concerned a matter of importance to him. Administrative mistakes, even serious ones, do not become unlawful without more. The court followed R(S) [2007] EWCA Civ 546 and distinguished illegality from maladministration.
2. A historic-injustice argument requires prior illegality and a sufficient causal connection between that illegality, the alleged injustice and the prejudice said to result from the decision under challenge. Conspicuous unfairness alone is insufficient. The misstatement could not be an exceptional circumstance under rule 353B because the appellant was not misled or prejudiced.
3. The discretion under paragraph 353B of the Immigration Rules, read with chapter 53 of the Enforcement Instructions and Guidance, is narrow. It operates as a safety valve in circumstances that will necessarily be rare. Residence is relevant only where the time was spent in the United Kingdom for reasons beyond the claimant’s control.
4. The narrow scope of the discretion does not authorise wholesale disapplication of ordinary public law principles. Nevertheless, it was inconceivable that a different conclusion would have been reached had the appellant’s reporting history been stated accurately. The Deputy Judge was entitled to treat the error as immaterial, and the Court of Appeal would not interfere.
5. R (Rashid) v Secretary of State for the Home Department [2005] EWCA Civ 744 had been overruled by TN (Afghanistan) v Secretary of State for the Home Department [2015] UKSC 40. Lord Justice Tomlinson and Lord Justice Sales agreed with the Master of the Rolls.

• Court of Appeal (Civil Division) — The appeal was dismissed on 13 January 2016.
• High Court of Justice, Queen’s Bench Division — The judicial review claim was dismissed. The Deputy Judge held that the reporting-history error was immaterial in the context of rule 353B.