Muhammad Kashif, R (on the application of) v The Secretary of State for the Home Department

The Upper Tribunal has jurisdiction, under its transferred judicial-review jurisdiction, to review a decision of the Secretary of State wherever in the United Kingdom that decision was made. An applicant’s presence in Scotland does not remove that jurisdiction. The remaining question is one of forum non conveniens: whether the English forum is inappropriate, rather than merely less convenient.

Where no sufficient reason shows that the chosen forum is inappropriate, the claimant’s choice should be respected. A public authority’s failure to address published reconsideration guidance correctly will not justify judicial review if the claimant cannot establish the policy’s preliminary conditions and any lawful decision could only have been adverse.

The applicant, who had long resided unlawfully in Scotland, sought judicial review in England and Wales of the Secretary of State’s refusal to reconsider an earlier refusal of leave to remain on human-rights grounds.

Permission had been granted following an oral renewal. The Tribunal treated it as extending both to territorial jurisdiction and to the merits. The respondent contended that the applicant’s Scottish location raised a forum issue. On the merits, the applicant relied on a published policy for reconsidering certain protection or human-rights claims refused without an appeal before 6 April 2015.

The central issues were whether the Upper Tribunal should exercise judicial-review jurisdiction and whether an allegedly defective response to the reconsideration request was material to the outcome.

1. Judicial review refused. The Tribunal had jurisdiction and should exercise it, but the applicant had not shown any material unlawfulness in the refusal to reconsider.
2. The High Court’s judicial-review jurisdiction, and therefore the Upper Tribunal’s transferred jurisdiction under sections 15 and 19 of the Tribunals, Courts and Enforcement Act 2007, extended to a decision of the Secretary of State irrespective of where in the United Kingdom it was taken. The applicant’s presence in Scotland did not negate jurisdiction.
3. The issue was instead one of forum non conveniens. Following R (Tehrani) v Secretary of State for the Home Department [2006] UKHL 26, the relevant inquiry was whether the English forum was appropriate, not simply practically convenient. The statutory-channeling cases differed from a direct challenge to a ministerial decision. No factor established that England and Wales was an inappropriate forum, and the applicant’s choice was therefore respected.
4. The reconsideration policy applied only where its preliminary conditions were established, including a previous valid protection or human-rights claim falling within its scope. The applicant’s 2011 claim had resulted in a removal decision and did not qualify on that basis. He produced no material demonstrating a later valid claim capable of engaging the policy.
5. In any event, the applicant’s history of fraud meant that there were no exceptional or compelling reasons to reconsider in his favour. Even if the decision letter had failed properly to work through the guidance, a lawful reconsideration could not have produced a favourable outcome. The alleged error was consequently immaterial and caused no legal prejudice.
6. The applicant was ordered to pay the respondent’s costs, summarily assessed at £4,000. An anonymity order and permission to appeal were refused.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review was refused. Permission to appeal was also refused.
• Earlier proceedings: The judgment records that a 2011 human-rights application and associated removal decision led to an appeal which was dismissed. It also records an unsuccessful judicial-review claim in Scotland concerning an earlier decision, but gives no citation.