Ahmed v Secretary of State for the Home Department

The historic injustice principle in Gurung applies to earlier unlawful and discriminatory government policies that wrongly prevented settlement. It does not treat every historical error as equivalent. A decision lawful on the evidence then available, later shown to be wrong by DNA evidence, is a historical circumstance to weigh under Article 8 ECHR, not an injustice that ordinarily determines proportionality in the applicant’s favour. Deception, a poor immigration record and delay caused principally by repeated applications may outweigh that history. Permission to amend appellate grounds does not itself authorise a new judicial review claim challenging a later decision.

Jamil Ahmed appealed against the Upper Tribunal’s refusal of permission to seek judicial review of the Secretary of State’s refusal of leave to remain. The challenge concerned an alleged historic injustice arising from the refusal in 1972 to recognise his relationship with his father, which was later supported by DNA evidence. The appellant had entered the United Kingdom in 2002 as a visitor but later admitted that he intended to settle.

During the appeal, the Secretary of State issued a further decision on 6 November 2015. The appellant sought to challenge that decision through amended grounds. The central issues were whether the historic circumstances required a different Article 8 ECHR proportionality assessment and whether the later judicial review grounds could properly be pursued in the appeal.

The Court of Appeal, comprising Thirlwall LJ, McCombe LJ and Sharp LJ, dismissed the appeal and the claim for judicial review. The 2013 decision disclosed no arguable error, and the 2015 decision disclosed no arguable ground.

1. New judicial review grounds. Permission to amend grounds of appeal does not, without more, grant permission to introduce a new judicial review claim challenging a later decision. Any such intention must be made clear when permission to amend is sought, so that the question of permission can be considered before the appeal hearing. The court considered the later grounds only to bring finality to prolonged litigation. The approach was consistent with the caution concerning rolling judicial review in Caroopen and others v SSHD [2016] EWCA Civ 1307 and R (Tesfay and others) v SSHD [2016] EWCA Civ 415.
2. Historic injustice. Gurung [2013] EWCA Civ 8 concerned unlawful and discriminatory government policies which wrongly undermined the claimants’ ability to settle in the United Kingdom. Such an injustice could be a powerful factor in the Article 8 ECHR balance. The approach was reflected in Ghising and others (Gurkhas/BOCs: historic wrong: weight (Nepal)) [2013] UKUT 567 (IAC). The 1972 decision here was materially different. It was lawful on the evidence then available, although later DNA testing showed that it was wrong. There was no conduct worthy of condemnation, and a review mechanism had existed once DNA testing became available. The matter therefore remained part of the appellant’s history but was not a historic injustice of the kind recognised in Gurung and did not determine proportionality in his favour.
3. Other circumstances. The Secretary of State was entitled to find that the appellant’s poor immigration record and repeated deception in obtaining entry outweighed the historical circumstances. The passage of time did not justify the deception. Delay was principally attributable to the appellant’s repeated applications and efforts to remain in the United Kingdom, and was not a matter to be held against the Secretary of State. The further arguments concerning irrationality, equivocality and the maintenance of family relationships from abroad were unarguable.

McCombe LJ added that there was little scope in the Court of Appeal for embarking on new judicial review claims concerning later decisions. Sharp LJ agreed with both judgments.

1. Court of Appeal (Civil Division) — In [2017] EWCA Civ 118, the court dismissed the appeal and dismissed the claim for judicial review.
2. Upper Tribunal (Immigration and Asylum Chamber) — On 12 March 2014, Upper Tribunal Judge Gleeson refused permission to claim judicial review of the Secretary of State’s refusal of leave to remain.