Abdul Said and Secretary of State for The Home Department
| Jurisdiction | Northern Ireland |
| Judge | McCloskey LJ |
| Judgment Date | 04 September 2023 |
| Neutral Citation | [2023] NICA 49 |
| Court | Court of Appeal (Northern Ireland) |
1
Neutral Citation No: [2023] NICA 49
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: McC12249
ICOS No:
Delivered: 04/09/2023
IN HIS MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
___________
ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
KING’S BENCH DIVISION (JUDICIAL REVIEW)
___________
BETWEEN:
ABDUL SAID
Appellant:
-and-
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent:
___________
Before: McCloskey LJ, Horner LJ and Colton J
___________
Mr John Larkin KC and Ms Darcy Rollins (instructed by Phoenix Law) for the Appellant
Mr Tony McGleenan KC and Mr Aidan Sands (instructed by The Crown Solicitor) for the
Respondent
___________
McCLOSKEY LJ (delivering the judgment of the court)
INDEX
Subject Paragraph No
Introduction 1
The Application Registration Card 2-4
Factual Matrix 7-16
Grounds of Challenge 17
The appellant’s status in the United Kingdom 18-22
The Immigration Rules: Status 23-32
“Outside The immigration Rules” 33-39
Fetter of Discretion Ground: Conclusion 40-46
Article 8 with Article 14 ECHR 56-62
Delay 63-64
Conclusion 65
2
Introduction
[1] Abdul Said (“the appellant”), appeals against the judgment and consequential
order of Humphreys J whereby the appellant’s application for judicial review of the
decision of the Secretary of State for the Home Department (the “Secretary of State”)
refusing his application to be provided with an Application Registration Card
(“ARC”) was dismissed. The impugned decision, contained in the Secretary of
State’s letter dated 28 January 2022, is in these terms:
“Following the refusal of your asylum claim on
21 September 2015 you have lodged further submissions
on 13 May 2021 which are awaiting consideration.
However, as you no longer have an asylum application
pending you are not entitled to be issued with an ARC in
line with paragraph 359 of the Immigration Rules.”
The Application Registration Card
[2] The Application Registration Card (“ARC”) is a device established and
regulated by certain provisions of the Immigration Rules (the “Rules”). The relevant
provisions are contained in paras 359 – 359C:
“359 The Secretary of State shall ensure that, within three
working days of recording an asylum application, a
document is made available to that asylum applicant,
issued in his own name, certifying his status as an asylum
applicant or testifying that he is allowed to remain in the
United Kingdom while his asylum application is pending.
For the avoidance of doubt, in cases where the Secretary of
State declines to examine an application it will no longer
be pending for the purposes of this rule.
359A The obligation in paragraph 359 above shall not
apply where the asylum applicant is detained under the
Immigration Acts, the Immigration and Asylum Act 1999
359B A document issued to an asylum applicant under
paragraph 359 does not constitute evidence of the asylum
applicant’s identity.
359C In specific cases the Secretary of State or an
Immigration Officer may provide an asylum applicant
with evidence equivalent to that provided under rule 359.
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