R (on the application of K) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Beatson |
| Judgment Date | 29 November 2010 |
| Neutral Citation | [2010] EWHC 3102 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/15208/2009 |
| Date | 29 November 2010 |
[2010] EWHC 3102 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
33 Bull Street, Birmingham, B4 6DS
Before: The Honourable Mr Justice Beatson
Case No: CO/15208/2009
Mr Christopher Jacobs (instructed by TRP Solicitors) for the Claimant
Mr Robert Kellar (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 8 November 2010
The Honourable Mr Justice Beatson :
Introduction 1. The claimant is a citizen of Afghanistan, now aged 44 and a medically qualified doctor. He was removed from the United Kingdom to Afghanistan on 21 January 2006. He subsequently left Afghanistan and in April 2010 was in the Ukraine. The issues in his application for judicial review arise because of changes of policy by the Secretary of State for the Home Department during the consideration of his application for asylum. The effect of such changes of policy has been considered by the courts on a number of occasions.
In this case the first issue is whether or not a person outside the United Kingdom is potentially a beneficiary of a policy (“the R (S) policy”) introduced by the Secretary of State on 4 September 2008 in the light of R (S) v Secretary of State for the Home Department [2007] EWCA Civ 546. In that case the Court of Appeal held that a decision by the Secretary of State in 2002 to put certain asylum applications “on hold” to enable later applications to be dealt with within the government's target of 60 days was unlawful. The effect of putting the earlier applications “on-hold” was that the claimant's application was not decided until after the withdrawal of a policy to give applicants from Afghanistan exceptional leave to remain. The R (S) policy was formulated to address the position of those who were adversely affected by the delay in dealing with their asylum applications until after the exceptional leave to remain policy had been withdrawn. Applicants within its scope are normally given indefinite leave to remain in the United Kingdom.
The second issue is whether an application by the claimant based on R (S), made on 7 November 2008, was in time. It was submitted on behalf of the Secretary of State that the claimant delayed in making his application and that there is consequently no unfairness in the Secretary of State's refusal to grant him exceptional leave to enter the United Kingdom to enable his position to be considered in the light of the R (S) policy.
These proceedings were launched on 14 December 2009. At that time the defendant had not responded to or made a decision on the claimant's November 2008 application. Permission was refused on the papers by me on 11 March 2010. The grounds were amended on 15 March and 14 September 2010 in the light of the defendant's decision on 21 December 2009 refusing the application and her supplemental response dated 2 July 2010.
By 2 July 2010 permission had been granted. Wyn Williams J gave permission on 20 April 2010 at an oral hearing. He did so on the basis that the claimant would not rely on anything which occurred prior to the publication of the R (S) policy on 4 September 2008 except for the facts relating to his case which would engage that policy. Mr Jacobs, in paragraph 3 of his skeleton argument on behalf of the claimant, makes it clear that the claimant's case is not put on the basis that he is entitled to rely on any act or concession made by the Secretary of State before she published the R (S) policy.
The evidence on behalf of the claimant consists of his statement dated 3 December 1999, and a statement dated 16 April 2010 by Ms Bushra Ali, his solicitor. The evidence on behalf of the defendant consists of a statement by Mr Neil Forshaw, an Assistant Director at the UK Border Agency's (hereafter “UKBA”) Case Resolution Directorate. He was involved in the discussions which led to the R (S) policy being implemented and, with colleagues, for the formulation of that policy.
Mr Forshaw's statement is dated 3 November 2010, two working days before the hearing, and four and a half months after the defendant's detailed grounds were served. An application to admit this very late evidence was not opposed. But I observe that it is unfortunately becoming all too common for the defendant in immigration judicial reviews to serve evidence at the very last minute. The court is aware of the pressures that face those who work in the UKBA and the immigration section of the Treasury Solicitor's Department as a result of their enormous case load. There is, however, a stark contrast between the expectations the defendant has for applications by claimants in cases such as these and what is now the commonplace practice by the defendant.
The factual and policy background
The material facts are conveniently summarised in the helpful skeleton arguments by Mr Jacobs and Mr Kellar. On 25 September 1999 the claimant arrived in the United Kingdom and applied for asylum. His claim to refugee status is that he and his family had been members of the Khalq Democratic Party/PDPA in Afghanistan, that he was approached by the Taliban when they came to power in 1996 and asked to assist them because they were desperate for doctors, that his brother was publicly hanged by the Taliban in 1999, and that after his brother had been executed he refused to continue to provide medical assistance for the Taliban and fled from Afghanistan.
The number of applications for asylum, the backlog and the approach taken by the Secretary of State to the timing of the consideration of such applications meant that the claimant's application was not considered for over four years. Indeed, he was not interviewed in connection with his asylum claim until 27 May 2004. During that period the policies applicable to citizens of Afghanistan whose applications for asylum had been rejected changed.
Between 1995 and 15 November 2001 the Secretary of State's policy was normally to grant a credible applicant for asylum from Afghanistan indeifinite leave to remain. Thereafter, normally four years exceptional leave to remain was granted to applicants from Afghanistan who did not meet the criteria for recognition as a refugee under the Refugee Convention. What the Secretary of State's Operational Guidance Note dated February 2003 described as a “long-standing” practice, was altered on 18 April 2002. Between that date and 11 July 2002 unsuccessful Afghanistani applicants for asylum were given exceptional leave to remain for 12 months. Thereafter, if their applications for asylum were unsuccessful, they were not granted exceptional leave to remain for any period.
It is common ground that individuals granted four years exceptional leave to remain under the policy in place until 18 April 2002 would normally be granted indefinite leave to remain in the United Kingdom upon the expiry of the four year period. This was stated in the Secretary of State's Operational Guidance Note. The Operational Guidance Note also stated there may be specific cases in which it would not be appropriate to grant indefinite leave. On practice under the policy, see also R (A, H & AH) v Secretary of State for the Home Department [2006] EWHC 526 (Admin) at [12] per Collins J and R (S) v Secretary of State for the Home Department [2007] EWCA Civ 546 at [12] and [63] per Carnwath and Moore-Bick LJJ.
These changes in the defendant's policy about unsuccessful Afghan applicants for refugee status occurred between the time the claimant applied for asylum on 25 September 1999 and 27 May 2004 when he was interviewed in connection with his application and thus well before the defendant's decision on 5 October 2004 to refuse his application for asylum. The defendant's decision was served on the claimant on 26 November 2004. The reason for the delay in dealing with the claimant's application was that his was one of the large number affected by the defendant's decision in 2002 to put applications for asylum received prior to 2001 “on hold” in order to meet the government's target that new applications for asylum should be decided within 60 days. An account of that decision and the policy for dealing with the large backlog of asylum claims is given in the judgments of Carnwath and Moore-Bick LJJ in R (S) v Secretary of State for the Home Department.
In 2003 the claimant began working within the Health Service. He was employed by the West Midlands South Strategic Health Authority in a number of capacities, including as a project manager in medical staffing. After the refusal of his application for asylum he appealed to the Tribunal. Before that appeal was considered, on 2 December 2004, he was served with Form IS151B; that is notice by the defendant that a decision to remove him had been taken.
On 22 October 2004 Davis J's decision in R (Rashid) v Secretary of State for the Home Department [2004] EWHC 2465 (Admin) was handed down. That case concerned decisions of the Secretary of State refusing Rashid asylum and an adjudicator dismissing his appeal made respectively in December 2001 and June 2002. The decisions were made without reference to a policy in force at the time of the decisions not to return Iraqi Kurds. That policy would have assisted Rashid and meant that he was entitled to asylum. But the policy only became known to his advisers in 2003. The decision as to Rashid's position was subsequently reconsidered in January 2004 after the withdrawal of the policy. The decision to refuse him asylum was...
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