R Sadeq Askaravi v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 05 March 2013 |
| Neutral Citation | [2013] EWHC 2023 (Admin) |
| Docket Number | CO/1706/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 March 2013 |
[2013] EWHC 2023 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Birmingham
Mr Justice Hickinbottom
CO/1706/2012
Miss S Naik (instructed by BHT Immigration Services) appeared on behalf of the Claimant
Mr S Najib (instructed by Treasury Solicitor) appeared on behalf of the Defendant
The Claimant Sadeq Askaravi is an Ahwazi Arab who is a national of Iran, where he was born on 26 September 1976.
His immigration history is protracted. In the Claimant's case, I do not say that pejoratively — none of the delays can be laid at his door — but the delay in determining his application for leave to remain is at the heart of this claim. He says that, but for that delay, the result of his application for leave to remain would have been different and more beneficial for him.
He arrived in the United Kingdom on 24 April 2004, and claimed asylum on the basis that he had been involved with the Ahwazi Arab People's Democratic Popular Front, graffitiing walls and distributing leaflets in Arabic encouraging Arabs to assert themselves against the Iranian government. He said that, in July 2004, he had been arrested whilst performing those activities; and had been detained and subject to ill-treatment for three days in the form of being kept in extreme heat, blindfolding and beatings, before his brother paid a bribe to obtain his release. That led to his flight to this country. Those essential facts were accepted by the adjudicator who heard his first appeal, and later tribunals have done nothing to undermine them.
That first application for asylum was refused on 26 August 2004, and his appeal was dismissed by an adjudicator on 13 January 2005. However, that was set aside following a reconsideration, and the appeal was reheard. Again, it was unsuccessful; but, again, that tribunal decision was itself set aside after the Court of Appeal had granted permission to appeal.
Following the production of further evidence from the Claimant's brother, and a hearing before Stadlen J in the Upper Tribunal, on 16 June 2010the Secretary of State issued a supplementary decision letter, which confirmed that the Claimant's application for leave was refused on the basis, amongst others, that his removal would be appropriate even taking into account the factors set out in paragraph 395C of the Immigration Rules. That decision letter formed the focus of another appeal hearing before the Upper Tribunal, before a tribunal comprising Senior Immigration Judges Perkin and McKee over which, entirely coincidentally, I presided. The Claimant's appeal was allowed on asylum and human rights grounds. That effectively entitled the Claimant to leave to remain.
On 11 November 2011, the Secretary of State granted the Claimant limited leave to remain as a refugee for 5 years. In this judicial review, with the permission of His Honour Judge Oliver-Jones QC sitting as judge of this court, the Claimant now challenges that decision on the basis that he ought to have been granted indefinite leave to remain.
Before I consider the grounds upon which the Claimant relies, it would be helpful briefly to deal with the policy and the mechanism under which the Secretary of State has dealt with asylum claims.
The grant of leave to remain in the United Kingdom, and the period of any such leave, rests solely within the discretionary power of the Secretary of State, exercised through Immigration Officers (section 4(1) of the Immigration Act 1971). Given the nature of that power and the area in which it is exercised, the Secretary of State has a wide margin of discretion in its exercise, which includes a broad discretion in how applications should be administered (see, e.g., AL (Serbia) v Secretary of State Home Department [2008] UKHL 42 at [8], per Lord Hope).
To enable some degree of consistency, decision-makers on behalf of the Secretary of State exercise their discretion in accordance with the Immigration Rules and guidance issued by the Secretary of State in the form of Asylum Policy Instructions. The Rules have been properly described as "statements of administrative policy: an indication of how at any particular time the Secretary of State will exercise her discretion with regard to the grant of leave to enter or remain", and which, "when promulgated, indicate how it is proposed to exercise the prerogative power of immigration control" Odelola v Secretary of State Home Department [2009] UKHL 25 at [35], per Lord Brown. The Secretary of State is not only entitled (see EF v Secretary of State for the Home Department [2010] EWCA Civ 203 at [27], per Richards LJ) but, it seems to me, bound to have regard to that policy and guidance when deciding matters relating to leave, including the length of any leave granted.
The Secretary of State, of course, must comply with her obligations under European Council Directive 2004/83/EC (the Qualification Directive), which requires a minimum of 3 years leave to be given to someone granted refugee status. Under the cross heading "Content of International Protection", article 20(3) and (4) provide as follows:
"3… Member States shall take into account the specific situation of vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons subjected to torture, rape or other serious forms of psychological physical or sexual violence.
4. Paragraph 3 shall apply only to persons found to have special needs after an individual evaluation of their situation."
As I have indicated, the Claimant claimed asylum in July 2004, and that application was refused the following month. At that time, the Secretary of State's policy was to grant those with refugee status indefinite leave to remain. However, by October 2006, that policy had changed, so that those given asylum would, save in the most exceptional circumstances, be granted not indefinite leave to remain but 5 years leave to remain.
Paragraph 339Q(i) of the Immigration Rules now provides as follows:
"The Secretary of State will issue to a person granted asylum in the United Kingdom a United Kingdom Residence Permit ("UKRP") as soon as possible after the grant of asylum. The UKRP will be valid for five years and renewable, unless compelling reasons of national security or public order otherwise require or where there are reasonable grounds for considering that the applicant is a danger to the security of the United Kingdom or having been convicted by a final judgment of a particularly serious crime, the applicant constitutes a danger to the community of the United Kingdom."
Similarly section 2.2 of the Asylum Policy Instruction provides as follows:
"The Qualification Directive specifies that 3 years' leave is the minimum period that can be given to those with refugee status. Five years' leave to remain would be a sufficient grant of leave save in the most exceptional of circumstances. However, in accordance with article 20, where in light of the specific situation of a vulnerable person with special needs a longer period of leave to remain is considered appropriate, the advice of senior case worker must be sought."
In terms of process, the Secretary of State has, over the last 15 years, faced very high volumes of applications for asylum. By 2006, there was a backlog of about half a million applications. To deal with this administrative problem, the Secretary of State set up a separate unit, the Casework Resolution Directorate, of nearly 1000 staff, which dealt only with the historic cases, whilst other units dealt with new applications as they came in.
Relatively, and indeed in absolute terms, that led to delays for those with historic applications. But given the wide discretion that the Secretary of State has in administering applications for leave to remain, the process was found to be lawful by Collins J in FH v Secretary of State for the Home Department [2007] EWHC 1571 (Admin).
The aspiration was to deal with the backlog of cases within 5 years, i.e. by July 2011. By that time, just under 500,000 cases had been concluded, by the grant of leave (172,000), removal (38,500) and/or closure of file for other reasons (usually because the applicant could not be found) (268,000). Of those granted leave, some were granted refugee status. For others, it was simply regarded as inappropriate to remove them from the United Kingdom in the light of the length of time they had been here and their other circumstances(i.e. the factors set out in paragraph 395C of the Immigration Rules) and, consequently, they had been granted leave on that basis. Of the group...
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In Reclaiming Motion By D.m. V. The Secretary Of State For The Homde Department For Judicial Review Of The Failure Of The Respondent To Grant The Petitioner Indefinite Leav Eto Remai
...illegitimate to draw a conclusion in respect of an individual case from general statistical evidence: R (Askaravi) v Home Secretary, [2013] EWHC 2023 (Admin), at paragraph 27, per Hickinbottom J. The existence of a range of results in individual cases indicates that no legitimate expectatio......