R Zargul Safi v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeSir Stephen Silber
Judgment Date22 January 2015
Neutral Citation[2015] EWHC 95 (Admin)
Docket NumberCase No: CO/8907/2014
Date22 January 2015

[2015] EWHC 95 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Sir Stephen Silber

(Sitting as a High Court Judge)

Case No: CO/8907/2014

Between:
The Queen on the Application of Zargul Safi
Claimant
and
Secretary of State for the Home Department
Defendant

Sonali Naik (instructed by Duncan Lewis Solicitors) for the Claimant

Catherine Rowlands (instructed by the Treasury Solicitor) for the Defendant

Hearing dates: 4 th December 2014

Further written submissions filed on 8 th and 13 th December 2014

Sir Stephen Silber

Introduction

1

Zargul Safi ("the Claimant") seeks to quash the decisions of the Secretary of State for the Home Department ("the Secretary of State") dated 22 May 2012 ("the 2012 Decision") and 6 February 2014 ("the 2014 Decision") refusing the Claimant leave to remain. Permission was granted by Singh J in respect of the challenge to the 2012 Decision. There was in essence a rolled-up hearing in front of me in respect of the 2014 Decision, which I heard at the same time as when I heard the substantive hearing in respect of the 2012 Decision.

2

The Claimant, who was born in Peshawar in Pakistan on 1 April 1983, arrived in the United Kingdom on 18 February 2002, and he claimed asylum. His asylum claim was based upon his fear of return to Afghanistan because of his race. On 10 April 2002, the Secretary of State wrote to the Claimant refusing his claim for asylum ("the 2002 refusal letter") on the basis that he was not an Afghan. It was stated that directions would be given for his removal to Afghanistan as that was the country of which he claimed to be a national.

3

It is significant that at the time of the 2002 refusal letter, there was in force an operative policy that meant that all Afghan nationals who had made unsuccessful claims for asylum in this country were normally entitled to Exceptional Leave to Remain in the United Kingdom ("ELR") for four years on the basis that they could not be safely returned to Afghanistan. On 18 April 2002, the operative policy was amended so that Afghan nationals whose claims to asylum had been refused were normally only entitled to one year's ELR. On 11 July 2002, the policy was withdrawn altogether and unsuccessful applicants were not automatically granted ELR for any period. The pre-11July 2002 policy was not applied to the Claimant at the time of the 2002 refusal letter as the Secretary of State had concluded the Claimant was not an Afghan national, because at his screening interview he was unable to provide accurate information in respect of the majority of questions he was asked relating to his knowledge of Afghanistan.

4

The Claimant appealed against the decision of the Secretary of State contained in the 2002 refusal letter, but his appeal was dismissed on 24 October 2002. The Immigration Judge in his Determination found the appellant to be "utterly implausible, [and] incredible", and he rejected the Claimant's assertion of his fear of persecution on his return to Afghanistan. Significantly, the Immigration Judge held that the Claimant was an Afghani national and not a Pakistani national having been born in a refugee camp to an Afghan family in Peshawar with many other thousands of Afghans who were living in Pakistan. The Immigration Judge concluded by stating that:

"this appellant has never lived in Afghanistan. He has simply come through the well-known assistance of an agent from Peshawar."

5

The Claimant sought permission to appeal against that decision, but he was refused permission on 26 November 2002. No enforcement measures to remove the Claimant from the United Kingdom were taken. The Claimant made various further representations on the basis that he had a "fresh claim" under paragraph 353 of the Immigration Rules on 25 June 2008 1.

6

In a letter dated 11 November 2008, the Secretary of State refused to accept the representations as constituting a "fresh claim". His erstwhile solicitors made further representations and the Claimant made a "fresh claim" for asylum and a human rights claim on 20 July 2010. On 1 October 2010, it was determined by the Secretary of State that having considered all the evidence available, including evidence previously considered, and all further submissions made on behalf of the Claimant that these matters did not constitute a "fresh claim" for asylum and human rights. It concluded that the Claimant had no basis to stay in the United Kingdom and that he should make arrangements to leave the United Kingdom without delay. The Claimant was also informed by a letter dated 1 February 2001 that he had no basis to stay in the United Kingdom and that he should leave the United Kingdom "without delay". His solicitors acknowledged the letter on 3 February 2011.

7

After further representations were made by the Claimant including a Pre-Action Protocol letter, the 2012 Decision was made refusing to grant the claimant leave to remain.

8

The present claim was issued on the 21 August 2012 challenging the 2012 Decision. Following the grant of permission in respect of that claim by Singh J on 5 June 2013, the Claimant sought to amend his grounds on 27 June 2013. By a letter dated 8 July 2013 addressed to the Claimant's solicitors, the Secretary of State stated that she would withdraw her decision of 1 October 2010 and the 2012 Decision and that she would then reconsider the Claimant's further representations on the terms of a draft consent order, which was attached to the letter sent to the Claimant's solicitors for approval, but they did not agree to that letter as the Claimant was seeking indefinite leave to remain ("ILR").

9

In a letter to the Claimant's solicitors of 21 August 2013, the Secretary of State offered to place the Claimant in the position in which he would have been had he been successful in his applications and that would be by quashing the decisions already made to refuse leave, and treating the submissions as a valid fresh claim under paragraph 353 of the Immigration Rules. The Claimant did not respond to this and on 6 February 2014, the Secretary of State issued the 2014 Decision in which it was explained that the Claimant was not entitled to a grant of leave to remain in the United Kingdom. It is common ground that these decisions are still relied on by the Secretary of State as showing why the Claimant has no leave to remain and they are the subject of the present applications.

The issues

10

When giving permission to the Claimant to pursue his claim in respect of 2012 Decision, Singh J explained that the issue on which he granted permission was:

"whether the Secretary of State is right to submit that in a case of this kind what is needed is the stringent threshold of conspicuous unfairness, as summarised in the decision of the Court of Appeal in SH v Q2 [2009] EWCA Civ 324 which summarises earlier authorities of the court, and particularly in the judgment of Laws LJ 3 at paragraphs 44 [to] 49.. or whether the claimant is right, as I consider to be at least arguable, that is may suffice, in a case such as this that a failure to apply a policy which admittedly was enforced at the relevant time, and was not applied by mistake, is something which ought to have weighed in the balance..".

11

It is agreed that this issue also has to be considered in relation to the 2014 Decision in respect of which, as I have explained, I will have to decide if permission should be granted. Other grounds of challenge had been mentioned by the Claimant, but the only one on which leave was granted was in respect of the 2012 Decision in the form stated by Singh J. This means that I do not have to consider any allegation that there was a "fresh claim" as specified in paragraph 353 of the Immigration Rules. Indeed such a claim was not contained or referred to in the Claimant's grounds. The 2012 Decision incorporates by reference the decision of 1 October 2010, which considered but rejected the contention that the Claimant's representations constituted a "fresh claim". As I will explain in paragraphs 90ff below, even if such an allegation had been included, it would have had to be rejected.

12

In her skeleton argument, Ms Sonali Naik, counsel for the Claimant, seeks to challenge the decision of 1 October 2010, but as she explained in paragraph 1 of that document, "the claim originated as a challenge to the [2012 Decision]" and paragraph 1 of the Grounds states that "this is a challenge to the [2012 Decision]". The amended grounds do not change that focus and were served after permission was granted. In any event, even if the challenges to the decision of 1 October 2010 or any other decision made prior to the 2012 Decision could be pursued, it would not assist the Claimant for four reasons.

13

First, permission has not been granted or sought in order to pursue such a challenge to the decision of 1 October 2010. Second, any application for permission would have to be refused, as it would not have been made promptly or within the prescribed three-month period. Third, such a challenge would fail on its merits for the reasons, which I have set out in paragraphs 59ff below in relation to the 2012 and the 2014 Decisions. Fourth, even if the decision of 1 October 2010 could be successfully challenged, this would not assist the Claimant who would still have to successfully challenge the 2012 Decision and the 2014 Decision as while they remain in force and not quashed, they constitute barriers to him obtaining leave to remain.

14

Ms Naik contends that the Secretary of State acted unlawfully or unreasonably when she made the...

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