S v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Lewis,Lady Justice Elisabeth Laing |
| Judgment Date | 29 July 2022 |
| Neutral Citation | [2022] EWCA Civ 1092 |
| Docket Number | Case No: CA-2022-001264 |
| Court | Court of Appeal (Civil Division) |
| Year | 2022 |
[2022] EWCA Civ 1092
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Lewis
and
Lady Justice Elisabeth Laing
Case No: CA-2022-001264
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MRS JUSTICE LANG
Royal Courts of Justice
Strand, London, WC2A 2LL
Lisa Giovannetti QC and Hafsah Masood (instructed by the Treasury Solicitor) for the Appellants
Sonali Naik QC, Irena Sabic and Emma Fitzsimons (instructed by Wilsons Solicitors LLP) for the 1 st Respondent
Irena Sabic, David Sellwood and Maha Sardar (instructed by Wilsons Solicitors LLP) for the 2 nd Respondent
Hearing date: 28 July 2022
Approved Judgment
INTRODUCTION
This appeal arises in two claims for judicial review each brought by a former Afghan judge who is seeking leave to enter the UK. At the time that the proceedings were brought both were in Afghanistan, and it was common ground that they were at risk of persecution by the Taliban: accordingly their names were anonymised, and they are referred to as “S” and “AZ”. S has recently left Afghanistan and is now in Pakistan, but that does not affect the issues which we have to decide.
In both cases the Claimants claimed to be entitled to leave to enter in accordance with a joint policy of the Secretary of State for the Home Department and the Secretary of State for Defence known as the “Afghan Relocations and Assistance Policy” (“ARAP”); or in the alternative by the grant by the Home Secretary of “Leave Outside the Rules” (“LOTR”). Their claims were heard together by Lang J on 17 and 18 May this year. Her judgment was handed down on 9 June 2022. In summary:
(1) As regards the claim under ARAP, she held that a lawful decision had been made that neither Claimant fell within the terms of the policy.
(2) As regards the LOTR claim, the Home Secretary had taken the position that the Claimants were obliged to make their applications using a visa application form (“VAF”) made available on the Government website, and since they had not done so she had declined to make any decision. Lang J held that both had made valid applications and that the refusal to consider them was accordingly unlawful. In consequence the Secretary of State was obliged to proceed to a substantive decision.
On 28 June both Secretaries of State applied for permission to appeal against Lang J's decision on the LOTR claim. Strictly, only the Home Secretary was affected by that claim, and I doubt if the Defence Secretary should have been named as an Appellant. Although nothing turns on the point, in this judgment I will refer simply to “the Secretary of State”.
On 8 July Andrews LJ granted the Secretary of State permission to appeal against Lang J's order as regards the LOTR claim. She made it clear in her reasons that she had serious doubts whether the appeal had a real prospect of success, but she believed that there were compelling reasons to grant permission because nine other former Afghan judges have brought proceedings for judicial review raising similar issues, and a decision of this Court might assist in the disposal of their claims. She directed expedition. She declined to order a stay, with the result that the Secretary of State was obliged to proceed to a substantive decision.
That is the appeal before us. The Secretary of State has been represented by Ms Lisa Giovannetti QC leading Ms Hafsah Masood; Ms Sonali Naik QC, Ms Irena Sabic and Ms Emma Fitzsimons have appeared for S; and Ms Sabic, Mr David Sellwood and Ms Maha Sadar have appeared for AZ. As regards the issues before us the interests of S and AZ are identical and we were only addressed by Ms Naik, whose submissions Ms Sabic adopted. Because of the urgency of the matter we are delivering judgment the day following oral argument. That means that it has been necessary to be particularly focused and to confine ourselves to the issues that are dispositive of the appeal.
I have to say that the appeal was very ill-prepared, for which the primary responsibility must lie with the Secretary of State as Appellant. Many documents of central importance were omitted from the original bundles and had to be asked for by the Court in the course of its pre-reading, and others were only provided during the hearing, which made it difficult for the Court to get a good understanding of the various policies and procedures involved. Ms Giovannetti offered appropriate apologies and said that both she and Ms Masood had been ill and had been unable fully to supervise the preparation. The difficulties were in the event much mitigated by her clear and focused explanations of the points that remained obscure.
It is important to emphasise that the issues which we have to decide are very limited. There is no cross-appeal against the Judge's decision on the ARAP claim, and as regards the LOTR claim the only issue concerns the procedure by which an application for LOTR should have been made. In fact the Secretary of State has now made decisions, dated 22 July, in the cases of both Claimants, on what is described as an “in principle” basis, refusing LOTR, and we were told that the Claimants have sent pre-action protocol letters challenging their lawfulness; but those challenges are not before us.
Ms Naik submitted that the fact that the Secretary of State had made the decisions of 22 July meant that the present appeal, which was concerned with whether a proper application had been made in the first place, had become academic. I do not accept that. If we were to overturn the Judge's decision the effect would be that no proper application had indeed been made, and the Secretary of State would be entitled to withdraw her “in principle” decisions, which were only made because of the Judge's order.
For the purpose of the issues on this appeal, I need not set out any of the factual background about the events in Afghanistan which led to their position in which the Claimants find themselves. Nor need I set out their and their families' individual circumstances, though it is impossible not to feel deep sympathy for their predicament. For those interested, details can be found in the full and lucid judgment below ( [2022] EWHC 1402 (Admin)).
THE RELEVANT POLICIES AND PROCEDURES
Subject to some immaterial exceptions, non-UK nationals wishing to come to the UK require leave to enter: see section 3 of the Immigration Act 1971. The Secretary of State's practice governing the grant of leave to enter must be set out in the Immigration Rules – see R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33, [2012] 1 WLR 2208. In the case of a “visa national” (which includes nationals of Afghanistan) the grant of leave to enter under the Rules is by way of entry clearance granted overseas, which takes the form of a visa – see paragraphs 24–28 of the Rules.
Applications for a visa must typically be made online. The gov.uk website has a page entitled “Applying for a visa to come to the UK”. It identifies the most typical visa “routes”, referred to by the Judge as “the online visa routes”: these include, for example, visitor visas, student visas, various kinds of work visa and family visas. Under each there are hyperlinks which take a potential applicant to a page where they can find the necessary online application form: I will call these “the online VAFs”. The online VAFs have an obvious family resemblance as regards lay-out, basic personal information required and various boilerplate provisions, but they of course differ, according to the route chosen, in the particular questions which the applicant is required to answer. Each has an expandable free-text box where the applicant can enter “additional information”.
Subject to the power to waive referred to below, applicants for leave to enter are also required to “enrol their biometrics” – that is, to have their fingerprints and a photograph taken and supplied to the Home Office for registration. The relevant regulations are the Immigration (Biometric Registration) Regulations 2008. Enrolment takes place at authorised “Visa Application Centres” (“VACs”). There are VACs in most but not all overseas countries. Once an online application has been submitted the applicant is given a reference number and asked to complete further tasks. One of those is to identify the country in which they wish to enrol their biometrics; once they do so the system redirects them to the VAC provider in that country. The applicant will then have to attend that Centre to provide the biometrics. It is the Secretary of State's policy not to treat an application as complete, or to consider it, until biometrics have been provided, but it is common ground that she has power under the Regulations to depart from that policy, either by waiving the obligation to enrol biometrics altogether or to defer it to a later stage.
The Secretary of State retains a discretion to grant leave to enter in circumstances not provided for in the Rules, i.e. LOTR – R (Munir) v Secretary of State for the Home Department [2012] UKSC 32, [2012] 1 WLR 2192. The exercise of that power is the subject of formal Home Office guidance. Version 1 of “Leave outside the Immigration Rules” (“the Guidance”) was issued on 27 February 2018 and remained in force at the date of the decisions in the Claimants' cases. At para. 74 of her judgment the Judge sets out passages from the Guidance expounding the principles on which LOTR is granted, which emphasise its exceptional character and that it will typically only be granted “on compelling compassionate grounds”. Since on this appeal we are...
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