Secretary of State for the Home Department v Danaie
| Jurisdiction | England & Wales |
| Judgment Date | 12 November 1998 |
| Date | 12 November 1998 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Before Lord Justice Simon Brown, Lord Justice Ward and Lord Justice Judge
Asylum - adjudicator's findings of fact - Home Secretary not entitled to disagree
When exercising his power to grant an asylum-seeker exceptional leave to enter, the Home Secretary was not entitled to disagree with a finding of fact by an independent adjudicator who had heard all relevant evidence, unless that finding was flawed or fresh evidence had become available.
The Court of Appeal so held in a reserved judgment when dismissing the appeal of the Secretary of State for the Home Department against the decision of Mr Justice Collins (The Times March 28, 1997; [1997] TLR 174) to quash a refusal of exceptional leave to enter and to remit the matter for the secretary of state's reconsideration.
Mr Nigel Pleming, QC and Mr Steven Kovats for the secretary of state; Mr Nicholas Blake, QC and Miss Stephanie Harrison for the applicant.
LORD JUSTICE SIMON BROWN said that the applicant, an Iranian, had applied for political asylum on the ground, inter alia, that he had been discovered in an adulterous relationship and was at risk of flogging or worse if he returned to Iran.
The Home Secretary regarded the story of adultery as a fabrication invented to substantiate a bogus asylum application and rejected the application. The asylum-seeker appealed.
The special adjudicator accepted his account of adultery but rejected a good deal of his evidence and dismissed the appeal. The applicant then applied to the Home Secretary for exceptional leave to enter. The Home Secretary rejected the application, stating that he continued to consider the adultery episode to be implausible and fabricated to substantiate the application.
The critical question raised by the appeal was the extent to which, in exercising his power to grant leave to enter, the secretary of state was in practice bound to accept findings made in the immigrant's favour by a special adjudicator on a related although failed asylum appeal.
His Lordship reviewed the relevant legislation and authorities. The Home Secretary had submitted, relying on, inter alia, Elhasoglu v Secretary of State for the Home Department ([1997] Imm AR 380), that the decision to grant leave was his alone, and provided he took into account the adjudicator's findings and explained why he disagreed with them, he was entitled to come to a...
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