ZG (Afghanistan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan |
| Judgment Date | 09 July 2015 |
| Neutral Citation | [2015] EWCA Civ 866 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C4/2014/1211 |
| Date | 09 July 2015 |
[2015] EWCA Civ 866
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(MS D GILL)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Sullivan
C4/2014/1211
Ms S Naik (instructed by Duncan Lewis) appeared on behalf of the Applicant
This is a renewed application for permission to appeal against the order dated 6th November 2013 of Ms Gill, sitting as a Deputy Judge of the High Court, dismissing the appellant's applications for judicial review of the lawfulness of two decisions of the respondent in April and September 2012 to remove the appellant to Afghanistan. The facts are set out in Ms Gill's judgment [2013] EWHC 3365 (Admin).
In summary, the appellant arrived in the United Kingdom as an unaccompanied 16-year-old on 31st October 2006. He claimed asylum shortly thereafter. His claim was refused on 3rd January 2007 but he had no right of appeal against that decision because he was given discretionary leave to remain until December 2007. He made a second claim for asylum in February 2008, a couple of months out of time. That second claim for asylum was refused. He appealed against that refusal and his appeal was dismissed on 13th July 2010.
So the position is that by the time the removal decisions, which are the subject of the challenges in these two claims for judicial review, were made in April and September 2012, the time for any appeal against and/or judicial review of the decisions in 2007 and 2010 had long expired.
The basis of the claims for judicial review, as they were explained in the claim forms, was that the 2007 refusal of asylum was unlawful because the appellant was an unaccompanied child who could not be expected to relocate to Kabul as an unaccompanied minor and in any event because it had been accepted that the appellant's father had been killed by the Taliban. So it was said that the Secretary of State's failure to deal lawfully with the appellant's asylum claims in 2007 and 2010 meant that there was historic injustice and, it was said in the claim form:
"He [that is the appellant] is entitled to corrective leave to remedy the historic errors by the Secretary of State."
In the light of the recent decision of the Supreme Court in TN and MA (Afghanistan) v Secretary of State for the Home Department [2015] UKSC 40, Ms Naik very properly accepts that that submission, that is to say that the appellant is entitled to some form of corrective remedy, if there has been historic injustice is no longer pursued. Instead, Ms Naik now submits, principally through her renewal statement, that the question now is whether the matter should be remitted to the Secretary of State so that she can consider the exercise of her discretion in the light of the past history of this case. Ms Naik submits that TN and MA and in particular paragraph 72 of Lord Toulson's judgment leaves open the...
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