JR finds statutory appeal framework unlawfully applied in Asylum claim

29 July 2014

In R (on the Application of Ali) v Secretary of State for the Home Department [2014] EWHC 2599 (Admin) (29 July 2014), Mr Ali sought judicial review of the Secretary of State’s (SSHD) unlawful failure to abide by the statutory appeal framework set out in the Nationality, Immigration and Asylum Act 2002. His Honour Judge Heaton QC, sitting as a Judge of the Upper Tribunal (Immigration and Asylum Chamber) quashed SSHD’s decision and ordered lawful reconsideration forthwith.

This claim began as a matter of simple delay. Mr Ali had been granted 4 years’ Exceptional Leave to Remain (ELR) in December 2002, and duly applied for Indefinite Leave to Remain (ILR) in November 2006. However, in 2003 the suspicion arose that Mr Ali had made an asylum claim in another identity based on an alleged fingerprint match. That claim had been rejected and the claimant was appeal rights exhausted. Despite the suspicion of dual identities, Mr Ali’s application for ILR was accepted as valid by the Immigration and Nationality Directorate, as it was then called.

No decision was forthcoming on Mr Ali’s application for ILR, despite several letters before action. In June 2010, the UK Border Agency advised Mr Ali that his case had been moved to the ‘Legacy’. In June 2013 he issued proceedings, six and a half years after making his application.

Mr Ali was granted permission on the papers. The SSHD purported to make a decision on the application in the form of a rejection of a fresh claim for asylum under paragraph 353 of the Immigration Rules. The rejection treated Mr Ali as a failed asylum seeker, a status only applicable to the other identity.

The Grounds were amended to specify that the decision was unlawful, since it did not follow the statutory framework for appeals set out in section 82 of the NIAA 2002. Mr Ali had made a valid application to vary his leave; the refusal to do so was manifestly an “immigration decision” under s82(2)(d) NIAA and attracted an in-country right of appeal.

The SSHD argued that the wording of the statute meant that there was only a right of appeal if the applicant was not switching to a different type of leave ie to vary “that” leave. In this case, Mr Ali was applying to vary his ELR to ILR and so, it was argued, there was no immigration decision. In any event, the State averred that the alleged fingerprint match entitled her to treat him as the other identity, to whom paragraph 353 would apply.

The Court held that the first argument was nonsense. On that construction, effectively no-one would be entitled to an in-country appeal under s82(2)(d) NIAA. There was simply no authority for that construction and it would represent a dramatic alteration of how the immigration system worked (at least prior to the Immigration Act 2014).

The second argument amounted to carte blanche to disregard statute where inconvenient. The statutory appeals framework clearly envisages cases of deception of the type alleged here, and is designed to test those allegations in the tribunal. In short, having made a valid application (which was not contested), Mr Ali was entitled to be treated lawfully by the Secretary of State. The purported decision under paragraph 353 was quashed and the SSHD ordered to determine it lawfully forthwith.

Mr Ali was represented by Garden Court North Chambers’ Jared Ficklin. Jared was instructed by Nadeem Ahmed and Frances Ledbury of Howells Solicitors, and was helpfully assisted by Chambers’ Joseph Markus.