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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Safi, R (on the application of) v Secretary of State for the Home Department [2015] EWHC 95 (Admin) (22 January 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/95.html Cite as: [2015] EWHC 95 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		22nd January 2015

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 On 11 July 2002, the policy was withdrawn altogether and unsuccessful applicants were not automatically granted ELR for any period.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 Q^[2] [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 2012 and 2014 Decisions without taking into consideration the facts that:

i) On 10 April 2002 at the time of the 2002 refusal letter, the Claimant was an Afghan and so he was therefore entitled to 4 years ELR under the Afghan policy then in force in favour of Afghan nationals who had been refused asylum as the Claimant had;

ii) The reason why he was not granted that period of ELR or any period was because the Secretary of State made a mistake in failing to appreciate that at the date of the decision the Claimant was an Afghan national;

iii) By the time, the Secretary of State appreciated that the Claimant was an Afghan national, he was not entitled to any period of ELR because the policy had changed as I explained in paragraph 3 above; and

iv) In consequence the 2012 Decision and the 2014 Decision must be quashed because the Secretary of State had failed to take into account a material consideration, namely the error in failing to appreciate the true position. This has caused serious injustice to the Claimant as it has deprived him of the rights not merely to remain in this country but also to work here and to collect benefits as I explain in paragraph 18 below. That error was that the Claimant was an Afghan as the Immigration Judge later concluded to be the true position and in consequence he was entitled at the time of the 2002 refusal letter to 4 years ELR.

15. Ms Catherine Rowlands, counsel for the Secretary of State, accepts that there was a mistake in the 2002 refusal letter because the Secretary of State did not consider that the Claimant was an Afghan at that time, but she contends that this was not an error of law, but fatally for the Claimant's case, it was an error of fact for which the Claimant was responsible by failing to give the proper answers to the questions relating to his knowledge of Afghanistan as explained in the 2002 refusal letter. Her case is that the Claimant might have had the benefit of a policy giving him 4 years ELR, but he would not definitely have had the benefit of it as he came from Pakistan where he had spent his life and where his family lived and was a place to which he could have been returned. Ms Rowlands contends that it was not unlawful for the Secretary of State to make this sort of mistake, as it was the Claimant's failure to provide the requisite information about Afghanistan that had led to that mistake being made.
16. In any event, Ms Rowlands contends that at all times when the policy applied prior to its repeal, there was a valid and lawful decision that the Claimant was not an Afghan. She seeks to fortify her case by contending that the underlying reason for giving all Afghan failed asylum-seekers ELR- namely the risks on return to Afghanistan- was no longer valid when the 2012 and 2014 Decisions were taken. Ms Rowlands submits that in any event, the court should not quash the 2012 and 2014 Decisions because this can only be done if a failure to do so would lead to an extreme "injustice", and this did not arise in the case. In any event, she contends that the Claimant was obliged to bring his case promptly, but that he had failed to do so and that means that his claim must be dismissed. Ms Rowlands contends that the proper remedy for the Claimant is to make a fresh application based on his Article 8 rights.
17. The rules for deciding how the Secretary of State should consider applications for leave to remain are set out in the Immigration Rules and during the decision-making period in question, these provisions changed. Those rules in force prior to 13 February 2012 were contained in paragraph 395C of the Rules, while those relevant to the later period were set out in paragraph 353B of the Rules.
18. All these submissions have to be considered against the background that it is common ground that although the Claimant has remained in England since the refusal of his asylum claim on 10 April 2002, he has been prejudiced by the fact that he has not had ELR or ILR while remaining here. That status would have conferred on him a number of important benefits, which he has not enjoyed because he did not receive ELR or any leave to remain. Ms Naik points out that the Claimant was entitled to receive, and did receive, support from the National Asylum Support Service until the conclusion of his asylum appeal. At present and since his asylum appeal was refused, he has been and remains ineligible and so unable to work or to claim benefits. The Claimant in a witness statement has explained how he has been prejudiced by not having ELR or ILR. He contrasts his position with that of an Afghan friend who was correctly identified as an Afghan and so was entitled to 4 years ELR before receiving his ILR and eventually his British citizenship.

The 2012 and 2014 Decisions

19. The 2012 Decision was sent in response to a letter before action from the Claimant's present solicitors in which it was explained that all the relevant factors in the Claimant's favour had been considered and refused in the decision letter of 1 October 2010, and in consequence the Claimant had "no basis of stay in the United Kingdom". The letter of 1 October 2010 explained that the Claimant did not qualify for asylum or limited leave to remain and referred to the matters considered relevant and which were set out in a document attached to that letter and which was entitled "Consideration of Submissions".
20. In essence, that document dealt with the Claimant's case that he had a genuine fear of returning to Afghanistan, that he had developed a private life in the United Kingdom, that his removal would "breach the case laws" and that his removal from the United Kingdom would constitute a breach of his rights set out in Articles 2, 3 and 8 of the European Convention on Human Rights. Nothing is stated in that letter which shows consideration was given to the fact that if the Secretary of State had known and accepted (as she later did) that the Claimant was an Afghan, he would then probably have been entitled to ILR or ELR when his asylum claim was refused on 10 April 2002.
21. The February 2014 Decision was contained in a letter sent by the Secretary of State in response to the application for judicial review. It stated in the first paragraph that it was understood that that application had been made in relation to the Court of Appeal judgment in R (S) v Secretary of State [2007] EWCA Civ 546 where an individual appears to have lost the benefit of a 4 year country specific ELR policy unfairly "as a result of delay in deciding his case" (emphasis not in the original). The letter proceeded to set out details of the Claimant's asylum history in which it was explained in the reasons for refusal that the Secretary of State did not consider the Claimant to be an Afghan national because:

"you were unable to provide accurate information in respect of the majority of questions you were asked regarding your knowledge of Afghanistan at your Screening Interview".

22. The letter proceeded to quote from the decision of the Immigration Judge including the finding the appellant was an Afghan "as he provided evidence in the form of country knowledge at appeal".
23. The letter concluded by stating as at the date of the dismissal of the Claimant's appeal on 24 October 2002 (with emphasis added) that:

"At this time, the above noted Afghan country policies had been discontinued, as such your client was not entitled to be granted leave to remain. Moreover, it is considered your client did not lose the benefit of the Afghan country specific ELR policy as a result of any delay in deciding his asylum claim".

24. I agree with Ms Naik that this decision letter focused on the issue of whether there had been delay by the Secretary of State in both the opening and final paragraphs. Significantly it did not state that any weight had been given to the facts, that if the Secretary of State had appreciated that at the time of the decision on 10 April 2002 that the Claimant was an Afghan, he would or ought to have received ELR and the consequential benefits to which I have referred.

The Authorities

25. Much of the submissions have centred on what guidance there is in the authorities on what weight, if any, the Secretary of State should have given when making the 2012 and 2014 Decisions to the fact that if her predecessor had appreciated that the Claimant was an Afghan at the time of the decision on 10 April 2002, he would have been given ELR. It was explained in the decision in Ravichandran v Secretary of State for the Home Department [1996] Imm AR 97 that the basic rule was that specialist tribunals dealing with asylum appeals had to consider them on the basis of the facts and circumstances prevailing at the time of the hearing. The legal issue arising in this case is to what extent that basic rule has altered, and, in particular, whether it had changed to such an extent that the Secretary of State was obliged to have considered that if her predecessor had appreciated that the Claimant was an Afghan, he would definitely or would probably have given the Claimant ELR when considering his application for asylum on and before 10 April 2002.
26. In Rashid v Secretary of State for Home Department [2005] INLR 550, the Court of Appeal had to consider a challenge to a decision to refuse the Respondent asylum and ILR. He was an Iraqi Kurd, who had been refused asylum in December 2001 notwithstanding that at all times between his arrival in the United Kingdom and March 2003, he should have been granted asylum according to the Secretary of State's policy for dealing with Iraqi Kurds. That policy was that the possibility of internal relocation in the Kurdish Autonomous Area of Iraq would not be relied on by the Secretary of State as a reason to refuse refugee status. The Respondent's advisers only became aware of the policy after it had been terminated. When they sought to take advantage of it, the Secretary of State refused to allow then to do so even though there was no satisfactory reason as to why the policy had not been applied to him
27. The Court of Appeal quashed the decision with Dyson LJ referring in paragraph 52 to "the conspicuous unfairness in this case". In reaching that decision, the Court of Appeal rejected a submission made on behalf of the Secretary of State that Ravichandran was fatal to her claim because at the time of hearing, there was no longer a need for protection.
28. In AA (Afghanistan) v Secretary of State for Home Department [2007] EWHC Civ 12, errors of the Adjudicator and the AIT coupled with the ensuing passage of time meant that the Claimants had lost the potential benefit of the current policy on unaccompanied minors, which was of an in-country right of appeal. Keene LJ explained that the Claimant had lost "the advantage of an independent judicial consideration of [the merits] as they stood at the time" (paragraph 22). Waller LJ considered that although the appellant was no longer a minor, "the loss of potential advantages (procedural or substantive) is a factor which should be taken into account by the Secretary of State" (paragraph 60). Although it was sceptical about the strength of the original claim, the Court granted relief in the form of a direction under section 87 of the Nationality, Immigration and Asylum Act 2002 requiring the Secretary of State to consider whether, in the light of the judgments of the Court, and of any further representations made by the appellant within 21 days, a period of leave to remain should be granted and, if so, for how long.
29. Pausing at this stage, I agree with Ms Naik that the reasoning in this case shows that the courts are reluctant to find that an error by the Secretary of State in not applying the correct immigration policy should not be "dismissed lightly" as immaterial. In that case, the focus of the Court was not on the points made by Ms Rowlands in this case which are first, that there was a mistake of fact not of law, and second, that the Claimant was responsible for his failure at the screening interview to answer questions relating to Afghanistan which was the reason why the Secretary of State found him not to be an Afghan.
30. In R (S) v Secretary of State for Home Department [2007] INLR 450, the respondent, who was an Afghan National, claimed asylum at a time when the Secretary of State had a policy of granting 4 years ELR to failed Afghan asylum seekers which would ordinarily have led to him receiving that right. In this case, however, because of a Public Service agreement made with HM Treasury, the Home Office put a large number of cases on hold and the asylum claim was not considered until March 2004 by which time the policy of granting 4 years ELR had been withdrawn. The respondent successfully challenged the decision to refuse him discretionary leave to remain in the United Kingdom.
31. The Secretary of State appealed and the Court of Appeal held unanimously that the Secretary of State should determine afresh the application for leave because it had not been considered properly as the Secretary of State had fettered his discretion to consider the case properly. Carnwath LJ explained that the intervention of a Court in Rashid:

"47…respected the principle that the Secretary of State's decision should be made on the basis of present circumstances. But it recognised that those circumstances might include the present need to remedy injustice caused by past illegality".

32. He concluded by explaining that:

"54…The issue is not so much whether the unfairness is obvious or conspicuous, but whether it amounts to illegality which on reconsideration the Department has the power to correct. If it has such power, and there are no countervailing considerations, it should do so. Following Rashid the court has power to order reconsideration on the proper basis".

33. Moore-Bick LJ stated in respect of Rashid (supra) that he agreed with Carnwath LJ that:

"69…the key to a proper understanding of the decision lies in the court's recognition that the Secretary of State had power to grant relief of a kind that would remedy the earlier injustice and that his failure to take such matters into account when making his decision laid it open to challenge."

34. He added that :

"72...Like Carnwath L.J., I do not find it altogether satisfactory to approach the question simply as if the court were being invited to grant a remedy in respect of an unlawful act committed some years earlier because the question that ultimately has to be decided on this appeal is not whether that earlier decision was unlawful but whether the later decisions were unlawful. However, I agree that the Secretary of State's earlier unlawful decision, its consequences for the claimant and the injustice that would be caused to him if he were to be removed from this country are factors that have to be taken into consideration when deciding whether to grant discretionary leave to remain."

35. Not surprisingly Ms Naik attaches great importance to the statement that when there has been an unlawful decision and a new decision was to be taken, the new decision had to take into account "previous injustice". She contends that this shows that the Secretary of State should have taken into consideration when making the 2002 and 2004 Decisions the fact that the Claimant was an Afghan and was so entitled to ILR when his application for permission was refused. Ms Rowlands disputes that there has been any previous injustice or that the 2002 refusal was "illegal" as it was a consequence of the failure of the Claimant to give answers to questions on Afghanistan, which would have shown that he was an Afghan.
36. In R (S, H and Q) v Secretary of State for Home Department [2009] EWCA Civ 142, the Court of Appeal had to consider challenges to decisions of the Secretary of State not to grant ELR and ILR under policies which were no longer applied to them for various reasons. Ms Rowlands contends that the case for the Secretary of State is underpinned by the approach of the Court of Appeal and, in particular, the judgment of Goldring LJ, who gave the only reasoned judgment of the Court of Appeal, which also comprised of Laws and Arden LJJ. His reasoning was that:

(a) "If the Secretary of State takes a decision after the policy in question has been withdrawn, the policy does not apply"(paragraph 44);

(b) "Second, it seems to me, as it did to the court in (S), the court's intervention in Rashid was justified by a two stage approach. Firstly, in refusing ILR when he reconsidered the case, the Secretary of State failed to have regard to a legally relevant factor, namely the correction of injustice caused by the previous unlawful failure to apply the policy. Secondly, the "extreme" nature of the injustice in that case, meant that there was only one way in which the Secretary of State could reasonably have exercised his discretion. He was bound to grant ILR"(paragraph 45);

(c) "Third, I do not accept Mr. Gill's submission that it would be sufficient effectively to oblige the Secretary of State to apply the policy after it has been withdrawn where the failure to apply it during its currency was lawful; where, for example, there was historically administrative delay or (possibly very serious and widespread) administrative inefficiency which did not amount to unlawfulness in the way I have defined it. The whole basis of applications such as the present is a previous unlawful failure to apply the policy. I cannot see how a previous lawful failure to apply the policy can give rise to a subsequent intervention by the court on the basis that the policy having been withdrawn, the Secretary of State should have taken it into account and having done so, was bound to grant ILR. There can moreover be no question of intervention by the court on the basis of a generalised and unfocussed idea of fairness; or by consideration of what subsequently may have happened to the individual in question and categorised in broad terms such as prejudice, loss and detriment"(paragraph 46);

(d) "Fifth, where the Secretary of State has sufficiently had regard to that past illegality and any injustice, she will be entitled in the exercise of her discretion to refuse ILR. The court will only intervene in the extreme case, where fairness dictates that no reasonable Secretary of State could have done other than grant ILR. It follows the court will not intervene unless the decision of the Secretary of State was conspicuously unfair" (paragraph 48);

(e) "Sixth, I accept Mr. Jay's submission that in each case two questions fall to be answered. Firstly, was the benefit of the policy unlawfully withheld when the initial asylum claim was considered? If not, (wholly exceptional circumstances possibly apart), no question of the court's intervention arises. Secondly, if so, did it give rise to such conspicuous unfairness that it may be said the Secretary of State erred in law in failing to take it into account as being effectively determinative of the later application for leave to remain (with the result that the court would be justified in making a direction to the Secretary of State to reconsider an otherwise lawful decision with the expectation that leave should be granted)? (paragraph 49); and

(f) "Seventh, the court will not intervene unless proceedings have been brought promptly following a decision by the Secretary of State not to grant asylum. For in such circumstances it will be very difficult indeed to show conspicuous unfairness. Whether such proceedings may be categorised as an abuse of process does not seem to me to matter."

37. Singh J referred to some of these passages when he gave permission, as I explained in paragraph 10 above. Ms Rowlands contends first that the policy of granting ELR to failed Afghan asylum-seekers was not unlawfully withheld from the Claimant in the light of his failure to answer adequately the questions he was asked about Afghanistan by the entry officer, and second, that in any event the failure to apply it did not give rise to "conspicuous unfairness". Ms Naik disputes both those submissions.
38. In FH (Bangaladesh) v Secretary of State for Home Department [2009] EWCA Civ 385, the Claimant had applied for ILR on the basis of long residence but his claim was rejected. The immigration judge had held that an extra-statutory and highly material concession had been withdrawn but this was incorrect and so the decision was unlawful. There was a delay in considering the Claimant's case, which Maurice Kay LJ described as "culpable and undue" and during that period, the concession was withdrawn. The Court of Appeal remitted the case for further consideration because if there had been a timely consideration of the Claimant's application taking account of the concession, then there might have been a different outcome of his application.
39. Both AA (Afghanistan) and R(S, H and Q) were considered by the Court of Appeal in SL(Vietnam) v Secretary of State for Home Department [2010] EWCA Civ 225, which was a case in which a Vietnamese national, who arrived as a minor was refused asylum and was not given the benefit of the Secretary of State's minors' policy under which he would have received ELR. The case was concerned with a challenge to a deportation decision, but the injustice was caused by a previous unlawful failure to apply the correct policy in relation to the asylum claim, even though the asylum claim was no longer in issue. The appeal was allowed by the majority with Patten LJ dissenting and the majority reached their decision on the basis that:

(a) "…the Secretary of State should take into account the effect of past failures to apply his own policy and that the Secretary of State should also bear in mind the need to correct injustice" (per Jackson LJ at paragraph 42); and that

(b) "in the words of Ward LJ "for me the crucial issue is whether this failure of policy is a relevant factor which ought to have been weighed in the balance by the Secretary of State when considering whether it was conducive to the public good to send this man back to Vietnam" (paragraph 60) and if it was relevant "that would render the decision unlawful unless the error was wholly immaterial" (paragraph 61).

40. In a case, which was also entitled AA (Afghanistan) v Secretary of State for Home Department [2012] EWCA Civ 1643, the appellant, who was another Afghan failed asylum-seeker, was a minor at the date of his assessment although he was assessed as not being a minor and so deprived of the rights he would have enjoyed as a minor. When the appellant sought to have his case reconsidered, this was refused but the Court of Appeal held that the decision had to be quashed.
41. Significantly, Court specifically referred to and cited with apparent approval the decision in R(S, H and Q) and it also held in the words of Laws LJ giving the only reasoned judgment of the Court that:

(a) "17. Bearing in mind Carnwath LJ's strictures relating to the Rashid decision, and Goldring LJ's summation in S [2009] of the correct approach to the question when should the Ravichandran principle be departed from, I consider that the essence of the matter amounts to this. Where it is said that past events would make it unfair for the case in hand to be decided on the conventional Ravichandran approach, a reasonable Secretary of State may have to consider whether she should take account of those events, and in light of them decide the case in such a way as to avoid conspicuous unfairness to the claimant"; and that

(b) "18. This is, in my judgment, a Wednesbury issue …would it be so unfair to proceed without regard to the factors relied on that no reasonable Secretary of State would take such a course? This must be the nature of the question, since any more intrusive approach would involve the court to an extent in the direction of immigration policy, and that would be illegitimate. I conceive this approach to be in line in Rashid as it was understood in S [2007], and with Goldring LJ's conclusions in S [2009]. There is nothing in KA [2012] which tends to contradict it".

42. In KA (Afghanistan) and Others v Secretary of State [2012] EWCA Civ 1014, the Court of Appeal had to deal with a number of cases in which the Secretary of State had failed to comply with her duty to endeavour to trace the families of the children from Afghanistan. It set out some relevant principles including that their failure to discharge that duty might be relevant to the judicial decision of an asylum or humanitarian protection claim. The Court after setting out the relevant principles adjourned the hearing of the outstanding appeals.
43. They were subsequently considered by a differently constituted court in EU (Afghanistan) and Others v Secretary of State [2013] EWCA Civ 32 in which fact-sensitive decisions were reached on the outstanding cases. There was also strong criticism of the rationale of the Rashid decision, but I am bound by that decision.

The Principles Applicable when a Second Immigration Decision has to be taken when the Policy has changed since the flawed First Immigration Decision was taken.

44. In determining this application, the starting point is the general principle that administrative decisions should be based on "the legal and factual context prevailing at the time the [subsequent] decision is made" (per Laws LJ in Nadarajah paragraph 46): see also Ravichandran [1995] AR 97 and R (S) per Carnwath LJ at paragraphs 32 and 35). As I have sought to explain, the authorities establish that the principle in Ravichandran may be displaced or varied in certain circumstances as is shown by cases such as R (S) (supra) and I will now endeavour to identify and define those circumstances.
45. First, in deciding how the Secretary of State's subsequent second immigration decision "had to be made on the basis of present circumstances", it is settled law that there are cases in which "those circumstances might include the present need to remedy injustice caused by past illegality." (per Carnwath LJ in R (S) at paragraph 47 with emphasis added).^[4] A similar approach was adopted by Moore-Bick LJ in R (S) at paragraph 72 and by Jackson LJ in SL (Vietnam) v Secretary of State for the Home Department (supra) when he explained, with emphasis added, at paragraph 33 that :

"Past prejudice suffered in consequence of such a decision may be a relevant factor to take into account, even when that policy has ceased to be applicable."

46. Second, in deciding if the Ravichandran principle can be displaced in a particular case, there has to be illegality in the original decision caused by a failure to apply the correct policy or some other legal requirement. Carnwath LJ explained in R (S) at paragraph 34, that there are logically two distinct questions which have to be answered and they are:

"(i) Was the original decision legally flawed because of a failure to apply the correct policy; and if so

(ii) What is the relevance (if any) of that finding to the legality, or the court's powers in respect, of a subsequent decision, made when the policy is no longer in force?"^[5]

47. So before the principle in Ravichandran can be displaced or varied, it is necessary to identify a policy or some other legal requirement, which was not followed. Indeed, this is shown by the cases in which that principle has been displaced, such as Rashid, the 2007 AA decision, S, FH and, as I will explain, the case of Q who was one of the Claimants in R (S, H and Q).
48. Third, as I have explained, there was discretion on the part of the second decision-maker in deciding whether to take into account (and, if so how) the alleged injustice caused by the previous illegality in the first decision. Laws LJ in the 2012 case of AA (Afghanistan) considered the basis of challenge to any decision of the second decision maker not to take into account such an alleged injustice had to be on Wednesbury grounds. So the question for the courts is:

"18…would it be so unfair to proceed without regard to the factors relied on that no reasonable Secretary of State would take such a course?"

49. That approach, as Laws LJ has explained, prevents courts becoming involved in immigration policy. A not dissimilar approach based on Wednesbury lines was advocated by Goldring LJ giving the judgment of the Court of Appeal R (S, H and Q) when, as I have explained in paragraph 36 (b), he referred in paragraph 45 to the need to consider nature of the injustice in that case, meant that:

"there was only one way in which the Secretary of State could reasonably have exercised his discretion".

50. Fourth, in determining whether the second immigration decision should be taken not on the basis of the law and factual context then applicable, but also in the light of the law and factual context in force when the original decision was taken, it is not necessary for there to be a finding that the original decision was "conspicuously unfair so as to amount to an abuse of power"; or at least not if the terms "conspicuous unfairness" or "abuse of power" represents a particularly egregious form of conduct. Conspicuous unfairness in relation to the original decision also covers Wednesbury unreasonableness or a failure to follow policy. There is no requirement for an extreme case of misconduct as appears from the reasoning in R (S).
51. Indeed, Carnwath LJ did not consider that conspicuous unfairness was the threshold required before the Court intervened when he stated (with emphasis added) at paragraph 54 in R (S) "the issue is not so much whether the unfairness is obvious or conspicuous, but whether it amounts to illegality which on consideration the Department has power to correct." Moore-Bick LJ in R (S) at paragraphs 71 explained (with emphasis added) that the basis of the Court's intervention as being that the " Court's duty in upholding the rule of law in this context is to identify and set aside administrative acts and decisions which, for whatever reasons are unlawful". Lightman J agreed with both judgments. It also noteworthy that in SL (Vietnam), Jackson LJ explained (with emphasis added) at paragraph 33 that an earlier decision "may be unlawful if it is reached in disregard of a relevant policy." Again, in R (S, H and Q), there were many references to illegality as being required before the Court could intervene.
52. What is important is that the first decision was not merely wrong but unlawful or illegal. As I will explain in paragraphs 62 ff in the case of Q which was one of the cases dealt with by the Court of Appeal in R (S, H and Q), Goldring LJ held as not to be unlawfully wrong a decision made by a caseworker because he had complied with his obligation:

"…to come to a decision on the evidence before him in a fair-minded manner and to reach reasonable conclusions based upon that evidence…" (paragraph 129).

53. Fifth, the corollary of this approach is that, as Goldring LJ explained in paragraph 48 of R (S, H and Q), that where the Secretary of State had:

"sufficiently had regard to that past illegality any injustice, she will be entitled in the exercise of her discretion to refuse ILR. Indeed in those circumstances, there would be no injustice caused by the original decision and so there would be no basis for not applying the general principle set out in Ravichandaran, namely that administrative decisions should be based on "the legal and factual context prevailing at the time the [subsequent] decision is made".

54. Sixth, Goldring LJ in paragraph 50 of R (S, H and Q) explained that courts will not intervene unless proceedings have been brought promptly following a decision by the Secretary of State not to grant asylum, which is considered to be wrongful as it failed to take account of illegality in the first decision. Delay in bringing the follow-up proceedings will be fatal. Indeed, in that case the Court of Appeal had been dealing with three claims by immigrants whose claims for asylum had failed because they had been deprived on the right to obtain 4 years' ELR under a policy then in force because of errors made by the Secretary of State. The policy was then changed and the claimants all sought orders from the Court that they should be granted 4 years' ELR.
55. These applications were refused on the basis of, among other matters, delays in bringing their claims as I will explain in paragraphs 75ff below. Goldring LJ giving the only reasoned judgment of the Court of Appeal explained (with emphasis added) in concluding his judgment that:

"137. The circumstances in which claims such as the present will succeed are very rare indeed. The facts must be exceptional. Delay in advancing the case will be fatal. Those who advise claimants should be aware of that before embarking on proceedings, often at public expense".

The issues on this application

56. The issues on this application are to be determined in the light of two matters. First, as I have explained in paragraphs 19 to 24 above, the 2012 and 2014 Decisions did not take into account the fact that the Claimant had been refused asylum in the 2002 refusal letter on the basis that he was not an Afghan, but that he was later found to be one by which time he could not invoke the right to obtain ELR for 4 years, which had been a right applicable at the time of the 2002 refusal letter, but which had been abandoned by the Secretary of State by the time when he was held to be an Afghan.
57. Second, I am assuming that at the time of the 2002 refusal letter, the Claimant would have been entitled as of right to 4 years' ELR merely be being a failed asylum seeker who happened to be an Afghan, even though he had never lived there, but instead had lived in Peshawar in Pakistan. I have doubts if the policy of automatically granting 4 years' ELR was meant to apply to all Afghans wherever they lived. I suspect it would not have applied to an Afghan who had lived his whole life in say America, but who had come to England and had then claimed asylum. It is difficult to see why such a person was in need of protection, let alone asylum. Indeed, I note that in R (K) v Secretary of State for Home Department [2010] EWHC 3102 (Admin), Beatson J (as he then was) explained in paragraph 10 that the Secretary of State's policy was with emphasis added "normally to grant a credible applicant for asylum from Afghanistan [ILR]". In the light of my findings on other matters, I need not resolve this issue and I will assume that the Claimant would have received 4 years' ELR in April 2002 if he had been found to be an Afghan, although I am not convinced that this is correct bearing in mind that the Claimant had never lived there, but instead had lived in Peshawar in Pakistan.
58. In the light of those two factual findings, the issues to be resolved on this application are:

A. Was the decision of 10 April 2002 legally flawed and unlawful ?

B. Would a reasonable Secretary of State have taken decisions relating to the Claimant's immigration rights after July 2002 without taking into account the fact that he was not given ELR as an Afghan in April 2002 even though he was later found to be an Afghan? and

C. Have the present proceedings been brought promptly?

Issue A. Was the decision of 10 April 2002 legally flawed and unlawful?

59. I have already explained that the reason why the Secretary of State reached the decision of 10 April 2002 that the Claimant was not an Afghan and was not entitled to a grant of ELR under the policy in force was because in the words of the 10 April 2002 refusal letter:

"you were unable to provide accurate information in respect of the majority of the questions that you were asked regarding your knowledge of Afghanistan".

60. So it has to be decided if that reasoning shows that the decision of 10 April 2002 was legally flawed and unlawful. Ms Naik says that it was legally flawed and illegal as was shown by the later decision of the Immigration Judge that the Claimant was an Afghan. Ms Rowlands accepts that there was a mistake in the decision, but her case is first that the Secretary of State had reasonable grounds for holding that the Claimant was not an Afghan, second that the Claimant was at fault in not showing the appropriate knowledge of Afghanistan when questioned by the immigration official, and therefore that the decision of 10 April 2012 was not legally flawed, as there was no error of law.
61. So it becomes necessary to consider what has to be shown before the Court intervenes because an earlier decision was legally flawed and unlawful. Carnwath LJ in R (S) stressed that it was "unlawfulness , not the cause of it, which justifies the court's intervention and provided the basis for the remedy". As I have explained in paragraph 47 above, the authorities show that there will be no interference by a court with an earlier decision unless that earlier decision was unlawful in the sense that it was a decision which the Secretary of State was not entitled to reach because it was reached in breach of policy or some other legal requirement. The courts will not interfere if the earlier decision-maker had reached a reasonable conclusion decision on the evidence before him in a fair-minded manner.
62. This was the basis of the decision in Q which was one of the three cases considered by the Court of Appeal in R(S, H and Q) (supra) in which Q was an Afghan national and who had arrived in the United Kingdom on 21 November 2000 and who had claimed asylum on arrival. The Secretary of State refused the application on the grounds among others that he was not an Afghan national because:

"…although you managed to answer some questions about Afghanistan correctly, the Secretary of State considers it relevant that many of the questions that you were asked about Afghanistan were incorrectly answered and indicated you had little knowledge of Afghanistan or life in Afghanistan. The Secretary of State has considered all the available evidence presented on your asylum claim, but has concluded that you are not genuinely of Afghan nationality".

63. Q appealed that decision and, as I have explained, on 18 April 2002, the policy of granting ILR to Afghans changed. On 30 April 2002, his solicitors provided the Secretary of State with further evidence of Q's nationality and in consequence, the Secretary of State accepted that Q was an Afghan and she therefore granted Q ELR for one year.
64. Q applied for judicial review of the decision to remove him. In representations Q sought to argue that the initial grant of 1 year's ELR was unlawful as he should have received 4 years' ELR which is what he would have received if he had been treated as an Afghan on his arrival in the United Kingdom on 21 November 2000 on account of the policy which I have explained in paragraph 3 above.
65. The judge refused the application and on appeal, Goldring LJ giving the only reasoned decision of the Court of Appeal explained that :

"129. While it is clear the process for identifying nationality in Q's case was not without error, I am not persuaded it was unlawful. It is wholly unrealistic to expect from an immigration caseworker the sort of standard reasonably to be expected from a social anthropologist of 40 years standing such as Dr. Ballard. The obligation on the case-worker was to come to a decision on the evidence before him in a fair-minded manner and to reach reasonable conclusions based upon that evidence…"

66. In other words, the reasoning in Q's case showed first, that the mere fact that a decision made by the Secretary of State was wrong did not mean that it was "unlawful", as otherwise the decision to refuse Q's claim for asylum would have been deemed unlawful, and second, there was a need for the original decision to be one, which the Secretary of State was not entitled to reach on the facts disclosed to her before it could be considered to be unlawful. Indeed the other cases to which I have referred are consistent with and supportive of this approach.
67. So, for example in Rashid, the Secretary of State failed to follow the prescribed policy and there was no satisfactory reason for that failure. Similarly in SL, there had been a failure to follow the prescribed policy while in R(S), the claimant's case was not considered because there had been a policy of delay in dealing with cases such as that of the claimant. In both those cases, the Secretary of State failed to follow the prescribed policy.
68. It is noteworthy that it has not been submitted, let alone shown, that the Secretary of State was not entitled to make the decision of 10 April 2002 refusing the Claimant's application for asylum on the basis of his failure to show that he had the appropriate knowledge of Afghanistan or of life in Afghanistan. There was nothing unlawful about that decision and I am fortified in reaching that decision by the approach of the Court of Appeal in Q's case as I have just explained in paragraphs 62ff above.
69. Ms Naik seeks to distinguish Q's case from the Claimant's case on a number of grounds. First, she says that the reason why the Secretary of State changed his mind and accepted that the Claimant was an Afghan was not because of further evidence from the Claimant, but instead because of the immigration judge's conclusion that it was well-known that many Afghan refugee families were in Peshawar on the Pakistani border and the Secretary of State should have been aware of this fact. I am unable to accept that this was the basis of the immigration judge's decision as he does not state this and in any event, even if it was, it does not assist the Claimant in distinguishing Q's case. The rationale of Q is, as Goldring LJ explained "the obligation on the case-worker was to come to a decision on the evidence before him in a fair-minded manner and to reach reasonable conclusions based upon that evidence". This is what happened in the Claimant's case.
70. Another ground on which Ms Naik seeks to distinguish Q's case is that the Secretary of State has reviewed the Claimant's case in the 2012 Decision but has failed to consider the erroneous refusal of ELR "as a mandatory material consideration". That ground assumes incorrectly that the original decision of April 2002 was unlawful, and I cannot accept that ground or any of the grounds relied on by Ms Naik for distinguishing Q's case to be correct
71. In conclusion, I am satisfied that the decision of 10 April 2002 was not legally flawed and unlawful as there is no reason to believe that the case-worker who interviewed the Claimant after his arrival did not come to a decision on the evidence before him in a fair-minded manner and then reach a reasonable conclusion in the light of the failure of the Claimant to answer questions about Afghanistan. In other words, there was not what Goldring LJ referred to in R (S, H and Q as the need for "the correction of injustice caused by the previous unlawful failure to apply the policy" or what Carnwath LJ explained in R (S) at paragraph 34 as being the requirement of a "legally flawed decision".

Issue B- Would no reasonable Secretary of State have taken decisions relating to the Claimant's immigration rights after July 2002 without taking into account the fact that he was not given ELR as an Afghan in April 2002?

72. This issue is based first on the absence of any reference in any of the post-July 2002 decisions of the Secretary of State to take into account the fact that the Claimant was not given ELR as an Afghan in April 2002, and second, on Laws LJ's approach in AA (Afghanistan) which I have quoted in paragraph 48 above and on Goldring LJ conclusion in R(S, H and Q) which I have quoted in paragraph 36(b) above. It is no longer a decisive issue as I have found that the decision of 1 April 2002 refusing the Claimant asylum was not unlawful. So I will therefore consider this issue more briefly than I would have done if it was a crucial and decisive issue on this application.
73. The critical factors in this case are first, that it was incumbent on the Claimant to answer the questions he was asked about Afghanistan when questioned by the case worker in April 2002; second, that the case-worker was obliged to come to a decision on the evidence before him in a fair-minded manner and to reach reasonable conclusions based upon that evidence; and third, that there is no suggestion let alone proof that the case-worker erred in not being satisfied that that the Claimant was not an Afghan from the answers given by the Claimant to the questions put to him. In other words, the Claimant was at fault in not providing the correct information and this led to the refusal of his asylum claim in April 2002.
74. In those circumstances, this is not a case in relation to which I could conclude that no reasonable Secretary of State taking any decisions relating to the Claimant's immigration rights after July 2002 would have failed to take into account the fact that he was not given ELR as an Afghan in April 2002. That is another reason why the claim must be rejected.

Issue C. Were the present proceedings brought promptly?

75. The significance of this issue is that, as Goldring L J explained in R(S, H and Q) proceedings had to be brought promptly after a second decision in that case "not to grant asylum" without taking account of the previous unlawful refusal of a right. Similar reasoning would apply to a decision not to grant ELR or any form of leave. In deciding if the present proceedings were brought promptly, it is necessary to reach a fact-sensitive decision. In carrying out this exercise, it is instructive to compare with the present case the circumstances in which the claims in R (S, H and Q) were considered by the Court of Appeal not to have been brought promptly and I will start by analysing the three decisions in the Court of Appeal cases.

S's Case

76. S, who arrived in the United Kingdom on 9 January 2000, was required to complete the Statement of Evidence form, which he was given on 30 May 2000. He returned it within the specified 21-day period, but the Immigration and Nationality Directorate mislaid it. The policy of giving people in S's position ELR ended on 6 September 2001, but S did not know that his application had been refused until January 2002 when he was told of this refusal decision, which had been reached because the Secretary of State had considered erroneously that S had failed to return the Statement of Evidence form.
77. On 26 June 2003, the Secretary of State informed S that he accepted that the Statement of Evidence form had, in fact, been returned in time by S. On 7 August 2003, S submitted a further Statement of Evidence form. On 25 February 2004, S was interviewed. His claim for asylum was refused on 1 March 2004. From then on, S could have advanced the claim which he later made which was that as at the date of the original non-compliance refusal, he should have been granted ELR when he first applied for it; indeed it was that decision which was the subject matter of the Court of Appeal decision to which I have referred.
78. The nature of S's claim makes it clear he was aware of the policy that he should have been granted ELR. On 9 December 2004,S was refused permission to appeal by the Immigration Appeal Tribunal. On 27 January 2005, Richards J (as he then was) rejected his application for reconsideration. It was only on 25 January 2005 that S applied for leave to remain on the grounds that, as at the date of the original non-compliance refusal, he should have been granted ELR.
79. Goldring LJ rejected S's appeal because:

"84. As the judge said, the present claim is very considerably out of time. That is sufficient to dispose of S's appeal".

80. So the position was that S waited from 1 March 2004 when his claim for asylum was refused until 25 January 2005 to bring the application based on the erroneous handling of the original handling of his original application. The Court of Appeal considered that delay to be too long.

H's case

81. H's complaint is that he arrived in the United Kingdom on 25 February 2000 and on 30 August 2000, like S, his application was asylum was rejected on the erroneous basis that he had failed to return the Statement of Evidence form, which he had, in fact, returned. This error on the part of the Secretary of State was recognized and a fresh decision was made refusing H's claim, as he was not accepted as being an Afghan, because he could not give proper answers to the questions he was asked about Afghanistan. H appealed unsuccessfully and his appeal rights were exhausted on 15 December 2003.
82. It was held that the claim could not be pursued because of delay. Goldring LJ explained that:

"110. It seems to me the judge was right regarding H's delay in bringing this claim. He knew of the policy of granting of ELR in 2000. Asylum was refused on 27 August 2003. His appeal rights were exhausted on 15 December 2003. He first sought to raise this claim on 23 January 2006".

83. So H's delay of 25 months from December 2003 in bringing the claim was held to be fatal.

Q's case

84. He arrived in England on 21 November 2000, and he claimed asylum, but on 3 May 2001 his application was refused on the grounds that he was not an Afghan. He appealed and there was no presenting officer available for the hearing fixed for 27 March 2002, which was adjourned. Eventually Q and his solicitors produced evidence of Q's Afghan nationality and at the appeal hearing on 28 May 2002, the Presenting Officer stated that the Secretary of State accepted that Q would have ELR for one year, Q applied unsuccessfully for an extension of his period to remain and on 15 February 2005 his appeal rights were exhausted. On 8 May 2006, which was the day before removal directions were to take effect, Q for the first time sought to argue that the initial grant of 1 year's ELR, rather than 4 years' ELR had been unlawful.
85. Goldring LJ explained that:

"134. I highlight the significant dates. The Secretary of State accepted Q's Afghani nationality shortly after the reduction from 4 to 1 year's ELR on 18 April 2002. On 28 May 2002 Q accepted agreed (sic) that he should be granted 1 year's ELR. He did not suggest that the Secretary of State had failed properly to apply his policy and he was entitled to 4 years' ELR. It was only on 8 May 2006, a day before he was due to be removed, that he sought for the first time to put forward his present claim."

86. In the opinion of Goldring LJ in paragraph 133,"this case was hopelessly out of time".

The Claimant's dates

87. The relevant dates relating to the Claimant's claim are, as I have explained, that on 10 April 2002 the Secretary of State refused the Claimant's claim for asylum on the basis that he was not an Afghan. On 24 October 2002, the Immigration Judge held that the Claimant was an Afghan, but by then the policy of giving ELR to Afghans had been terminated. On 28 November 2002, the application by the Claimant for permission to appeal against the decision refusing him asylum had been refused.
88. On 25 June 2008, on 1 September 2008 and on 16 October 2008, the Claimant submitted further representations contending that they constituted "fresh claims" under paragraph 353 of the Immigration Rules. On 11 November 2008, the Secretary of State refused to accept the Claimant's further representations as a "fresh claim". The Claimant could have raised at that time the complaint raised in the present proceedings that the Secretary of State should have granted some form of leave to the Claimant because that is what he should have been granted in April 2002.
89. On 20 July 2009, the Claimant submitted further representations to be considered as a "fresh claim". On 1 October 2010, the Secretary of State wrote a letter refusing to accept the Claimant's further representations as a "fresh claim" explaining that the Claimant, on whose behalf representations had been made did not qualify for asylum or humanitarian protection or any form of leave to remain in the United Kingdom. It was then open to the Claimant, who had solicitors acting for him but not his present solicitors, to raise the point which has been pursued on this present application which was the Secretary of State should have reached a different decision because the original April 2002 asylum decision was wrong as the Claimant was an Afghan and so was entitled to ELR at that time. Similarly he should have raised the point and issued a challenge based on the failure to give him leave to remain when he was 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.
90. In fact, the challenge was finally and belatedly made in these proceeding, which were only instituted on 21 August 2012. Ms Rowlands says that this was not a prompt challenge and no evidence has been put forward to justify the delay in bringing proceedings. In my view, the Claimant failed to act promptly to challenge the decisions of 11 November 2008 and more importantly of 1 October 2010 as he waited respectively for more than 45 or 22 months to do so. Alternatively he should have issued the challenge promptly when he received the letter of 1 February 2011 referred to in the last paragraph, but instead he waited for more than 18 months before he brought his present claim. Thus this claim has to be refused on this ground as well as on the other grounds to which I have referred.

Fresh Claim

91. The relevant rules relating to the acceptance of material as constituting "fresh claims" are set out in the Appendix. The approach to these rules was explained by the Court of Appeal in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495 who stated that in reviewing the Secretary of State's decision, a judge must consider whether the Secretary of State had asked herself the right question – namely, whether there was a realistic prospect of success before an adjudicator, applying the rule of anxious scrutiny. He should then have proceeded to consider whether, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, the Secretary of State had satisfied the requirement of anxious scrutiny.
92. Toulson LJ explained this test in AK (Afghanistan) v SSHD [2007] EWCA Civ 535 (at paragraph 23) when he stated that:

"Precisely because there is no appeal from an adverse decision under rule 353, the decision maker has to decide whether an independent tribunal might realistically come down in favour of the applicant's asylum or human rights claim, on considering the new material together with the material previously considered. Only if the Home Secretary is able to exclude that as a realistic possibility can it safely be said that there is no mischief which will result from the denial of the opportunity of an independent tribunal to consider the material." [Emphasis added]

93. In this case, I am quite satisfied that the Claimant would have had no realistic prospects of success in front of an independent tribunal essentially for the reasons which I have explained, namely first, that there was no basis for concluding that the decision of 10 April 2002 was legally flawed and unlawful essentially for the reasons set out in paragraphs 59ff, and second that it would not have been so unfair to proceed without taking into account the fact that on 10 April 2002 that no reasonable Secretary of State would have taken such a course for the reasons set out in paragraphs 72ff. Another way of reaching the same conclusion would be because it cannot be said that the only way in which the Secretary of State could reasonably have exercised her discretion would have been by granting ILR. Indeed the opposite is true, as no Secretary of State could reasonably have exercised her discretion by granting ILR.

Conclusion

94. The Court of Appeal in R (S, H and Q) explained (with emphasis added) in relation to claims (such as that of the Claimant in this case) to grant some form of relief not applicable at the time of the decision, but which was applicable at the time of some earlier legally flawed and unlawful decision, that:

"137. The circumstances in which claims such as the present will succeed are very rare indeed. The facts must be exceptional. Delay in advancing the case will be fatal..."

95. In this case, the facts are not "exceptional" as the reason why the Claimant was not regarded in April 2002 as an Afghan was because he "was unable to provide accurate information in respect of the majority of questions you were asked regarding your knowledge of Afghanistan". In consequence, the caseworker was entitled on the evidence before him to reach a reasonable conclusion that the Claimant was not an Afghan. This decision is not challenged. Indeed, there is nothing unlawful about that decision which is very similar to the decision of the Court of Appeal in the case of Q, which was one of the cases considered in R (S, H and Q) as I explained in paragraphs 62ff above.
96. A further and alternative reason why this claim had to be rejected is that it cannot be said that the only way in which the Secretary of State could reasonably have exercised her discretion would have been by granting ILR to the Claimant if (which is not the case) in reaching the 2012 and 2014 Decisions she had considered the circumstances and consequences of the April 2002 refusal.
97. In addition, claims of the kind brought by the Claimant had according to the Court of Appeal in R(S, H and Q) to be brought promptly as explined in paragraph 36 (f) above, but in this case, there were very substantial delays. This is a further and alternative reason why this claim has to be rejected. As I have explained, the Claimant should have issued the challenge promptly and at the very latest when he received the letter of 1 February 2011 informing him that he had no basis to stay in the United Kingdom and that he should leave the United Kingdom "without delay", but instead he waited for more than 18 months until 21 August 2012 before he brought his present claim,
98. Thus notwithstanding the able submissions of Ms Naik, for the reasons which I have set out, this application in respect of the 2012 Decision must be rejected, and I give permission in respect of the application relating to the 2014 Decision, but I then reject the application. The Claimant will appreciate that Ms Rowlands on behalf of the Secretary of State has invited the Claimant to make an Article 8 application for leave to remain.

Note 1   The Secretary of State erroneously informed the Claimant on 31 October 2008 that he had been granted leave to remain and this was corrected subsequently and it is common ground that this is not relevant to this application.    [Back]

Note 2   The case is actually entitled R (S,H and Q) v Secretary of State for Home Department and see paragraph 36 below.    [Back]

Note 3   The only reasoned judgment of Court of Appeal in R(S,H and Q) v Secretary of State for Home Department was given not by Laws LJ (who was a member of the Court) but by Goldring LJ . See paragraph 36 below.    [Back]

Note 4   Maurice Kay LJ agreed when giving the only reasoned judgment of the Court of Appeal in KA (Afghanistan) [2012] EWCA Civ 1014) paragraph 13    [Back]

Note 5   Moore-Bick LJ in R (S) at paragraphs 70 and 72 agreed that these were the appropriate questions while in MM (Zimbabwe) v Secretary of State for Home Department [2012] EWCA Civ 135 Hughes LJ at paragraph 17 specifically endorsed the analysis of Carnwath LJ inR (S). The Court of Appeal adopted a similar approach in R (S, H and Q) when Goldring LJ referred to the need for “the correction of injustice caused by the previous unlawful failure to apply the policy”.     [Back]