Neutral Citation Number: [2007] EWCA Civ 774
Case No: C5/2006/1846

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
CC/00330/2004
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 25/07/2007
Before :

RT HON SIR MARK POTTER, PRESIDENT OF THE FAMILY DIVISION

LORD JUSTICE SEDLEY
and
LORD JUSTICE WILSON

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Between :

	DS (AFGHANISTAN)	Appellant	
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	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent	
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(Transcript of the Handed Down Judgment of
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Ms A Jones (instructed by Messrs Malik & Malik) for the Appellant
Ms N Greaney (instructed by the Treasury Solicitors) for the Respondent

Hearing date: Wednesday 27 June 2007
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Judgement
Lord Justice Sedley : 
1.	The appellant, a national of Afghanistan and a Hindu, arrived in the UK on 5 December 2001 and claimed asylum on arrival. At that date, and until 18 February 2002, because of the situation then prevailing, the Home Office had a policy of granting 4 years’ exceptional leave to remain to Afghan asylum-seekers. By a letter of 7 February 2002, however, the Home Secretary refused the appellant’s claim on the ground that he was not in the Home Office’s view a national of Afghanistan. It is now common ground (a) that the Home Office’s view was wrong and the appellant is indeed an Afghan national, and (b) that had this been recognised at the time of his application he would have been granted 4 years’ exceptional leave to remain.
2.	What happened in the event was that the appellant appealed to the IAT, as it then was, on both asylum and human rights grounds. It was at a preliminary hearing in June 2004 that he produced a passport, issued to him by the Afghan embassy in London, which led the presenting officer at the appeal hearing the following month to concede that he was indeed an Afghan national. The claims failed on the facts before the adjudicator, Mr P Bryant, as did an application for leave to appeal to the IAT. A statutory review was granted by Toulson J (as he then was), but on reconsideration the AIT (as it now was) found no error of law in the adjudicator’s determination.
3.	An issue as to time having been waived, this appeal from the AIT’s reconsideration decision comes before the court on a single point: did the adjudicator err in law in assessing the proportionality of return under ECHR art. 8? Auld LJ refused permission to appeal on the papers, but Scott Baker LJ granted it on an oral renewal of the application. He accepted as having a real prospect of success Ms Amanda Jones’ submission that, given the Home Office’s failure to apply policy evenhandedly, the question of proportionality did not arise, since its decision was outside the law.
4.	That this was not quite how it was put to the adjudicator is apparent from the material part of his determination, promulgated on 29 July 2004:
 “30. At the outset of the appeal, Mr Lumb for the respondent conceded that the appellant was a citizen of Afghanistan.  It was also agreed that the appellant’s home had been in Kabul and it was to Kabul that the appellant would be returned.  Mr Saleem asked me to note that the refusal letter was dated 7 February 2002 and that there was then a policy of granting ELR, at least, to Afghan citizens arriving in this country.  As Mr Lumb had now conceded that the appellant is a citizen of Afghanistan, he would have been such a citizen on the date of his arrival and on the date of the respondent’s refusal.  Mr Saleem subsequently asked me to take this factor into account when considering proportionality under Article 8.  Mr Lumb submitted that the concession was made by him at the appeal on the basis of new evidence provided by the appellant and I agreed that there was no requirement now for the respondent to consider acting towards the appellant as would have been the case if on his arrival in this country the appellant had been able to prove that he was a citizen of Afghanistan.
34. I therefore find that whilst it is accepted that the appellant is from Kabul and practices the Hindu faith, I find his lack of credibility is such that I do not find it proved even to the lower standard required, that he and his family have suffered such persecution in the past there in the practice of their religion as the appellant has claimed.  He, on his own evidence, left Afghanistan in July 2001 at a time when the Taliban were still in power.  The appellant can give no direct evidence of the situation in Kabul subsequent to the ending of the Taliban regime and, therefore, what the position would be now in Kabul for a practicing Hindu.  I have not found him credible in his evidence of what allegedly occurred to him and his family under the Taliban regime.
36. On the basis of my findings under Refugee Convention, and taking into account the objective evidence and the IAT determination in IB and TK, I find that there are no substantial grounds for believing that this appellant’s rights under Article 3 of the Human Rights Convention would be violated on any return.
37. Article 8 is also raised on behalf of the appellant.  This Article was not considered by the respondent and therefore I find that it is for me to consider the issue of proportionality.
38. I have read the statements of the witnesses in support of the appellant.  He is aged 28 and is seemingly in good health.  His evidence is that he has lost contact with his immediate family who may or may not be in Afghanistan.  He has more distant family in this country together with friends.  The appellant gives little evidence of his life in this country or his relationship with his wider family and friends here.  I do not find it proved from the evidence that there is that level of dependency between him and his wider family in this country such as would engage the family life aspects of Article 8.
39. The appellant has been in this country since December 2001 and in that time must have established some form of private life here.  His evidence is that he has sought permission to work but has not been permitted to do so by the respondent and has sought to enrol for further education but has had no replies to his applications.  I do not know what the appellant does in this country with his life and there is meagre evidence as to what private life he does actually enjoy here.  It is settled that this country has the right under international law to control the entry of non-nationals and the effective enforcement of immigration control is a legitimate aim under Article 8.2.  Any removal of the appellant to Afghanistan would interfere with his right enjoy his private life in this country.  I take into account my findings under the Refugee Convention and under Article 3; the meagre evidence of just what private life he enjoys in this country; the concession at the appeal that he was a nationals of Afghanistan which was not conceded on the appellant’s arrival in this country and when his claim for asylum was refused; the apparent good health, age and single status of the appellant; the length of time he has been in this country and the submissions made to me.  I put these factors into the balance with the legitimate aim of seeking to enforce immigration control and I find that any removal of the appellant to Afghanistan would be proportionate to that legitimate aim.  I therefore find that there are no substantial grounds for believing that this appellant’s rights under Article 8 of the Human Rights Convention would be violated on any return to Afghanistan.”

5.	On reconsideration pursuant to Toulson J’s order, the AIT held:

“12. He further submitted that the adjudicator, when considering Article 8, failed to have regard to the policy of granting exceptional leave to remain to citizens of Afghanistan that was in existence at the time of the appellant’s arrival. At the hearing of this appeal it was conceded that he was a citizen of Afghanistan, which was not accepted at the time of his arrival.  Nevertheless, he argued, it was a factor to be taken into account in relation to Article 8.  We were referred to the decision of the Administrative Court, Timothy Mugisha [2005] EWHC 2720 (Admin) to the effect that the appellant in this case should have had the benefit of the policy that was in existence at the time of his arrival.  We were also referred, in passing, to Baktear Rashid [2004] EWCA Civ. 744. 
16. We conclude that the adjudicator did take into account in assessing proportionality under Article 8 fact that there was said to be a concession in place in relation to Afghan nationals at the date of the appellant’s arrival.  That concession apparently being to the effect that exceptional leave to remain would be granted.  The adjudicator refers at paragraph 30 to the submissions made on behalf of the appellant about that concession. He notes that he was asked by the appellant’s representative to take that into account when considering proportionality under Article 8.  At paragraph 39 of the determination he refers to the fact that it was accepted on behalf of the respondent that the appellant was a national of Afghanistan, which fact was not accepted on his arrival.  He expressly states that he has taken into account the submissions made to him.
17. Even if it were the case that the adjudicator had not taken into account that concession in assessing proportionality and even if we concluded that it was a factor which should have been taken into account, we do not find that this would amount to a material error of law.  We find that the conclusion in relation to the Article 8 argument would have been the same having regard to the evidence before the adjudicator.”

6.	It is first necessary to say that if this case turned on §17 of the AIT’s decision it would be very difficult to uphold it. It requires explicit and careful reasoning to demonstrate in any but a plain case why a decision on proportionality would have been the same even if a material factor which has been overlooked had been properly taken into account. But, as I have indicated, that is not the issue before us.
7.	What Ms Jones does now seek to say is that the decision of the Home Office’s Immigration and Nationality Directorate, set out in its refusal letter of 7 February 2002, was not only wrong but irrational and therefore unlawful. I entirely accept that a decision taken in manifest bad faith, for example one which demonstrates a determination to disbelieve the applicant whatever he says, is an abuse of power carrying well-established consequences. The decision letter in the present case set out a series of apparent or real inconsistencies or gaps in the information supplied by the appellant in answer to questions designed to test his personal veracity and his knowledge of Afghanistan, leading the writer to conclude that he was not of Afghan origin. It has to be said that a number of the things fastened upon by the letter-writer look factitious and designed to find fault; but I am unable to accept that the letter is so deficient in rationality or fairmindedness as to amount in law to no decision at all. It is at most an overzealous scrutiny of an unusual application, and it is to the Home office’s credit that it admitted its mistake as soon as it was shown the passport issued to the appellant by the Afghan authorities.
8.	Ms Jones founds upon the decision of this court in Bakhtear Rashid [2004] EWCA Civ 744, a case not mentioned to the adjudicator and relied on, it seems, only peripherally before the AIT. Bakhtear Rashid was an egregious case of persistent mismanagement of an asylum claim so as to deny an Iraqi Kurd the asylum which it was government policy at the material time to grant. The essence of the case can be seen from §13 of the judgment of Pill LJ.
 “13. The failures in the Home Office in this case were startling and prolonged. The policy, which if applied would have led to a grant of asylum to the claimant, was in force from October 2000 until March 2003. It was in force for sixteen months following the claim for asylum in the present case. It applied when the claimant was interviewed on 7 and 8 December 2001, when his claim was refused on 11 December, when refusal was amended in a further letter of 14 May and, before the adjudicator, on 15 May 2002, where the availability of relocation to the KAZ was fully argued by the Home Office Presenting Officer. The IAT refused leave to appeal on grounds which included upholding the adjudicator's finding on internal relocation. In submissions to the IAT, both in M and in A, Presenting Officers relied on internal relocation. In obtaining leave to appeal in M (the IAT having found against the Secretary of State on the status of KAZ point), internal relocation was relied on by counsel instructed by the Secretary of State and, until late February 2003, that stance was maintained. A considerable number of people were thereby involved in relying on arguments which were contrary to the Secretary of State's policy. The error extended to instructions given to the Treasury Solicitor and to Counsel. That state of affairs is quite unexplained, though bad faith is not suggested.”

9.	However, what Ms Jones principally relies on is what followed:
“15. For the Secretary of State, Mr Tam accepts that the claimant should have had the advantage of the asylum policy in operation in 2001 and that he should have been granted refugee status. The decision at that time was unlawful and a court would at that time have granted relief. The position in Iraq did, however, change dramatically in March 2003. While refugee status had been refused on a false basis, the reconsideration, which rightly took place, took place at a time when there was no risk that the claimant would be persecuted in Iraq. He could not be granted refugee status when, as is agreed, he did not satisfy the risk requirement. The timing was unfortunate for the claimant but the case is not unique in that respect, it is submitted. Decisions on asylum cases depend on the current situation in the state of origin and decisions will be different when the situation changes for the better. Delay in decision making which leads to the application being considered in the light of the changed situation cannot justify a decision based on the earlier situation, it is submitted, even if the delay resulted from administration error.

“36. I agree with the judge's conclusion that the degree of unfairness was such as to amount to an abuse of power requiring the intervention of the court. The persistence of the conduct, and lack of explanation for it, contribute to that conclusion. This was far from a single error in an obscure field. A state of affairs was permitted to continue for a long time and in relation to a country which at the time would have been expected to be in the forefront of the respondent's deliberations. I am very far from saying that administrative errors may often lead to a finding of conspicuous unfairness amounting to an abuse.

37. The court should not, in my view, make a declaration that the claimant is entitled to refugee status. That is a status conferred on the basis of criteria prescribed in an international treaty and should not be conferred if those criteria are not at the time of decision satisfied. The court should, however, having found an abuse, intervene to give such relief as it properly and appropriately can.
39. The court should, in my view, declare that the claimant is entitled to a grant indefinite leave to remain in the United Kingdom. That provides a remedy for the unfairness and is the appropriate response in the circumstances. It is inferior to refugee status on the present facts, Mr Rabinder Singh informs us, only in two ways. Consequential rights under the Refugee Convention are not created, a limitation, which is probably of little practical importance in the present case. Secondly, certain state benefits claimable on a grant of indefinite leave to remain are not backdated to the date of application for asylum as they are when refugee status is granted.”

10.	Dyson LJ added this:
 “53. In the absence of any explanation, I consider that the court is entitled at the very least to infer that there has been flagrant and prolonged incompetence in this case. This is a far cry from the case of a mistake which is short-lived and the reasons for which are fully explained. The unfairness in this case has been aggravated by the fact that, as explained by Pill LJ, the claimant was not treated in the same way as M and A, with whose cases his case had been linked procedurally. Had he been so treated, he would have had the benefit of the policy and been accorded full refugee status.”

11.	The present case in my judgment differs from Bakhtear Rashid in at least these respects:
(a)	The failure to recognise this appellant’s nationality was not caused by either deliberate or negligent oversight of a policy which would have protected him but by a mistaken belief that he was not of Afghan nationality.
(b)	The failure was corrected as soon as proof of his nationality in the form of an authentic passport was produced to the Home Office.
(c)	The policy, had it been applied, would not have afforded him either refugee status or indefinite leave to remain but only exceptional leave expiring in February 2006. All being well, however, there was no reason why this should not have been followed by a grant of indefinite leave.

12.	What Ms Jones nevertheless submits is that the failure to apply the policy was an error of law on the part of the Home Office, making it impossible for the adjudicator to hold that removal would be in accordance with the law as required by art.8(2) and thereby determining the article 8 claim in the appellant’s favour, notwithstanding the exiguousness of the evidence of private life in the UK found by the adjudicator. Moreover, Ms Jones submits, if the Home Office or the adjudicator had given effect to the original policy, as should have been done as soon as the error was appreciated in mid-2004, the appellant would have secured a status which, albeit temporary, enabled him to work and build up a life in this country, whereas as an asylum-seeker he was denied a right to work. This should have weighed significantly in the assessment of proportionality if the first line of defence were to fail.
13.	Ms Jones seeks support in the very recent decision of this court in R (S) v Home Secretary [2007] EWCA Civ 546. This was a case in which an Afghan asylum-seeker’s application was, unknown to him, put on hold by the Home Office for a period so long that by the time it came to be considered the policy under which the appellant would have been granted ELR, with the prospect of ILR at the end of it, had been revoked. The critical holding is found at §52 of the leading judgment of Carnwath LJ:
 “….the postponement of the old applications was an arbitrary decision, dictated only by the perceived need to meet the targets for dealing with new applications laid down by the agreement with the Treasury. In my view, that was unlawful, and (if it is necessary so to hold) an abuse of power.”

This is reflected in the judgment of Moore-Bick LJ at §71.

14.	It followed, as it had done in different circumstances in Bakhtear Rashid, that the court’s obligation was, so far as possible, to put the appellant in the position in which he would have been had the abuse of power not occurred. It is Mr Jones’ submission that the same, in principle, is the case here.
15.	I am unable to accept this argument. Although some of its reasoning in the decision letter is heavy-handed and strained, for example in relation to the languages which the appellant spoke or understood, the Home Office had reached a rational and legally permissible decision on the material then in its hands. When further material was supplied it responsibly altered its position and conceded that the appellant was an Afghan national. The adjudicator’s task was to assess risk and proportionality as things stood at the time of the hearing before him, and that is what he did. There was in my judgment no legal obligation, whether on grounds of abuse of power or of legitimate expectation, to place the appellant in the same position as if his nationality had been accepted in the first place. Moreover, by the time the AIT came to reconsider the case – albeit they stopped at the finding that there was no reason in point of law to reopen the adjudicator’s decision – the period of exceptional leave to remain to which the policy would have entitled the appellant had expired. The facts could hardly be further from those in Bakhtear Rashid.
16.	Ms Jones nevertheless invites us to adopt a similar approach, following that of Calvert-Smith J in R (Mugisha) v Home Secretary [2005] EWHC 7270 (Admin), reported at [2006] INLR 335. The nature of the case is set out at §2-4:
“2. In summary, the claimant contends that, since November 2000, there had been a practice (which followed a similar practice in place since at least 1997) whereby a Rwandan national who failed in an application for asylum was not returned to that country but granted four years' exceptional leave to remain. Secondly, that in June 2001, in deciding this claimant's application for asylum, the defendant found as a fact that he had failed to establish that he was a Rwandan national and it is contended that that decision may well have been different had the defendant been aware of the important fact that the claimant is a Kinyarwanda speaker. Thirdly, it is contended that, in April 2004, the defendant accepted in terms that the claimant was after all a Rwandan national but that, in spite of that acceptance, he has maintained his decision not to give him the benefit the November 2000 provision. Fourth, that throughout the period from June of 2000 to today, November 2005, the defendant has shifted his position in respect of a number of issues and has not satisfactorily explained such shifts. 
3. In summary the respondent claims that the decision of June 2001 was a genuine and reasonably reached decision which therefore did not entitle the claimant to the benefit of the November 2000 practice and, second, that the change of decision as to whether he, the claimant, is a Rwandan national was made because, and at a time when, it was no longer material to any issue since, by the time it was made in April 2004, the practice of not returning failed Rwandan asylum seekers but granting them exceptional leave to remain had ceased. 
4. There is a considerable measure of agreement between the parties that this case, now effectively five years and five months old, has been beset by unnecessary delays, many, if not most of which, are attributable in some way or another to the defendant and those which are not cannot reasonably be attributed to the applicant himself as opposed to his legal advisers. In short therefore, whatever the rights and wrongs of the case and its ultimate result, the claimant is entitled to feel that he has not been well treated by the system as a whole.” 

17.	The judgment turns upon the law of legitimate expectation. Having set out much of the extant learning on it, the judge adopted this passage from Bakhtear Rashid:
“25. In my judgment, there plainly is a legitimate expectation in a claimant for asylum that the Secretary of State will apply his policy on asylum to the claim. Whether the claimant knows of the policy is not in the present context relevant. It would be grossly unfair if the court's ability to intervene depended at all upon whether the particular claimant had or had not heard of a policy, especially one unknown to relevant Home Office officials.”

He concluded:
“The concept of conspicuous unfairness which… leaps off the page, is what, by consent of the parties, I have been asked to look at in this case. I have done so looking overall at the treatment of this claim as well as the specific issue of the change of attitude towards the claimant's nationality. I find that there was indeed a conspicuous unfairness in the way in which the claimant has been treated, not deliberately but, in fact, ever since the finding on 8th June 2001. ….”

18.	Ms Jones recognises that she cannot at this late stage erect a case of legitimate expectation. Instead she seeks to bring the same arguments under the umbrella of ECHR art. 8, upon which the appeal to the adjudicator was founded. It is her submission that the treatment of the appellant amounted to conspicuous unfairness comparable with that which led the court to intervene not only in Bakhtear Rashid and in S but in Mugisha.  
19.	She is able to place reliance for this purpose on a passage in the judgment of Simon Brown LJ in Unilever [1996] STC 681:
[22] ‘Unfairness amounting to an abuse of power’ as envisaged in Preston and the other Revenue cases is unlawful not because it involves conduct such as would offend some equivalent private law principle, not principally indeed because it breaches a legitimate expectation that some different substantive decision will be taken, but rather because either it is illogical or immoral or both for a public authority to act with conspicuous unfairness and in that sense abuse its power. As Lord Donaldson MR said in R v ITC, ex p TSW: ‘The test in public law is fairness, not an adaptation of the law of contract or estoppel’. 

(The caution expressed here in relation to substantive legitimate expectation has to be seen in its context: in 1996 it was not yet certain – and remained uncertain until Coughlan was decided by this court in 2001 -  whether substantive, as opposed to procedural, expectations could be enforced by the courts.)

20.	Conspicuous unfairness, Ms Jones submits, is capable of rendering a departmental refusal of humanitarian protection unlawful, preventing any justification from being advanced under art. 8(2) since removal would not be in accordance with the law.
21.	I am willing for present purposes to accept that this syllogism can operate in an art. 8 case. What I am unable to accept is that the history of this case displays anything that can be called conspicuous unfairness on the part of the Home Office. I have referred earlier in this judgment to the decision letter and the admission that it was wrong. Neither, for reasons I have given, demonstrates anything comparable with the deplorable unfairness that characterised, in differing degrees, the three cases on which Ms Jones relies.
22.	In my judgment, therefore, this appeal must be dismissed. This does not mean, however, that the Home Office cannot as a matter of good governance make amends for its error. It is still open to the IND to treat the appellant as, but for its admitted mistake, he would have been treated: not by artificially setting the clock back to begin a 4-year period of ELR which would by now have expired, but by recognising how the appellant would in all probability have been treated at the end of such a period, and now treating him accordingly.

Lord Justice Wilson:
23.	I agree.

The President:
24.	I also agree.