Neutral Citation Number: [2007] EWCA Civ 615 
Case No: C4/2006/1057
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD Administrative Court
Mr Justice Forbes
[2006] EWHC 1883 (Admin) 
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 27/06/2007
Before :

LORD JUSTICE PILL
LORD JUSTICE RIX
and
LORD JUSTICE LONGMORE
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Between :

	The Queen on the Application of ZK (Afghanistan)
and YM (Afghanistan)	Appellants	
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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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Amanda Jones (instructed by Messrs Malik & Malik) for the Appellant
Katherine Olley (instructed by the Treasury Solicitor) for the Respondent

Hearing date : 10 May 2007 
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Judgment

Lord Justice Pill : 
1.	These are appeals by ZK and YM against decisions of Forbes J dated 5 May 2006.  The judge heard applications for permission to apply for judicial review to quash decisions made by the Secretary of State for the Home Department (“the respondent”) on 14 October (YM) and 20 October 2005 (ZK) refusing to accept further representations made by the appellants, by letters to the Secretary of State, as fresh claims for relief within the meaning of Rule 353 of the Immigration Rules.  Both applications to the judge were renewed applications, the application of ZK having been refused on paper by Sullivan J and that of YM by Wilkie J.  
2.	Permission to appeal to this court has been given by Latham LJ following an oral hearing on 15 November 2006, permission having been refused on paper.  Granting permission, Latham LJ stated: “It can only be in the interest of proper administration of these cases for this court to provide some guidance”.  In the course of argument Latham LJ had stated that he saw “absolutely no merit in these cases” and that, on the face of them, they were “abuses of process”.  Reliance is placed by the appellants on the respondent’s delay in taking decisions and, in the case of ZK, on the failure to apply a current policy.  It must be kept in mind, however, that what is being challenged by this application for judicial review is the rationality of the respondent’s decision on whether a fresh claim was made in 2005.   
3.	Rule 353 of the Immigration Rules provides:
“When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim.  The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered.  The submissions will only be significantly different if the content: 
(i)	had not already been considered; and
(ii)	taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”
4.	There are inconsistencies in the dates of decisions given in the various documents supplied to the court but, for present purposes, I believe that the dates in the following paragraphs are acceptable.  
5.	ZK is an Afghan citizen who arrived in the United Kingdom on 10 August 1998 and claimed asylum.  His claim was refused on 3 April 2001 and an appeal to a special adjudicator was dismissed on 12 February 2002.  The adjudicator, however, recommended that ZK be granted exceptional leave to remain (“ELR”).  ZK was granted one year’s ELR by the respondent on 11 July 2002 but a further application for leave to remain was refused on 29 July 2004.  A further appeal was dismissed by an adjudicator on 15 November 2004, in ZK’s absence, and an out of time application to the Immigration Appeal Tribunal (“IAT”) was refused on 19 July 2005.  Further representations, said to amount to a fresh claim, were made by letter dated 13 October 2005.  Claims were made for refugee status and under articles 2, 3 and 8 of the European Convention on Human Rights (“the Convention”).        
6.	YM is also an Afghan national.  He arrived in the United Kingdom and claimed asylum on 30 October 1999.  His claim was refused on 12 September 2002 and an appeal against that decision was dismissed by an adjudicator in a decision signed on 26 March 2003.  Claims under articles 2, 3 and 8 of the Convention were also dismissed by the adjudicator.  On 23 May 2003, the IAT refused permission to appeal.  On 15 July 2003, further representations, accompanied by documents claimed to support the application for asylum, were made by solicitors then acting on YM’s behalf and these were rejected by the respondent on 10 September 2003.  Further representations, by different solicitors, and said to amount to a fresh claim, were made by letter dated 2 March 2005.  It was claimed that YM is a refugee and is also entitled to relief under articles 3 and 8 of the Convention.  The same solicitors now act for the two appellants.     
7.	Thus in both cases statutory appeal procedures have been followed by the appellants.  
8.	When ZK’s claim for asylum was refused, and until 18 April 2002, the respondent’s policy is said to have been to grant four years’ ELR to applicants for asylum from Afghanistan, though ELR is in present circumstances in its nature discretionary.  Between 18 April 2002 and 10 July 2002 the grant of ELR, when considered appropriate, was reduced to a period of 12 months and, from 11 July 2002, there was no longer a practice of granting ELR to failed Afghan asylum seekers.  That was the position when YM was refused asylum on 12 September 2002.  The change of policy was announced in answer to a parliamentary question.      
9.	On behalf of ZK, Miss Amanda Jones submits that, in his decision of 3 April 2001, the respondent failed to apply his own policy by failing to grant ELR for four years.  Had four years’ ELR been granted, it would in due course have been converted to indefinite leave to remain (“ILR”).  No explanation has been given why the policy was not applied.  The respondent’s conduct has, it is submitted, been conspicuously unfair in the sense recognised in this court in Secretary for the Home Department v R (Rashid) [2005] EWCA Civ 744.  The policy had not been considered by the respondent when making his decision on 3 April 2001.  It does not appear to have been brought to the attention of the special adjudicator, who recommended one year’s ELR, on 12 February 2002.  It followed that the 2005 representations were a fresh claim within the meaning of paragraph 353, it is submitted.  In support of the article 8 claim, reliance was placed on the respondent’s earlier delay and on an established life in the United Kingdom.  
10.	On behalf of YM, Miss Jones relies on the long delay before the claim for asylum was considered and the lack of explanation for it.    
11.	The effect of delay by the respondent in dealing with claims such as the present has been considered in several cases in this court including Shala [2003] EWCA Civ 233, Strbać [2005] EWCA Civ 848 and Akaeke [2005] EWCA Civ 947.  In HB (Ethiopia) [2006] EWCA Civ 1713, a summary of the propositions said to be binding on this court as a result of those cases was given by Buxton LJ, with whom Latham LJ and Longmore LJ agreed.  The conclusions relevant to the present cases are:
“v)	Where the applicant has no potential rights under specifically immigration law, and therefore has to rely on his rights under article 8(1), delay in dealing with a previous claim for asylum will be a relevant factor under article 8(2), but it must have very substantial effects if it is to influence the outcome [Strbać at §25].
vi)	The mere fact that delay has caused an applicant who now has no potential rights under immigration law to miss the benefit of a hypothetical hearing of an asylum claim that would have resulted in his obtaining ELR does not in itself affect the determination of a subsequent article 8 claim [Strbać at §25].” 
12.	In Rashid, having considered the facts of the case, and earlier cases in which unfairness was so conspicuous as to amount to an abuse of power requiring action by the court, the court held that the claimant was entitled to a grant of indefinite leave to remain in the United Kingdom and made a declaration accordingly.  An extant policy, which would have led to the grant of asylum to Rashid, was not applied and was not notified to the adjudicator, the IAT, or, until a late stage, the courts, when Rashid followed appeal procedures.   
13.	In a judgment with which May LJ agreed, I stated, at paragraph 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.”
14.	Lord Justice Dyson stated, at paragraph 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.”
15.	I turn to the fresh representations which led to the decision now challenged by ZK.  In a detailed letter dated 13 October 2005, ZK’s solicitors referred to the situation in Afghanistan and concluded: 
“In light of all the above evidence, we believe that our client is clearly likely to suffer inhumane and degrading treatment upon his return to Kabul, Afghanistan.  Furthermore, he is likely to suffer undue hardship.”
16.	When considering article 8, the solicitors referred to the length of residence in the United Kingdom.  ZK “has made numerous friends in the United Kingdom and he has established a private and family life with them.  They are an integral part of his life and his removal from the United Kingdom would severely disrupt his relationship with them.  Our client has no family members to return to in his country of origin.”  Mention was also made of the complaint that had the application for asylum been considered within a reasonable period of time, ZK would have been granted four years’ ELR.  
17.	In his decision letter of 20 October 2005, the respondent stated:
“Having considered the reasons for your client’s new asylum claim it has been concluded that they are not substantially different from those raised in his previous claim for asylum.  Furthermore, as the reasons for claiming asylum now have already been considered and rejected in our decision of 29 July 2004, we are satisfied that if your client is returned to Afghanistan, he will not be at risk of treatment contrary to either the 1951 United Nations Convention relating to the Status of Refugees or the European Convention on Human Rights.”
18.	The same solicitors had written a detailed letter on behalf of YM on 2 March 2005.  That too described conditions in Afghanistan and claimed that the situation in Afghanistan is “far from safe.”  YM had a well founded fear of persecution in Afghanistan and would be subjected to inhumane and degrading treatment there.  Under article 8, reliance is placed on the long period of residence in the United Kingdom which has included integration into the community.  The respondent’s decision not to grant ELR to YM at the time the decision was made to refuse him asylum was “illogical, ill reasoned and flawed”.  
19.	In his reply of 14 October 2005, the respondent referred in detail to the current UNHCR material about conditions in Afghanistan.  Reference was made to the article 3 and article 8 claims and it was stated that the decision of September 2002 (wrongly stated as September 2003), upheld by the adjudicator in March 2003, should not be reversed.  The respondent concluded: 
“Because it has been decided not to reverse the decision on the earlier claim and it has been determined that your client’s submissions do not amount to a fresh claim, your client has no further right of appeal.”
20.	In R v Secretary of State for the Home Department ex parte Onibiyo 1996 2 All ER 901, Sir Thomas Bingham MR stated, at page 911, the “acid test” for deciding what were fresh representations: 
“Whether, comparing the new claim with the earlier rejected, and excluding material on which the claimant could reasonably have been expected to rely in the earlier claim, the new claim is sufficiently different from the earlier claim to admit a realistic prospect that a favourable view could be taken of the new claim despite the unfavourable conclusion reached on the earlier claim.”
I have referred to the Convention claims to illustrate the relevant history but there is no real prospect of bringing them within the category of fresh claims under Rule 353 and they have not been pursued by Miss Jones, save by reference to the earlier delay.   
21.	In summary grounds of defence to ZK’s application for judicial review, the respondent referred to the decision of 3 April 2001 and stated: 
“To suggest [the decision is wrong] some 4 ½ years later is, it is respectfully submitted, an abuse of process.  Any judicial review for delay, now, is time barred under CPR 54.4 and those representing [ZK] ought to be aware of the time limits set out therein.”  
22.	ZK’s solicitors did mention, in their letter of 13 October 2005, that the respondent did not, when refusing asylum, give consideration to his own policy on 3 April 2001 when failing to grant four years’ ELR to ZK.  However, the emphasis was upon the situation in Afghanistan, the likely problems on return there and ZK’s integration into the community in the United Kingdom.  Rashid was mentioned only in the context of article 8 and the integration claim.  It was only upon the application for permission to apply for judicial review that the case as now formulated began to appear.  It is now submitted that the legitimate expectation of a grant of ELR for four years was known only after the appeal process had been exhausted in February 2002.  The subsequent discovery of a policy, which gave rise to a legitimate expectation in 2001, gave rise to a fresh claim which required fresh consideration.  
23.	When refusing permission to apply for judicial review, Forbes J stated:
“8.	In this case the claimant had ample opportunity to seek appropriate relief by way of judicial review in respect of any delay in dealing with his original asylum claim at the time that process was going through, but he did not do so.  Rather, he waited until the decision was made on 3rd April 2001 and then, as he was entitled to, he resorted to the appropriate appeal procedure.  I agree with the submission that to suggest some 4½ years later that there has been prejudicial delay in dealing with original claim for refugee status is, in effect, an abuse of process.  In this particular case there are no exceptional features that would justify intervention by the courts because of any earlier delay with regard to the decision on the original claim for refugee status.”
When refusing (on paper) permission to appeal from Forbes J, Buxton LJ stated:
“The judge was plainly right in finding that the essence of the complaint was not in relation to any new facts, but an attempt to challenge decisions now many years old.”
It was “hopelessly out of time.”  I respectfully agree.  
24.	I see no merit in ZK’s claim that the respondent acted irrationally when declining to hold that there was a fresh claim.  The respondent dealt sufficiently and rationally with the points made in the letter.  Moreover, as to delay, it is established that the loss of a hypothetical hearing of an asylum claim that would have resulted in his obtaining ELR does not in itself affect the determination of a subsequent article 8 claim (Strbać cited in HB at paragraph 24(vi)).  
25.	I would dismiss ZK’s application on those grounds and it is not necessary to consider other issues.  I would, however, add that if a claim based on subsequent discovery of a legitimate expectation unknown earlier were to have prospects of success, it would need to be supported by coherent evidence from or on behalf of the appellant quite absent in the present case.  ELR is discretionary relief which may be granted by the respondent when asylum is refused and it is not known why relief from the failure to grant it was not sought earlier.  The solicitors apparently claim that the pre-April 2002 policy became known to them only early in 2004 (though the change of policy was announced in Parliament in July 2002), and the applicant instructed them only much later.  There is no adequate explanation, by way of evidence, for the very long passage of time before the claim for reconsideration was made.    
26.	I would take it further.   The submission that there has been an abuse of power because of conspicuous unfairness has no real prospects of success.  The delay in making the decision and the failure to grant ELR for four years, are far removed from the cumulative errors which gave rise to a finding in Rashid that there had been an abuse of power.  In Rashid, the policy relied on was a policy under which asylum, as distinct from leave to remain, should have been granted.  Serious errors of administration occurred, amounting, in the words of Dyson LJ, to “flagrant and prolonged incompetence”.      
27.	YM’s claim is even less meritorious.  The emphasis in the letter on his behalf purporting to amount to a fresh claim was again on the situation in Afghanistan, the likely problems on return and YM’s integration into the community in the United Kingdom.  The policy as to ELR, which had been abandoned by the time the respondent made his decision in this case in September 2002, was mentioned only briefly and under the heading “Is the interference proportionate?”, an article 8(2) consideration.  The only point which can be made is on delay in making that decision, there being no expectation of ELR when the decision was made.  It is conceded that there can be no fresh and successful article 8 claim, independent of the earlier delay.  The respondent dealt with the application for a reconsideration rationally and sufficiently.  The delay in considering the original claim, (as with the more recent delay in dealing with the letter seeking reconsideration), was unfortunate but it was not challenged at the time and falls very far short of the abuse of power found to have occurred in Rashid.  
28.	I agree with Forbes J and Buxton LJ that these applications are, in substance, attempts to quash decisions of the Secretary of State made, in ZK’s case, in April 2001, and, in YM’s case, in September 2002.  For the reasons given, permission to apply for judicial review cannot be granted and I would dismiss the appeals.
Lord Justice Rix:    			
29.	I agree.  
Lord Justice Longmore: 		
30.	I also agree.