subject: Withdrawal of R(S) policy dealing with asylum claims which may have lost the benefit of an ELR policy as a result of delay [print this page] Withdrawal of R(S) policy dealing with asylum claims which may have lost the benefit of an ELR policy as a result of delay
This is appears to be in response to therecent decision in R (on the application of K) v Secretary of State for the Home Office [2010] EWHC 3102 (Admin): In a previous case - R (on the application of S) v Secretary of State for the Home Department [2007] EWCA Civ 546 - the court held that the Secretary of State for the Home Office (SSHO's) decision to put certain asylum applications on hold' was unlawful. The government policy formulated in response to that judgment was intended to deal with those affected by the delay in dealing with their applications. It was held that this policy could apply to someone who was outside the UK.
K applied for consideration under the R(S) policy. The SSHO refused his application, stating that the policy was not intended for those who were not present in the UK. K had applied for asylum in the UK in 1999. There was a delay in dealing with his application due to the SSHO's decision in 2002 to put pre-2001 asylum applications on hold', in order to meet new government target dates by which to process later applications. K was removed to Afghanistan. Judicial review of the decision to refuse K's asylum application in the present case succeeded for two reasons. The R(S) policy was a current policy, and the SSHO was wrong to maintain that K was not eligible for theR (S)policy because he was outside the UK.
K's claim to refugee status was that he and his family had been members of the Khalq Democratic Party/PDPA in Afghanistan. The Taliban employed him as a doctor but in 1999 K's brother was hanged by them. Subsequently K refused to assist the Taliban and fled Afghanistan. Between 1999 and 2004, the UK policies applicable to failed asylum seekers from Afghanistan changed. Whereas in 1999 the norm was to grant a credible applicant indefinite leave to remain, by 2002 unsuccessful applicants were not granted any kind of leave to remain.
The R(S) policy did not explicitly exclude those outside the UK. As such the decision-maker was found to have failed to take account of a relevant consideration in ruling out the applicability of the policy. Whilst earlier drafts of the policy had made presence in the UK a condition of the policy, the final published version did not make that clear. A reasonable person reading the final policy document would understand that it applied to applicants outside the UK.
Given K had delayed applying, it made it more difficult to establish unfairness (R (on the application of ZK (Afghanistan)) v SSHO [2007] EWCA Civ 615 andR (on the application of S) v SSHO [2009] EWCA Civ. However, this did not defeat the appeal. The policy on which he relied was current and his application was made within two months of its publication.
The SSHO's decision was set aside and remitted for reconsideration so K might be granted leave to enter the UK, or entry clearance, such that his case could be considered under the R(S) policy.
