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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> DS (Afghanistan) v Secretary of State for the Home Department [2006] EWCA Civ 1767 (22 November 2006) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/1767.html Cite as: [2006] EWCA Civ 1767

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No. CC/00330/2004]

		Royal Courts of Justice Strand London, WC2
		22nd November 2006

1. LORD JUSTICE SCOTT BAKER: The applicant is an Afghan. He arrived in this country and applied for asylum on 5 December 2001. Asylum was refused by the Secretary of State on 13 January 2002 on the basis that the Secretary of State doubted that he was an Afghan. The Secretary of State later appreciated that that was an error and had the true position been known the applicant would have benefited from the Secretary of State's policy in force at that time to grant Afghans exceptional leave to remain for a period of four years. That policy did not change until April 2002 when the exceptional leave to remain was reduced to a period of one year. The applicant appealed and on 20 July 2004 his appeal was rejected on both asylum and human rights grounds. He appealed again to the AIT who heard the appeal as a reconsideration hearing under the transitional provisions.
2. The AIT found no error of law and upheld the original decision. The argument that has been advanced before me by Ms Amanda Jones, who appears for the applicant on this renewed application, is that the AIT did not give adequate consideration to the arguments that were advanced and accepted in the cases of Mugisha [2005] EWHC 2720 (Admin) and Rashid [2004] EWHC 2465 (Admin). The arguments that were advanced in those cases were that circumstances can arise whereby it is conspicuously unfair not to deal with two applicants whose circumstances are identical in the same way. The point advanced is this: that it was the Secretary of State's error that he believed that the applicant was not Afghan. Had he appreciated the true situation then the applicant would have received exceptional leave to remain.
3. It is submitted that the error of law is identified in paragraph 16 of the tribunal's decision in the present case. What the tribunal there said was this:

"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 applicant about that concession. He notes that he was asked by the applicant's representative to take that into account when considering proportionality under Article 8. In 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 arrival. He expressly states that he has taken into account the submissions made to him.

4. Ms Jones submits that there are a number of errors in that paragraph. First of all what was material was the policy, not on arrival but at the date of the decision, and she submits more significantly this was not a case where proportionality ought to have come into consideration at all because of public law principles, that in the particular circumstances it was conspicuously unfair not to have given the applicant exceptional leave to remain under the policy which applied to all Afghan applicants at the time, and therefore the balancing consideration under Article 8(2) of maintaining immigration control was not the important matter in this case that it ordinarily is when one takes into account Article 8 issues. Therefore she submits that it is, putting it at its lowest, very arguable that the Article 8 claim should in the circumstances have succeeded bearing in mind the length of time that the applicant has been in this country and the roots that he has put down.
5. I have given this matter anxious consideration. I had a clear provisional view when I came into court that the matter ought to be decided on the basis upon which Auld LJ refused permission on paper, but I have been persuaded by Miss Jones' admirable argument that there is here a real prospect of an appeal succeeding, notwithstanding the difficulties that are ordinarily in the way of an applicant in respect of an Article 8 claim.
6. Accordingly, I grant permission to appeal.

Order: Application granted.