Case No: C4/2008/1010
Neutral Citation Number: [2008] EWCA Civ 1139

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION, ADMINISTRATIVE COURT 
(MR JUSTICE SAUNDERS)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 29th September 2008

Before:

LORD JUSTICE BUXTON
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Between:

	AL-AZZAWI
	Appellant	
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SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Respondent	

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Mr T U Cooray (instructed by Messrs Lawrence & Co) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment
Lord Justice Buxton:

1.	This is a renewed application for permission to move for judicial review, permission having been refused by Saunders J and also on renewal by Sir Robin Auld.  Despite the views of both of those learned judges, which of course I view with great respect, I think this is a case in which permission should be granted.

2.	I think the matter is not appropriate to proceed in the Court of Appeal so the substantive application will proceed in the Administrative Court.  What I say now is intended for the guidance of the judge who considers the matter in that court, and of course in no way binds him.  I do not need to set out the facts but directly to the matter in issue.

3.	The Home Office refusal letter of 23 January 2007 dealt with the matter under two heads: one was in respect of the issues arising from internal flight; and secondly, the issue arising from the recent decision of the court in R (A, H and AH) v SSHD [2006] EWHC 526 (Admin) .  

4.	For the reasons that the Secretary of State sets out, the question of internal flight so far as the Kurdish region is concerned does not arise in this case because in the Secretary of State’s view and that of the adjudicator the application failed in any event because no well-founded fear of persecution had been established. That leaves the second question, as to whether the applicant should have been given the benefit of the special policy even though his case was determined after that policy had expired.  

5.	The Secretary of State said in respect of the first refusal:

“Although the first refusal falls within the criteria dates, regrettably at the time of the initial decision the Secretary of State disputed he is from Iraq and this date cannot be considered.”

That is repeated, although without the expression of regret, in respect of the matter with which I am concerned, that is to say the refusal of exceptional leave to remain.  I found those statements difficult to understand, and in particular the last phrase “this date cannot be considered” but what the Secretary of State appears to be saying is that because of the error that he, the Secretary of State, made, the case does not fall within the jurisdictional criteria.

6.	It appears to be accepted by the judge below that judicial review would only be available of that decision if it could be established that the case was one of “conspicuous unfairness”.   That is not a very easy concept to deal with; and in any event, as Mr Cooray has argued and I would respectfully think correctly, the complaint in this case is not so much of unfairness between one case and another, which was the way in which it was allowed to appear before Saunders J, but more that the decision is irrational by reason of a fundamental error of fact made by the decision maker, that is to say, the issue of whether or not this gentleman is from Iraq at all.  Such an error is now recognised as potentially a ground for judicial review, particularly in the light of the guidance to be found in the case in this court of E v SSHD [2004] QB 1044, in particular in the judgment of Carnworth LJ, in paragraph 62 to 63 of that determination.  In my view it is that basis that is potentially in issue in this case.  There of course are significant difficulties for the claimant, which Mr Cooray will explain to him, including the question set out by Carnworth LJ in paragraph 63(3) of his judgment of whether the claimant, and I would think in that context also his advisors, could fairly be held responsible for the error.  But that is something that needs to be debated inter parties on the basis that, potentially at least, the Secretary of State should not be able to rely on what he has agreed is his own error to change the jurisdiction to grant relief that otherwise would be available.  

7.	There are of course other issues, including whether, even if the Secretary of State made an irrational decision on the original occasion, it is still appropriate, in the light of conditions now prevailing in Iraq, to allow the applicant the relief that he seeks.  But these, it seems to me, are properly arguable matters that should be argued before a judge of the Queen’s Bench Division on a substantive inter parties application for judicial review.

Order: Application granted