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Supreme Court delivers important judgment on EU law, judicial review and the Rashid principle

DATE: 24 Jun 2015

On Wednesday 24 June 2015, the Supreme Court (Lord Neuberger, Baroness Hale, Lord Wilson, Lord Hughes and Lord Toulson) handed down judgment in the joined appeals of AA (Afghanistan) v. Secretary of State for the Home Department and TN and MA (Afghanistan) v. Secretary of State for the Home Department [2015] UKSC 40. The cases concerned the lawfulness of section 83 of the Nationality, Immigration and Asylum Act 2002 (the "2002 Act"), which provided for a right of appeal against the refusal of asylum only where leave to remain had instead been granted for longer than 12 months. The purpose of the provision was to avoid appeals being considered where the Secretary of State was to take a decision on a fresh application within a short time. The appellants alleged that section 83 was incompatible with the right to an effective remedy under Article 39 of Directive 2005/85/EC (the "Procedures Directive") and the best interests of the child principle because of the delay it caused in the consideration on appeal of an appellant's case. TN and MA also contended that the principle in Ravichandran v. Secretary of State for the Home Department [1996] Imm AR 97 was wrong and that they should have been granted "corrective relief" under the principle in R (Rashid) v. Secretary of State for the Home Department [2005] EWCA Civ 744, [2005] Imm AR 608. The Secretary of State argued that section 83 was compatible with the Procedures Directive, Ravichandran remained good law and that the Supreme Court should hold that Rashid was no longer good law. 

The appeals were dismissed. Lord Toulson, with whom the other Supreme Court Justices agreed, held that the right of appeal under section 83 was compatible with the requirements of Article 39 of the Procedures Directive. In those circumstances, it was not necessary to consider whether judicial review was also an effective remedy. The Ravichandran principle, whereby asylum appeals are determined on the basis of the facts as at the time of the appeal, was compatible with EU law and did not need to be revisited. Most significantly, the Supreme Court held that the Rashid principle of "corrective relief" should no longer be followed. It was wrong to require the Secretary of State to grant leave to a person who did not require it. 

The case is important for its examination of the compatibility of the domestic appeals regime and judicial review with EU law in this field. The finding that Rashid should no longer be followed is very significant. The case has represented a highly controversial principle in domestic judicial review for some time and had never previously been examined in detailed by the Supreme Court. 

David Blundell appeared as junior counsel on behalf of the Secretary of State