I was delighted last week to receive an email from Professor John Fitzpatrick of Kent Law School informing me that AR of WM (DRC) and AR (Afghanistan) [2006] EWCA Civ 1495 (the leading case on fresh asylum claims) fame has been granted a residence permit.

Here is how it all started…

Catherine Carpenter from Kent Law Clinic just didn’t give up on AR despite my initial pessimism. New evidence corroborated by an expert was submitted. Rabinder Singh QC then sitting as a deputy judge granted permission. Until then the case had been conducted on a pro bono basis. Hammersmith and Fulham Law Centre then took up the mantle under Sheona York who is now solicitor at Kent Law clinic. The final step of the journey was taken by Zofia Duszynska, solicitor at Hammersmith and Fulham Law Centre.

Coincidentally, WM of WM (DRC) fame also started life as a pro bono case, but for BID. He has now been granted refugee status. Margaret Phelan appeared for WM at the bail application and then inveigled Jo Swaney, formerly solicitor at Fisher Meredith and now Brighton Housing Trust, into acting for him.

If it were not for dedicated lawyers going above and beyond the call of duty these cases would have never begun. If it were not for organisations like Kent Law Clinic and BID these refugees would have been refouled. If it were not for access to the courts by way of judicial review, there would be no forum for challenging template-style decisions. If it were not for the availability of public funding these cases would not have progressed through the courts.

I have had two clients in the last three months whose asylum claims succeeded having been found to be fresh claims. In both cases, a stay had been obtained at the eleventh hour from a Court of Appeal judge to prevent removal by way of charter flight to Sri Lanka. I often wonder how easy it is to get it wrong in an asylum case and how precarious are the fates of asylum seekers. One judge may take the view that anyone who lawfully leaves a country without apprehension is not genuinely at risk. Another may take the view that the role of an agent is to secure safe exit. Both are legitimate findings reached on the same facts. One Appellant may go to Tribunal room 5 and win and another may go to 8 and lose. Precarious. But access to the courts by way of judicial review and by way of funding means that we can nonetheless right wrongs. At some point, even as Sir Stephen Sedley says, on the steps of the plane:

"it is necessary also to say that not every last-minute challenge to removal is an abuse. In open court we considered the situation of a prominent politician in whose home country a coup d’état occurs on the eve of his removal, arguably placing his life in jeopardy. Mr Tam reassures us that in such a case the Secretary of State would not need to receive a valid appeal or legal challenge: he would stay his hand anyway. I have no doubt that he would if he shared the fears of the individual concerned. But if he did not, the simple right to give notice of appeal under section 65(1) will not be there if Mr Tam is right. The individual’s only hope will be to have instant access to lawyers with the know-how and resources to alert the Queen’s Bench duty judge before the plane leaves. I do not accept a reading of the statute which lets people’s lives and safety dangle by such threads".

R (on the application of Kariharan & Anor) v Secretary of State for the Home Department [2002] EWCA Civ 1102, [2002] 3 WLR 1783, [2002] EWCA Civ 1102, [2002] INLR 383, [2003] Imm AR 163.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

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