In the latest round of the legal saga involving Egyptian dissident Yasser Al-Siri, the Court of Appeal has ruled that the Home Office acted unlawfully in only granting him restricted leave to remain after an earlier First-tier Tribunal decision that he is a refugee. There was, the court found, no fresh evidence allowing the Home Office to get around the First-tier Tribunal’s decision (the Ladd v Marshall test). The case is Al-Siri v Secretary of State for the Home Department  EWCA Civ 113.
The political background to Mr Al-Siri’s case is well documented but, in brief, in 1994 he was convicted by a military court for conspiracy to kill the then Prime Minister of Egypt and was sentenced to death in absentia. One month later, he arrived in the UK and claimed asylum. In one way or another, Mr Al-Siri has been engaged in a battle with the Home Office over his immigration status for the last 27 years. As you can imagine, there was a mass of procedural history (including a trip to the Supreme Court) and the upshot was that the courts had found that Mr Al-Siri was not excluded from the Refugee Convention and, in April 2015, the First-tier Tribunal found he was in fact a refugee.
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Despite being refused permission to appeal, in 2018 the Home Office issued a fresh decision which again refused to recognise Mr Al-Siri as a refugee on the basis of the danger he posed to the UK. This time its decision was based on Article 33(2) of the Convention, which relates to national security, instead of Article 1F(c) of the Convention which deal with crimes against humanity. The decision made reference to social media activity which allegedly “advocated the use of violent jihad” and only granted him restricted leave to remain for six months subject to quarterly reporting and getting permission before changing residence, or engaging in employment or studies.
Mr Al-Siri’s judicial review of that decision was successful in the High Court, which found that the social media activity was already known to the Home Office and the rest of the points taken were merely disagreeing with the First-tier Tribunal’s decision. The High Court applied the test derived from Ladd v Marshall  EWCA Civ 1: that any evidence advanced by the government needed to be “relevant, credible and not previously available with due diligence” to allow it to get around the tribunal’s decision.
In the Court of Appeal
Appealing the High Court decision to quash the grant of restricted leave, the Home Office argued:
- There was no requirement to bring any arguments under Article 33(2) at the time as resisting an asylum claim on any other grounds.
- Since the decision was based this time on Article 33(2), the Ladd v Marshall test did not apply.
- Mr Al-Siri should have challenged the restricted leave decision by appealing to the tribunal, not by way of judicial review;
The Court of Appeal said that it would undermine the appeal system if the Home Office could simply decide not to implement a decision of a tribunal:
The starting point is that an unappealed Tribunal decision is final and binding and must be accepted and implemented by the Home Secretary, unless there is a good basis for impugning that decision. Both the binding nature of the decision and the high hurdle for re-opening it are aspects of the principle of finality. As appears from the authorities, that principle underlies the test (Momin Ali) and the test exemplifies the principle (Saribal): they are two sides of the same coin. The high hurdle is the test in Ladd v Marshall.
Applying that test, Lord Justice Phillips was abrupt about the “new” evidence produced to support the Home Office’s decision:
… in my judgment a decision to make a fresh decision based on the new matters does not even surmount a threshold of rationality. As Irwin LJ put it in the course of argument, there must be something different or of significance in the new material to trigger a new decision, but in this case the new material was, as Mr Husain submitted, ‘less of the same’.
The alternative remedy question was more complicated because Mr Al-Siri’s lawyers had lodged an appeal to the tribunal which was stayed pending the judicial review. It is a well-established principle that judicial review is a remedy of last resort and is incompetent if there is an effective alternative remedy. But Mr Al-Siri’s lawyers contended that, in theory, the Home Office could continue to ignore decisions of the First-tier Tribunal and they would have no option but to appeal again and again in a forum where the decision could not be quashed and no declaration could be granted. The court accepted that argument (reasons in paragraph 91).
The court also pointedly wondered why the Secretary of State would grant refugee status after a second tribunal appeal if it didn’t the first time around. Given the more limited powers of the tribunal, “what would stop her from waiting until she had yet further new material, making a third decision and requiring [Mr Al-Siri] to appeal once more?”. In that respect, the application by analogy of the Ladd v Marshall principle is a sensible one upholding the principle of finality in litigation. After all, the Home Office is not exactly known for its ability to lose graciously.