Said v Secretary of State for the Home Department

Factual and Procedural Background

The Appellant, a national of Somalia, has resided in the United Kingdom since at least January 2013, with a brief period spent in Italy. He made two unsuccessful asylum applications in the UK, with refusals dated circa August 2013 and 18 September 2015 respectively. Subsequent appeals to the First-tier Tribunal and the Upper Tribunal were dismissed or refused. Between February 2017 and March 2020, the Appellant submitted nine sets of further submissions under paragraph 353 of the Immigration Rules, all negatively decided. On 13 May 2021, he submitted a tenth set of further submissions, which remained under consideration at the time of the impugned decision.

In December 2021, the Appellant applied online for an Application Registration Card ("ARC"). The Secretary of State refused the application by letter dated 28 January 2022, on the basis that the Appellant no longer had an asylum application pending and thus was not entitled to an ARC under paragraph 359 of the Immigration Rules. The Appellant’s solicitors sent a pre-action protocol letter on 24 March 2022, to which the Secretary of State responded on 5 April 2022, maintaining the refusal.

The Appellant then sought judicial review of the Secretary of State’s decision. The High Court dismissed the application, and the Appellant appealed to the Court of Appeal in Northern Ireland.

Legal Issues Presented

1. Whether the Secretary of State fettered her discretion unlawfully by refusing to consider exercising discretion outside the Immigration Rules in relation to the ARC application.
2. Whether the refusal to issue an ARC violated the Appellant’s right to respect for private life under Article 8(1) of the European Convention on Human Rights (ECHR) as incorporated by section 6 of the Human Rights Act 1998.
3. Whether the refusal violated Article 8(1) in conjunction with Article 14 ECHR concerning discrimination based on "other status".

Arguments of the Parties

Appellant's Arguments

• The Secretary of State unlawfully fettered her discretion by adopting a rigid interpretation of paragraph 359 of the Immigration Rules without considering any discretion to grant an ARC outside the Rules.
• The refusal to issue an ARC infringed the Appellant’s Article 8 rights, citing difficulties in daily life, including an incident in a supermarket involving inability to prove identity, and broader claims relating to education and banking access.
• The refusal also engaged Article 14 ECHR by discriminating against the Appellant on the basis of his status as an unsuccessful asylum applicant seeking to re-acquire asylum status.

Respondent's Arguments

• The Secretary of State correctly applied paragraph 359, which only entitles those with pending asylum applications to an ARC; the Appellant did not meet this criterion.
• The Secretary of State did not fetter discretion unlawfully because no request to exercise discretion outside the Rules was made by the Appellant, and there was no obligation to consider such discretion absent notice or request.
• The Appellant’s Article 8 claim was factually and legally insufficient; the supermarket incident was a brief, public event not engaging private life protections under Article 8.
• The Appellant’s status did not amount to "other status" under Article 14, and there was no analogous comparator group to engage discrimination protections.
• The judicial review claim was out of time, as the decision was made on 28 January 2022 and proceedings commenced after the three-month limit without extension.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Odelola v Secretary of State for the Home Department [2009] UKHL 25	Juridical status of Immigration Rules as non-statutory but authoritative administrative practice.	Confirmed that Immigration Rules are not subordinate legislation but derive from prerogative powers vested by statute.
R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33	Immigration Rules have statutory force as derived from the Immigration Act 1971.	Reinforced that the Rules are statutory in effect and clarified the Secretary of State’s discretion under the Act.
R (Munir) v Secretary of State for the Home Department [2012] UKSC 32	Scope of Secretary of State’s wide discretion to grant or refuse leave to enter or remain.	Confirmed broad discretionary powers outside the Rules and the role of administrative policies.
Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60	Legitimacy of administrative policies guiding discretion and non-fettering principle.	Outlined that discretion must be exercised in accordance with policies but not rigidly fettered.
R (Sayaniya) v Upper Tribunal (Immigration and Asylum Chamber) [2016] EWCA Civ 85	Non-fettering of discretion and the concept of “outside the Rules” discretion.	Held that discretion outside the Rules exists but is generally only engaged upon request or clear notice.
R (Beharry) v Secretary of State for the Home Department [2016] EWCA Civ 702	When the Secretary of State’s discretion to act outside the Rules is triggered.	Confirmed discretion outside the Rules is generally contingent on a request from the applicant.
R (AB) v Secretary of State for the Home Department [2018] EWCA Civ 383	Application of “outside the Rules” discretion in asylum claim processing.	Reaffirmed that the Secretary of State is under no obligation to consider discretion outside the Rules absent a request.
British Oxygen Co Ltd v Minister of Technology [1971] AC 610	Public law principle that discretion should not be fettered by rigid policies.	Used as foundational authority for non-fettering doctrine applied to immigration discretion.
R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11	Interaction between discretion and duty to act compatibly with Convention rights.	Confirmed that discretion may become an obligation where Convention rights are engaged.
R (Countryside Alliance) v HM Attorney General [2007] UKHL 52	Scope of Article 8 ECHR private life protection.	Clarified that public activities do not generally engage Article 8 private life protections.
Procurator Fiscal v Brown [2003] 1 AC 681	Limits of Convention rights protections against ordinary life difficulties.	Emphasised that Convention rights do not shield individuals against everyday stress or heartache.
Re Allister’s Application [2022] NICA 15	Application of the ambit test and “other status” in Article 14 ECHR claims.	Used to assess the proximity of the complaint to the core of a Convention right and the relevance of “other status”.

Court's Reasoning and Analysis

The court began by analysing the Appellant’s status under the Immigration Rules and domestic law, concluding that he was not an asylum applicant at the time of the ARC application but rather an unsuccessful asylum claimant seeking to re-acquire asylum status via paragraph 353 further submissions. The court found that paragraph 359 of the Immigration Rules, which governs entitlement to an ARC, applies exclusively to persons with pending asylum applications and does not extend to those in the Appellant’s position.

The court then examined the concept of discretion “outside the Rules,” confirming that the Secretary of State possesses a broad discretionary power under the Immigration Act 1971 to grant leave to enter or remain even where the Rules do not mandate it. However, this discretion is generally only engaged upon explicit request or notice from the applicant. In this case, the Appellant did not provide reasons or supporting material to invite the Secretary of State to exercise discretion in his favour, nor was the Secretary of State otherwise put on notice. Consequently, there was no obligation to consider discretion outside the Rules, and the refusal based solely on paragraph 359 was lawful.

The court rejected the Appellant’s reliance on the Secretary of State’s published guidance as conferring a discretion to issue an ARC for purposes beyond certifying asylum applicant status, noting that such purposes do not align with the Reception Directive or the Immigration Rules.

Regarding the Reception Directive (2003/9/EC), the court held that it applies only to asylum applicants with pending claims and does not extend to unsuccessful applicants making further submissions. Therefore, no discretion arises under the Directive to issue an ARC to the Appellant.

On the Article 8 ECHR claim, the court found the Appellant’s evidence insufficient and the incident described (a brief, public supermarket encounter involving identity verification) did not engage the right to respect for private life. The court emphasised established jurisprudence that Article 8 protects private and family life from state intrusion, not everyday inconveniences or public interactions.

The Article 14 claim failed because the Appellant’s status did not amount to “other status” within the meaning of the Convention, and there was no sufficient analogy with protected groups such as asylum applicants.

Finally, the court addressed the procedural issue of delay, concluding that the judicial review claim was out of time as it was brought more than three months after the decision letter dated 28 January 2022. No extension was sought or justified, and the court exercised its discretion to dismiss on this ground as well.

Holding and Implications

The court DISMISSED the appeal, affirming the decision of the High Court to dismiss the Appellant’s judicial review application.

The direct effect of this decision is that the Appellant remains ineligible for an Application Registration Card under the Immigration Rules and relevant EU law. The judgment clarifies that the Secretary of State’s discretion to grant leave outside the Immigration Rules requires explicit notice or request and cannot be assumed or inferred. No new precedent was established beyond reaffirming existing principles regarding Immigration Rules, discretion, and Convention rights as applied to ARC entitlement.