US (Nepal) v Secretary of State for the Home Department

Lord Justice Sedley:

1. This application made by Ms Kathryn Cronin concerns a Nepalese woman who fled from the employment of a Middle Eastern royal family in this country and initially, possibly on poor advice, sought asylum here. This having failed, she more tenably sought admission under the policy which for a good many years has allowed immigrant workers in her claimed situation to remain here.

2. Immigration Judge Lawrence accepted her claim, but the decision was overset for error of law, and on a reconsideration by Designated Immigration Judge Woodcraft it was dismissed. Although the first ground of appeal is that there was no material error in the first place by Immigration Judge Lawrence, the error which was found relates directly to what is now said to be a mirror-image error by Designated Immigration Judge Woodcraft: that is to say, whether the applicant had been shown by evidence to have been in full-time domestic work immediately before applying for the benefit of the concession.

3. It is Ms Cronin’s submission that the policy guidance, the IDI, governing the concession, although accessible via the Home Office website, was not placed before the second immigration judge and that it would have made a material difference to the outcome if it had been. As Dyson LJ pointed out in refusing permission to appeal on the papers, the IDI is not written in the form of rules and it may therefore be capable of more or less generous application, but he also considered that on any view it required proof from an employer of continuing employment and that there was none.

4. Ms Cronin now submits, with some cogency, that the latter proposition may have been wrong and that there was indeed before the Asylum and Immigration Tribunal written evidence from a current employer relating to the date of the application in 2004. The lacuna found by the second immigration judge was in November 1997 when, following the asylum interview, the application was served with an illegal entrant notice. It is submitted, and I think is arguable, that this was not a relevant date. So seen, the appeal is in my judgment viable. It is arguable rather more fully on all the grounds now set out in the Perfected Grounds of Appeal which Ms Cronin has helpfully put in today and which I give her permission to substitute for the existing grounds.

5. It may be that the Treasury Solicitor will want to consider whether it is necessary for this application to return to the court. If it does, half a day should be adequate before a three-judge court, one of whom may be a High Court judge. Order : Application granted.