Immigration

Application for asylum - violence against women as a group by non-state agents - concession before special adjudicator that applicant had no qualifying convention reason for refugee status - adjudicator's determination undermined by subsequent House of Lords decision - case remitted for rehearingR (Ivanauskiene) v Special Adjudicator: CA (Lords Justice Schiemann, Mance and Rix): 31 July 2001The applicant claimed asylum as a refugee on the basis that she feared persecution by her ex-husband in Lithuania, claiming that there had been and would continue to be a failure by the state authorities in Lithuania to afford her protection; that because she was a member of a particular social group, namely women in Lithuania, and that the degree of the failure by the Lithuanian authorities to protect her was so great she was entitled to seek the protection of the international community as a refugee under the Geneva Convention.Before the special adjudicator the applicant conceded, in the light of the decision of the Court of Appeal in Ex parte Shah [1998] 1 WLR 74, that she could not show that the persecution was for a convention reason.

The House of Lords in R v Immigration Tribunal, ex parte Shah [1999] 2 AC 629, decided after the date of the hearing before the special adjudicator but before the decision was given, reversed the decision of the Court of Appeal, holding that all the women in a country might be regarded as a particular group.

The adjudicator, having found that the applicant was at risk of persecution, recommended that there were 'very strong compassionate circumstances' for granting exceptional leave to remain in the UK.

A fresh claim for exceptional leave to remain was refused by the secretary of state notwithstanding the recommendation of the adjudicator.

On 16 April 1999 the Immigration Appeal Tribunal dismissed the applicant's appeal.

The applicant appealed against the refusal of Mr Justice Cresswell on 13 December 2000 in judicial review proceedings to quash the decision of the Immigration Appeal Tribunal and the refusal of a claim for exceptional leave to remain in the UK by the Secretary of State for the Home Department made on 30 June 2000 in fresh proceedings.Hugh Southey (instructed by Kay & Co) for the applicant; Khawar M Qureshi (instructed by the Treasury Solicitor) for the secretary of state.Held, allowing the appeal and quashing the decisions of the tribunal and the secretary of state, that a special adjudicator was bound to apply the law as stated by the Court of Appeal; that if the House of Lords thereafter declared that the law was different, then it might be apparent that the adjudicator had misapplied the law; and that an ability to make a fresh claim in writing before the secretary of state following a change in the law was not a satisfactory substitute for having a proper appeal before a special adjudicator which Parliament had prescribed as the mechanism for having such matters tested.