The High Court has rejected a challenge to the way permission-to-remain decisions are made under section 49 of the International Protection Act 2015, holding that International Protection Officers can make those decisions when acting separately as officers of the Minister for Justice.
The case was brought by ASA, a Nigerian national whose application for international protection was refused. On 2 March 2020, he was notified that an International Protection Officer had recommended against refugee status or subsidiary protection and that the Minister had refused permission to remain. A statement of reasons was signed by a case worker in the International Protection Office. ASA was granted leave to seek judicial review on 8 July 2020, asking the High Court to quash the permission-to-remain refusal.
ASA argued that an officer appointed as an International Protection Officer should not also make the Minister’s section 49 decision. He said the dual roles blurred the distinction between international protection decisions and decisions about permission to remain on humanitarian grounds. He also argued that the decision contained an error on its face because the statement of reasons was signed by an International Protection Office case worker.
The Minister’s evidence described separate units for examining international protection claims and deciding permission-to-remain applications. Different staff worked in the units, and a separate case worker handled any review after an appeal tribunal affirmed a negative protection recommendation and the applicant submitted relevant new information. The Minister’s evidence was that staff deciding permission to remain acted in their role as officers of the Minister, not as International Protection Officers.
Ms Justice Tara Burns held that the 2015 Act did not expressly or by necessary implication prevent International Protection Officers from making section 49 decisions. Applying the Carltona principle, she found that the Minister’s functions could be exercised by suitably experienced officials, provided those functions did not conflict with their separate statutory duties. The judge found no such conflict: protection and permission-to-remain decisions apply different criteria, and the permission decision is not an appeal from the protection decision.
The court also rejected the claim that the arrangement blurred the roles. On the signature issue, the judge noted that the case worker was described as a case worker, not as an International Protection Officer, and that the accompanying notice expressly said the Minister had refused permission to remain. She found no error on the face of the record.
The judgment, delivered on 16 April 2021, refused the relief sought and ordered ASA to pay the respondent’s costs. It did not quash the refusal of permission to remain.