K’s claim to refugee status was that he and his family had been members of the Khalq Democratic Party/PDPA in Afghanistan.  The Taliban employed him as a doctor but in 1999 K’s brother was hanged by them.  Subsequently K refused to assist the Taliban and fled Afghanistan.  Between 1999 and 2004, the UK policies applicable to failed asylum seekers from Afghanistan changed.  Whereas in 1999 the norm was to grant a credible applicant indefinite leave to remain, by 2002 unsuccessful applicants were not granted any kind of leave to remain.

The R(S) policy did not explicitly exclude those outside the UK.  As such the decision-maker was found to have failed to take account of a relevant consideration in ruling out the applicability of the policy.  Whilst earlier drafts of the policy had made presence in the UK a condition of the policy, the final published version did not make that clear.  A reasonable person reading the final policy document would understand that it applied to applicants outside the UK.

Given K had delayed applying, it made it more difficult to establish unfairness (R (on the application of ZK (Afghanistan)) v SSHO [2007] EWCA Civ 615 and R (on the application of S) v SSHO [2009] EWCA Civ.  However, this did not defeat the appeal.  The policy on which he relied was current and his application was made within two months of its publication.

The SSHO’s decision was set aside and remitted for reconsideration so K might be granted leave to enter the UK, or entry clearance, such that his case could be considered under the R(S) policy.