R v Secretary of State for the Home Department, Ex parte Asif Mahmood Khan (Asif Mahmood Khan, Ex parte)

A public authority which represents that it will determine applications by a stated procedure and stated criteria creates a legitimate expectation that it will do so. It must act fairly and implement that representation unless its public duty or an overriding public interest justifies departure, after the affected person has had a proper opportunity to make representations.

An administrative discretion remains judicially reviewable even where it derives from the common law and is not governed by statutory rules. A decision may be quashed where the authority misdirects itself by disregarding its announced criteria or relying upon an unannounced consideration which, according to those criteria, was irrelevant.

The appellant, who was settled in the United Kingdom, sought temporary entry clearance for his nephew from Pakistan so that he and his wife could adopt the child under United Kingdom law. A Home Office circular described four relevant conditions and a procedure involving inquiries through the Department of Health and Social Security and local social services.

The prescribed procedure was not completed. Entry was refused by reference to paragraph 46 of the Immigration Rules and the absence of serious and compelling considerations making exclusion undesirable. The Secretary of State also treated the natural parents’ inability to care for the child as material, although the circular did not mention that requirement.

Stephen Brown J dismissed the application for judicial review. The central issue on appeal was whether departure from the published procedure and criteria was unfair or unreasonable and therefore invalid.

1. By a majority, Parker and Dunn L.JJ., Watkins L.J. dissenting, the appeal was allowed. The refusal of entry clearance was quashed, the order below was set aside and the appellant was awarded costs.

2. Per Parker L.J., the Home Office circular gave the appellant a reasonable expectation that its stated procedure would be followed. It also indicated that temporary entry clearance would be granted if the Secretary of State was satisfied that the intention to adopt was genuine, the child’s welfare was assured, a United Kingdom court was likely to make an adoption order, and an intending adopter was domiciled here. The natural parents’ inability to care for the child was neither stated as a criterion nor made the subject of inquiries.

3. A public authority must exercise a common-law discretion fairly. The procedural legitimate-expectation principle in Attorney General of Hong Kong v Ng Yuen Shin [1983] 2 AC 629 correctly stated English law and was applicable. An authority which has promised to follow a procedure should implement it so long as this does not interfere with its public duty. A changed policy could be applied to the appellant only after he had received a full opportunity to make representations and the Secretary of State had seriously considered whether an overriding public interest justified departure.

4. Per Dunn L.J., the circular effectively established the Secretary of State’s own criteria for the decision. The refusal relied upon the natural parents’ ability to care for the child, a consideration which the circular did not identify as relevant. The Secretary of State therefore misdirected himself and acted both unfairly and unreasonably under the principles in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

5. The policy concerning children already adopted abroad did not answer the case. Such a child sought settlement under an adoption governed by potentially different safeguards. A prospective adoptee sought temporary admission, with permanent status dependent upon an adoption order made by a United Kingdom court.

6. Watkins L.J. dissented. He regarded the circular as guidance rather than an undertaking. In his view its listed conditions were prerequisites to the exercise of discretion, not an exhaustive statement of the matters which the Secretary of State could consider, and the omitted inquiry was immaterial to the refusal.

1. Court of Appeal: By a majority, allowed the appeal, quashed the refusal of entry clearance, set aside the order below and awarded the appellant costs.

2. High Court, Queen’s Bench Division (Divisional Court): Stephen Brown J dismissed the application for judicial review and certiorari on 23 May 1983. No citation is stated in the judgment.