Abdi v Secretary of State for the Home Department

A concessionary immigration policy that has not been laid before Parliament is not part of the immigration rules and creates no freestanding entitlement to admission. Where an application is made outside the rules, the statutory appeal jurisdiction does not permit a merits review of the Secretary of State’s refusal to depart from them.

However, a decision may be unlawful if the Secretary of State fails to act consistently with established administrative law principles, including a published policy, or proceeds on a material misapprehension of fact. A later policy statement cannot ordinarily create a legitimate expectation concerning an earlier application. Where the decision is unlawful but the outcome is not inevitable, the proper course is reconsideration by the Secretary of State rather than substitution by the appellate court.

The Secretary of State appealed to the Court of Appeal against an Immigration Appeal Tribunal determination dated 15 December 1994. The Tribunal had dismissed an appeal concerning the refusal of entry clearance to eight Somali relatives seeking to join a Somali refugee in the United Kingdom. The refusal had been made on 3 August 1992 under the immigration rules, with exceptional admission outside the rules also considered.

The adjudicator had found that the decision was not in accordance with the law because the Secretary of State had failed properly to apply the Somali family reunion policy. The Tribunal additionally relied on the earlier decision in Ali and treated family unity as falling within the immigration rules. The central issues were the effect of paragraph 21 of HC 251, the scope of the statutory appeal jurisdiction, the status of the published policy, and the appropriate remedy.

The Court of Appeal unanimously allowed the appeal. Peter Gibson LJ gave the judgment, with Otton LJ and Sir Roger Parker agreeing.

1. Paragraph 21 of HC 251 required the Secretary of State to take full account of the Refugee Convention and Protocol and prohibited action contrary to the United Kingdom’s obligations. Those instruments contained no obligation concerning family unity. The Final Act recommendation was not itself a Convention provision or binding obligation. The Tribunal’s reliance on Ali was therefore erroneous.
2. The Somali family reunion policy in the letter of 17 May 1990 had not been laid before Parliament under section 3(2) of the Immigration Act 1971. It was not part of the immigration rules or a parallel source of rights. Reliance on it amounted to a request for the Secretary of State to exercise discretion outside the rules.
3. Under section 19(2), the Secretary of State’s refusal was not reviewable on its merits under section 19(1)(a)(ii), because the refusal was in accordance with paragraphs 52 and 78 of HC 251 and the applicants had sought a departure from those rules. R v Secretary of State for the Home Department ex parte Khan was a judicial review decision and did not determine the statutory section 19 jurisdiction.
4. The court proceeded on the footing, supported by R v Immigration Appeal Tribunal ex parte Bakhtaur Singh and similar comments in Malhi v Secretary of State for the Home Department, that failure to comply with established administrative or common law principles, including failure to give effect to a published policy, could make a decision not in accordance with the law under section 19(1)(a)(i). The 1990 policy promised only exceptional consideration of dependent members of the refugee’s immediate family unit, not admission. The 1993 letter could not retrospectively alter the applicable policy or create a legitimate expectation.
5. The Secretary of State had considered the policy but had proceeded on the mistaken view that the respondents were not dependants. Dependency was material to the policy’s application. The adjudicator’s factual finding, upheld by the Tribunal, therefore established an error of law.
6. Substitution was inappropriate because admission was not inevitable. The matter was remitted to the Secretary of State to reconsider the application on the true facts and in accordance with the policy.

1. Court of Appeal (Civil Division): allowed the Secretary of State’s appeal and remitted the application for reconsideration.
2. Immigration Appeal Tribunal: on 15 December 1994 dismissed the Secretary of State’s appeal, applied Ali, and held that the respondents should be admitted under the rules.
3. Adjudicator: on 31 March 1994 found that the refusal of entry clearance was not in accordance with the law because the Somali family reunion policy had not been properly applied.