R v Secretary of State for the Home Department, ex p. Hastrup

Immigration rules conferring a deportation discretion may be supplemented by policy guidance, but the policy must not be applied so rigidly that it fetters the discretion. A general policy against removal where there is a genuine and subsisting marriage and a child may admit exceptional cases. The decision-maker must consider the policy as a whole, have regard to it, and give clear reasons for departing from it. A person’s immigration history remains relevant; repeated and deliberate deception can carry decisive public-interest weight. The court’s task is not to rebalance the merits. The decision will stand unless no reasonable Secretary of State could have reached it.

This was the Secretary of State’s appeal from Mr Justice Hidden’s order of 28 November 1995 granting judicial review of two decisions communicated on 16 May 1994. The respondent had entered and re-entered the United Kingdom using deception, despite an existing deportation order, and later married a woman settled in the United Kingdom and had a child. The Secretary of State proposed removal as an illegal entrant and refused to revoke the order. The central issue was whether he had unlawfully departed from internal policy DP/2/93, which generally discouraged enforcement where a genuine and subsisting marriage and a qualifying child existed, by giving substantial weight to the respondent’s immigration history.

1. Disposition. The Court of Appeal unanimously allowed the appeal, dismissed the cross-appeal, and awarded costs here and below, subject to the stated restriction and legal aid taxation.
2. Discretion and policy. Lord Justice Russell held that Rules 162 and 176 of the immigration rules conferred a wide, effectively unfettered discretion in relation to deportation. The discretion had to be exercised fairly, with regard to the deportee’s interests and all relevant circumstances. The internal policy document had to be read as a whole and alongside the rules. Its general rule against enforcement in specified family circumstances did not make immigration history irrelevant. A sufficiently poor history could constitute an exceptional case.
3. Departure from policy. The principles stated in Grandsden Co. Ltd. and Another v. The Secretary of State for the Environment and Another [1987] P.& C.R. 86 were applied. A lawful policy must be taken into account, but need not be followed rigidly. The decision-maker must understand the policy and give clear and full reasons for departing from it or treating the case as an exception.
4. Application. The Secretary of State considered the respondent’s immigration history, the compassionate circumstances arising from his marriage and child, and the public interest in maintaining immigration control and enforcing immigration laws. Repeated deliberate deception and breaches of immigration controls could justify removal notwithstanding the family circumstances. The decision was not irrational or Wednesbury unreasonable. The respondent had not shown that no reasonable Secretary of State could have reached it.
5. Additional reasoning. Lord Justice Peter Gibson emphasised that a Minister may adopt policy guidance but may not fetter a statutory discretion. A publicly promulgated policy may create a legitimate expectation, as illustrated by R v. Secretary of State for the Home Department, ex parte Asif Khan [1984] 1 W.L.R. 137, but this internal policy did not do so. Lord Justice Hutchison agreed that the exceptional facts justified departure, provided the policy had been considered and reasons given.

• Court of Appeal (Civil Division): On appeal, the court allowed the Secretary of State’s appeal and dismissed the cross-appeal. The judgment is reported at [1996] EWCA Civ 1333.
• High Court: Mr Justice Hidden granted judicial review on 28 November 1995 in relation to the Secretary of State’s decisions to propose removal as an illegal entrant and to refuse revocation of the deportation order.