Gashi, R (on the application of) v Secretary of State for the Home Department

A public authority must apply its published policy according to its true meaning. It cannot replace that meaning with a preferred interpretation merely because the alternative appears administratively convenient or supports immigration-control objectives. Under the 2002 safe-third-country policy, a dependant who makes a distinct asylum claim in her own right remains an asylum seeker prior to an initial decision on that claim, even if she was previously included as a dependant in another claim. Where the policy says claims would normally be considered substantively in specified family circumstances, the Secretary of State must first exercise that discretion on the correct construction of the policy.

The claimant, an ethnic Albanian from Kosovo, challenged the Secretary of State’s refusal to consider his asylum claim substantively before returning him to Italy under the Dublin Convention. His wife’s asylum appeal remained outstanding, while his minor daughter had made a separate asylum application in her own name which had not received an initial decision.

Following a change in the Secretary of State’s family-ties policy, the claimant argued that his daughter was still in the United Kingdom as an asylum seeker prior to an initial decision. Permission was granted on one ground after an earlier judicial review application had been withdrawn. The central issues were the true construction of the policy, whether the Secretary of State’s alternative construction was reasonably open to him, and the scope of any residual discretion.

1. Construction of the policy. Rule 349 of the Immigration Rules (HC395) recognised two situations. A dependant may be included in the principal applicant’s claim, or may claim asylum in his or her own right. The latter claim may produce refugee status rather than merely dependant leave. An unmarried minor child making an asylum claim in her own right is therefore in the United Kingdom as an asylum seeker until the Secretary of State makes an initial decision on that application.
2. The claimant’s daughter’s later application was distinct from her mother’s earlier claim. The refusal of the mother’s application, and the consequential refusal of the children’s applications as dependants, did not amount to an initial decision on the daughter’s separate asylum claim. The policy’s purpose, including the principle of family unity, supported that construction.
3. The Secretary of State’s alternative interpretation was not reasonably open to him. Although he could consider the risk of abuse and the integrity of immigration control, those concerns did not permit him to supplant the plain meaning of the policy. The daughter’s application could not properly be characterised as a duplicate or drip-feed application without determining its substance.
4. The policy conferred a discretion because substantive consideration was expressed to occur “normally”. However, the Secretary of State had not exercised that discretion on the basis that the policy applied to the claimant’s circumstances. The court could not predict the outcome or usurp the Secretary of State’s function by ordering substantive consideration itself.
5. The application for judicial review therefore succeeded. The decision of 30 July 2002 was quashed, and the Secretary of State was required to reconsider the claimant’s application in accordance with the policy as construed by the court.

The judgment records that permission for the second judicial review application was granted by Wilson J on 7 February 2003 on one ground. The present court determined the claim at first instance and quashed the Secretary of State’s decision.