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

The ordinary rule is that an asylum decision is reconsidered by reference to circumstances existing when the fresh decision is made. An exceptional departure may be required where the claimant’s present position results from the public authority’s unjustified failure to apply an established policy when it should have done so.

Detrimental reliance is not a legal precondition to relief for an unfair departure from policy. Fairness, consistency, equality of treatment, good administration and moral detriment may be sufficient, particularly where comparable applicants received the benefit of the policy.

The claimant, an Iraqi Kurd, was refused asylum on the basis that he could relocate to the Kurdish Autonomous Zone. The Secretary of State later accepted that an established policy should have prevented reliance on internal relocation from government-controlled Iraq, and that applying the policy at the relevant time would have resulted in refugee status and indefinite leave to remain.

Comparable applicants, Maghdeed and Anwar, were granted refugee status before the Iraq war. The claimant’s reconsideration was delayed until after the change in circumstances. The Secretary of State then maintained the refusal, relying on the claimant’s lack of a current need for asylum. The central issue was whether that decision was invalid for unfairness, breach of legitimate expectation or misuse of policy.

1. Decision quashed. The letters of 16 January and 5 August 2004 refusing refugee status and indefinite leave to remain could not stand.
2. The normal public law principle is that, after a decision is quashed or reconsidered, the decision-maker considers the circumstances prevailing at the time of the fresh decision. In asylum cases, [1996] Imm AR 97 establishes that the relevant circumstances are ordinarily those at the date of the appellate hearing.
3. That principle does not permit the Secretary of State to rely on circumstances produced by his own unjustified failure to apply an established policy. Had the policy been applied when the claimant’s application was considered, he would have received refugee status and indefinite leave to remain. The Secretary of State could correct the error, but could not use the subsequent change in Iraq to deprive the claimant of the benefit he would otherwise have obtained.
4. The policy was general and unqualified. Its non-application was unexplained. The claimant’s case was accepted to be precisely comparable with those of Maghdeed and Anwar, who received refugee status before the war. That produced arbitrary inequality of treatment and outcome.
5. Detrimental reliance was not a necessary legal requirement. It was nevertheless materially relevant to fairness. The claimant’s lack of awareness was attributable to the Home Office’s failure to publicise the policy, and his prolonged uncertainty, restricted circumstances and mental stress constituted relevant moral detriment.
6. The combination of the unexplained failure to apply the policy, unequal treatment and detriment amounted to such unfairness as to constitute a misuse of power. The court considered that remittal was inappropriate. The only proper outcome was refugee status with concomitant indefinite leave to remain, given by declaratory relief rather than a mandatory order. Costs were awarded, and permission to appeal was granted.

First-instance judicial review. The court quashed the decisions communicated on 16 January and 5 August 2004, granted declaratory relief, awarded costs and granted permission to appeal.