Abdi v Secretary of State for the Home Department

A public authority should ordinarily honour a published policy or promise to those within its scope. Departure requires good reason. In his obiter analysis, Laws LJ held that good administration requires any departure to be required by legal duty or objectively justified as a proportionate response to a legitimate public aim. There is no rigid division between procedural and substantive expectations. The clarity of the promise, reliance, the affected class and the policy context are material considerations.

However, a claimant cannot obtain a windfall from an honest and consistently applied misunderstanding of a policy where he neither knew of nor relied on it. In an immigration case, an Article 8 claim outside the Immigration Rules succeeds only in an exceptional case where proportionality requires that result.

Two conjoined appeals concerned removal to a safe third country, Article 8 of the European Convention on Human Rights and the Secretary of State’s Third Country Family Links Policy.

In Abdi, Harrison J had upheld a certificate that the appellant’s Article 8 claim was manifestly unfounded. The appellant contended that the Secretary of State had irrationally rejected her claimed age and had failed to apply the Family Links Policy, which would have benefited an unmarried minor child of a parent lawfully in the United Kingdom.

In the companion appeal, Nadarajah, Stanley Burnton J had held that the original policy covered a person whose asylum refusal was under appeal, but declined relief because the policy had subsequently been revised. The remaining issue was whether the appellant had an enforceable legitimate expectation that the original policy would be applied.

1. Both appeals were dismissed. Laws LJ gave the principal judgment, with which Thomas LJ and Nelson J agreed.

2. In Abdi, the Secretary of State had been entitled to reject the appellant’s claimed date of birth. A public decision-maker may act irrationally if he fails to make plainly available enquiries about matters that must reasonably be relevant. That principle did not assist the appellant: the Secretary of State had made thorough enquiries, possessed genuine Italian documents, and was entitled to regard the supporting witness evidence as insufficient.

3. The Article 8 challenge also failed. The appellant had entered by deception and had not sought the required entry clearance. Applying Huang, [2005] EWCA Civ 105, an appellant who cannot succeed under the Immigration Rules can succeed on Article 8 grounds only where the particular facts are so exceptional that proportionality requires it. This was not such a case.

4. A stated policy is not optional merely because it uses expressions such as “normally” or “broadly speaking”. A public authority must generally apply it to those for whom it is intended, unless there is a reasoned justification for departure. That proposition did not assist Abdi because the Secretary of State had reasonably concluded that she was not a minor and the policy therefore did not apply.

5. In Nadarajah, the appellant fell within the original policy on its proper construction. Nevertheless, the Secretary of State had honestly and consistently applied his understanding of it, and the appellant did not know of or rely upon the policy when the relevant decision was made. Refusing the benefit of the unrevised policy was neither unfair nor disproportionate.

6. Laws LJ’s broader observations were expressly obiter. Legitimate expectation is an aspect of good administration. A public body should honour a promise or practice unless departure is required by legal duty or is a proportionate response to a legitimate aim pursued in the public interest. The same principle governs procedural and substantive expectations; reliance and the specificity of a promise are factors, not fixed preconditions.

• Court of Appeal (Civil Division): dismissed the appellant’s appeal from Harrison J in Abdi and, in the conjoined proceedings, dismissed the remaining policy appeal in Nadarajah.

• Administrative Court: Harrison J, on 5 December 2003, upheld the certificate in Abdi. Stanley Burnton J, on 2 December 2002, held that the original Family Links Policy covered the appellant in Nadarajah, but declined to quash the decision because of the revised policy.

• Earlier Court of Appeal proceedings in Nadarajah: the Article 8 certificate was quashed in [2003] EWCA Civ 840; the detention appeal was dismissed and the policy issue adjourned in [2003] EWCA Civ 1768.