Abdi v Secretary of State for the Home Department

A rational finding that an applicant falls outside a published policy defeats a judicial review challenge alleging failure to apply that policy. A public authority must generally apply its stated policy to its intended beneficiaries and give a reasoned justification for departing from it. Legitimate expectation did not require retrospective application of an original policy where the authority had honestly and consistently misunderstood its scope, subsequently corrected its wording, and the applicant had placed no reliance on it.

In expressly obiter guidance, the court proposed that promises and established practices should be honoured unless departure is required by legal duty or objectively justified as proportionate to a legitimate public interest aim. Procedural and substantive expectations share that principle. Detrimental reliance is a relevant consideration, rather than an inflexible requirement.

The court heard together appeals by Abdi, a Somali asylum applicant, and Nadarajah, a Sri Lankan Tamil asylum applicant. The Secretary of State proposed returning them respectively to Italy and Germany for determination of their asylum claims. Both relied on family members in the United Kingdom and the Third Country Family Links Policy, which normally provided for domestic consideration of certain applicants’ asylum claims.

Abdi challenged removal directions and certification of her article 8 claim as manifestly unfounded under section 72(2)(a) of the Immigration and Asylum Act 1999. Her claimed age would have brought her within the policy as the minor child of a refugee settled in the United Kingdom. The Secretary of State relied on official documents indicating that she was an adult. Harrison J dismissed her judicial review claim, and she appealed.

Nadarajah’s wife had an outstanding asylum appeal. Stanley Burnton J held that she came within the original policy, but refused to quash the decision because a reconsideration under the revised policy would exclude Nadarajah. Earlier Court of Appeal decisions had separately quashed his human rights certificate and upheld the finding that his detention was unlawful. The remaining question was whether legitimate expectation required application of the original policy despite its subsequent revision.

Both appeals dismissed unanimously. Laws LJ delivered the reasons, with which Thomas LJ and Nelson J agreed.

1. In Abdi, the Secretary of State had made thorough enquiries and obtained genuine official documents supporting the disputed date of birth. A decision-maker might act irrationally by failing to pursue manifestly available enquiries into relevant matters, but no further enquiry was required here. Persistent deception undermined the applicant’s credibility. The reference to conclusive proof, read in context, meant that the witness statements did not outweigh the documents; it imposed no unlawful standard of proof. The court preserved Harrison J’s separate finding that an adjudicator might accept the claimed age, since there was no cross-notice challenging it.

2. Abdi’s article 8 challenge also failed. She had circumvented immigration control and should have sought entry clearance as a refugee’s child in the ordinary way: Mahmood, [2001] 1 WLR 840. Applying Huang, [2005] EWCA Civ 105, an adjudicator could not regard her circumstances as sufficiently exceptional to require admission outside the Immigration Rules. Certification under section 72(2)(a) of the Immigration and Asylum Act 1999 was therefore upheld.

3. The Family Links Policy did not itself invalidate the article 8 certificate. Although the procedural objection to the policy argument might be over-technical, its substance failed independently. The Secretary of State’s reasonable conclusion that Abdi was an adult placed her outside the policy. The Act supplied no separate route for an adjudicator to determine her age for policy purposes. Generally, however, qualifications such as normally did not permit arbitrary departure from a stated policy; departure required reasoned justification. Whether Abdi’s deception could justify disapplication was left open.

4. In Nadarajah, a decision requiring reconsideration could ordinarily be taken under the current legal and factual circumstances, subject to fairness or legitimate expectation. The Secretary of State had honestly and consistently applied his intended interpretation of the original policy. Nadarajah had known nothing of it and had placed no reliance on it before the relevant decision. Refusing the windfall arising from the mistaken interpretation involved no abuse of power and did not require application of the original policy.

5. Obiter: good administration required public authorities to honour promises and established practices unless legal duty required departure or departure was objectively proportionate to a legitimate public interest aim. That approach applied to procedural and substantive expectations alike. Clarity, specific communication, reliance, unequal treatment, honest mistake, maladministration and wider policy implications were relevant considerations, rather than fixed rules. Applying that proposed approach would produce the same result in Nadarajah. Both appeals were dismissed.

• Court of Appeal (Civil Division): In the present judgment, [2005] EWCA Civ 1363 , dismissed both appeals. Nadarajah’s remaining policy appeal had been directed to be heard with Abdi’s appeal.
• Court of Appeal: In Nadarajah, quashed the section 72(2)(a) certificate on 19 June 2003: [2003] EWCA Civ 840 ; [2003] INLR 543 . On 8 December 2003, dismissed the Secretary of State’s appeal concerning unlawful detention and adjourned the policy appeal: [2003] EWCA Civ 1768 ; [2004] INLR 139 .
• High Court, Administrative Court: Harrison J dismissed Abdi’s judicial review challenge on 5 December 2003. Dyson LJ granted permission to appeal on 3 March 2004.
• High Court, Administrative Court: Stanley Burnton J gave judgment in Nadarajah on 2 December 2002. He upheld certification, held the detention unlawful, and declined to quash the refusal to consider asylum domestically despite the Secretary of State’s misinterpretation of the original policy. Permission to appeal was granted by the judge.