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

A public authority’s general policy gives those affected an objectively legitimate expectation that it will be applied consistently. Awareness of the policy is unnecessary. A prolonged and unexplained failure to apply such a policy, coupled with materially unequal treatment of comparable cases, may amount to conspicuous unfairness and an abuse of power.

However, refugee status under the Refugee Convention of 1951 depends on a current well-founded fear of persecution. Where that criterion is no longer met, the court should not declare entitlement to refugee status. It may instead grant appropriate public-law relief, including a declaration supporting indefinite leave to remain.

The Secretary of State appealed from Davis J’s decision on judicial review. The claimant, an Iraqi Kurd, had sought asylum in December 2001. A Home Office policy then in force meant that internal relocation to the Kurdish Autonomous Zone should not have been relied upon to refuse his claim.

The policy was not applied during the original decision, the adjudicator’s appeal, or the application for permission to appeal to the Immigration Appeal Tribunal. Two materially identical applicants were later granted refugee status after the policy emerged. The claimant’s reconsideration was delayed until conditions in Iraq had changed, by which time the Secretary of State lawfully found that he faced no current risk of persecution.

The central issue was whether the earlier policy failure, unequal treatment and delay made the later refusal unlawfully unfair despite the absence of a current entitlement to refugee status.

Decision

1. The appeal was dismissed subject to a variation of relief. Pill LJ gave the leading judgment, with which May LJ agreed. The court quashed the declaration that the claimant was entitled to refugee status, but upheld relief requiring a grant of indefinite leave to remain.
2. A general asylum policy committed the Secretary of State to apply it to affected claims. The claimant had a legitimate expectation of that treatment even though he did not know of the policy. Legitimate expectation was an application of the wider public-law doctrine of abuse of power, and the court had to determine whether frustration of the expectation was sufficiently unfair to be a misuse of power.
3. The repeated failure to apply or reveal the policy, its persistence throughout the administrative and appellate process, the absence of a satisfactory explanation, and the more favourable treatment of materially identical applicants together amounted to conspicuous unfairness. Bad faith was not alleged, but was unnecessary. The Secretary of State’s later reliance on changed conditions therefore involved an abuse of power.
4. That conclusion did not permit the court to confer refugee status. Under Article 1A(2) of the Refugee Convention of 1951, as explained in Ravichandran [1996] Imm A R 97 and Adan v Secretary of State for the Home Department [1999] 1 AC 293, entitlement depended on a current well-founded fear of persecution. The claimant did not satisfy that condition when relief was determined.
5. The appropriate remedy was a declaration that the claimant was entitled to indefinite leave to remain, available under the Secretary of State’s powers in the Immigration Act 1971. It remedied the abuse without creating Convention refugee status or its consequential rights.

Dyson LJ agreed in the result and substantially in reasoning. His separate analysis applied the three practical questions for legitimate-expectation claims: the authority’s commitment, unlawfulness in departing from it, and the appropriate remedy. He also treated the Secretary of State’s failure to provide candid disclosure in the judicial-review proceedings as supporting the inference of flagrant and prolonged incompetence.

• Court of Appeal (Civil Division): By [2005] EWCA Civ 744 , dismissed the Secretary of State’s appeal subject to varying the relief. It set aside the declaration of entitlement to refugee status but upheld the claimant’s entitlement to indefinite leave to remain.
• Administrative Court: On 22 October 2004, Davis J quashed the Secretary of State’s decisions and declared that the claimant was entitled to refugee status and indefinite leave to remain.