A & Ors, R (on the application of) v Secretary of State for the Home Department

A public authority must apply its own policy consistently when determining individual claims. Failure to do so makes the decision unlawful and may also be unfair. Relief may nevertheless be refused where circumstances have changed before the court decides the claim. The court may require the authority to honour the earlier policy only where frustrating the expectation would be so unfair as to amount to an abuse of power. Relevant considerations include the nature and duration of the policy, the size of the affected class, the breadth of the policy issues, and the degree of unfairness. Systemic incompetence, the misleading of an appellate body, and the absence of a satisfactory explanation may together constitute conspicuous unfairness justifying relief despite changed circumstances.

Three Iraqi Kurdish asylum seekers from the Government Controlled Area of Iraq sought judicial review after their asylum claims had been determined by reference to internal relocation to the Kurdish Autonomous Zone, contrary to a Home Office policy not to rely on that option. The policy or practice also provided, in relevant cases, for refugee status, indefinite leave to remain or four years’ exceptional leave to remain.

By the time the claims were heard, Saddam Hussein had been removed and the claimants were no longer at risk of persecution on return. The Secretary of State relied on the principle that asylum claims are assessed by reference to circumstances existing at the time of appeal or hearing. The common question was the effect of the Court of Appeal’s decision in R (Rashid) v Secretary of State for the Home Department [2005] EWCA Civ 744.

1. The claims succeeded. The claimants had been subjected to unlawful decision-making because officials failed to apply a policy which should have governed their cases. The distinction between a policy and a practice was immaterial.
2. A policy must be applied consistently. Its existence need not have been known to the individual claimant. The relevant expectation was that the Secretary of State would make decisions in accordance with the policy adopted by the department. Failure to take the policy into account was unlawful and unfair.
3. The principle in Ravichandran v Secretary of State for the Home Department [1996] Imm AR 97 ordinarily required the court to consider the circumstances existing at the hearing. Relief preserving an earlier position was exceptional. Following R (Rashid) v Secretary of State for the Home Department [2005] EWCA Civ 744, relief was justified where frustrating the expectation would be so unfair as to amount to an abuse of power.
4. The relevant assessment included the nature of the decision, whether wide-ranging policy issues were involved, the temporal effect of holding the authority to its policy, the size of the affected class, the degree of unfairness and any bad faith. A poor individual decision would ordinarily be corrected on appeal. Here, the failure was systemic, persisted over a substantial period, affected the appellate process, and remained inadequately explained. It therefore amounted to conspicuous unfairness and abuse of power.
5. The approach to substantive legitimate expectation was consistent with R v North and East Devon G.A. ex p Coughlan [2001] Q.B. 213 and the link between unfairness and unreasonableness recognised in R v Home Secretary ex p Khan [1984] 1 W.L.R. 1337.
6. A and H were to be granted indefinite leave to remain. A was also to be permitted to apply for family reunion on the basis that would have applied had he been recognised as a refugee. AH was to be permitted to apply for indefinite leave to remain as if he had received the necessary four years’ exceptional leave, subject to applying within a reasonable time.

The judge also expressed the view, without full argument, that protection for Refugee Convention purposes need not be provided by an internationally recognised government if effective protection existed within the claimant’s country.

The judgment was a first-instance judicial review decision. It records earlier asylum appeals and the Court of Appeal’s decision in R (Rashid) v Secretary of State for the Home Department [2005] EWCA Civ 744, but no appellate history for these claims.