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

A policy ordinarily creates a legitimate expectation that it will be applied to persons within its scope, while cases outside it must still receive due consideration. The law recognises no general near-miss principle. Falling just outside a policy creates neither a presumption of equivalent treatment nor an expectation that the policy will be extended by analogy.

The considerations underlying a policy may nevertheless inform the significance of particular circumstances and support exceptional treatment. A prior Court of Appeal decision concerning the same policy and virtually identical facts remains binding despite arguments that the earlier court misunderstood the policy’s development or lacked additional material.

Two Kosovo Albanians arrived in the United Kingdom as unaccompanied minors after becoming separated from their parents. Their asylum and human rights claims failed. They were later refused indefinite leave to remain under the Home Secretary’s Family ILR Exercise because the concession applied to qualifying family units rather than unaccompanied young people.

Ouseley J dismissed their judicial review claims in the Administrative Court. Both appealed against the treatment of the concession. One appellant also challenged the refusal to recognise a fresh human rights claim, relying on his proximity to the concession, the alleged loss of benefits associated with exceptional leave as a minor, and an alleged misdirection about the fresh-claim test.

The central questions were whether [2006] EWCA Civ 1619 remained binding and whether the additional matters gave the fresh claim a realistic prospect of success.

1. The appeals were dismissed unanimously. The decision in AL (Serbia) [2006] EWCA Civ 1619 bound the court. It concerned the concession in its amended August 2004 form and decided, on virtually identical facts, that the distinction between accompanied family members and unaccompanied minors was compatible with articles 8 and 14 of the Human Rights Convention. A possible conflation of the policy’s two stages, additional evidence about its flexible application, and arguments which might have been framed differently did not permit the court to distinguish that authority.

2. The flexible application of a lawful policy does not make it unlawful or create an enforceable expectation that it will be extended further. The appellants’ common-law equal-treatment argument offered no more favourable route than article 14.

3. The refusal to recognise a fresh claim involved no material misdirection. Although the decision-maker did not have the later guidance in WM (DRC)(2) [2006] EWCA Civ 1495, there was no reason to think that adopting the perspective of a hypothetical immigration judge would have produced a different result. A judge applying the same legal test to the same facts could properly be expected to reach the same conclusion.

4. The law recognises no near-miss principle. A policy normally creates a legitimate expectation that those within it will receive its benefit, subject to good reason for an exception. It also leaves the decision-maker obliged to consider cases outside it. It does not create a presumption that persons falling just outside its terms should receive equivalent or specially favourable treatment.

   The policy’s rationale may still inform the importance of particular circumstances and add weight to a request for exceptional treatment. That is distinct from extending the policy by analogy.

5. The alleged past loss of benefits did not invalidate the fresh-claim decision. AA (Afghanistan) [2007] EWCA Civ 12 concerned an established error of law and recognised only that lost substantive or procedural benefits might influence a later discretionary decision. It did not establish an article 8 duty to treat such loss as decisive or require the decision-maker to raise a point never advanced by the claimant. The evidence also failed to establish any substantial practical loss.

1. Court of Appeal (Civil Division): The two appeals were dismissed unanimously. The court held that AL (Serbia) [2006] EWCA Civ 1619 was binding and rejected the separate challenge concerning the fresh human rights claim.
2. Administrative Court: Ouseley J dismissed the judicial review claims challenging the refusals under the Family ILR Exercise. He also rejected the challenge to the refusal to recognise a fresh claim in the second appellant’s case.