NA (Iraq), R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs & Ors

An official entrusted by the Immigration Rules with deciding an individual application must exercise that judgment personally. The Secretary of State may issue strong operational guidance, but may not direct the official to reject every document of a specified class or otherwise remove the official’s decision-making power.

Paragraph 320(3) is disjunctive. A valid national passport generally establishes identity and nationality without a separate inquiry. A different document must establish those matters satisfactorily. A valid passport which fails to comply with international passport practice falls instead within paragraph 320(10). A categorical exclusion requires amendment of the Immigration Rules.

The appellant, an Iraqi Kurd wishing to seek entry clearance as a fiancé, held an Iraqi S-series passport. Government instructions stated that no visa was to be issued to an S-series passport holder and that entry clearance officers had no local discretion.

Goldring J dismissed the appellant’s judicial review claim in [2007] EWHC 286 (Admin). He held that the Secretary of State could issue operational guidance declaring that passports of a particular class were unacceptable.

The appeal concerned whether that policy unlawfully removed or restricted the individual entry clearance officer’s judgment under paragraph 320(3) of the Immigration Rules.

1. Appeal allowed unanimously. The individual entry clearance officer was the decision-maker under paragraph 320(3). The officer had to exercise judgment upon the documents produced by an applicant. The Secretary of State could issue guidance, including strongly expressed guidance, but could not instruct the officer how to decide or remove or restrict that decision-making power.

2. The instruction that no visas were to be issued to holders of S-series passports exceeded the lawful limits of operational guidance. Its mandatory wording removed local discretion. It consequently caused the entry clearance officer unlawfully to refuse to exercise an individual judgment under paragraph 320(3).

3. Paragraph 320(3) had a disjunctive meaning. An applicant had to produce either a valid national passport or another document which satisfactorily established identity and nationality. A valid national passport could generally be taken to establish those matters without a separate inquiry. Poor quality or non-compliance with international passport practice was addressed separately by paragraph 320(10).

4. An officer presented with an S-series passport therefore had first to decide whether it was a valid national passport. If it was invalid, entry clearance had to be refused under paragraph 320(3), subject to the theoretical possibility that it qualified as another satisfactory document. If valid, the officer then had to consider paragraph 320(10). Entry clearance should normally be refused if the passport did not comply with international passport practice.

5. Practical difficulty in distinguishing genuine from counterfeit S-series passports could not alter the legal allocation of decision-making power. It was possible to envisage non-fanciful circumstances in which an officer could be satisfied that an individual S-series passport was valid. Security concerns could be addressed through strong guidance and paragraph 320(10).

6. If the Secretary of State wished to exclude any possibility that an S-series passport could be accepted, the Immigration Rules themselves had to be changed. The appellant was entitled to seek to persuade an entry clearance officer to grant entry clearance on the basis of his passport.

• Court of Appeal (Civil Division): In [2007] EWCA Civ 759, unanimously allowed the appeal and held that the categorical instruction unlawfully restricted the entry clearance officer’s decision-making power.
• High Court, Administrative Court: Goldring J dismissed the judicial review claim in [2007] EWHC 286 (Admin), holding that the Secretary of State could issue operational guidance that passports of a particular class were unacceptable.