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

A public authority must apply its policy according to its ordinary meaning. The court may determine that meaning and need not accept an interpretation which adds words or qualifications not found in the policy. A policy may be departed from for good reason, but the fact that its application produces an artificial or generous result is not, by itself, sufficient. Where a retrospective policy was introduced to remedy unfairness identified in earlier litigation, its scope must be determined from the policy’s terms unless the text clearly incorporates additional conditions.

The claimant, an Iraqi national from the Government Controlled Area of Iraq, sought judicial review of the refusal to grant indefinite leave to remain under the 2006 Iraq Policy Bulletin. His asylum claim had initially been refused on the mistaken basis that the Secretary of State was not satisfied that he was Iraqi. He was later accepted as Iraqi at his asylum appeal, but the four-year exceptional leave policy had by then ended.

The Secretary of State argued that the policy applied only to persons who had been accepted as being from the Government Controlled Area at the time of the original decision. The central issue was whether that qualification could properly be read into the policy.

1. The claim succeeded. The refusal decision was quashed. The application for indefinite leave to remain was remitted to the Secretary of State for reconsideration in accordance with the judgment, subject to the usual security checks. The Secretary of State was ordered to pay the claimant’s costs.
2. The 2006 policy was a policy rather than legislation and was capable of alteration by the minister. Nevertheless, its meaning had to be determined from its terms. The court rejected the submission that paragraph 4.5 required the claimant to have been accepted by the Secretary of State as being from the Government Controlled Area at the time of the original refusal.
3. Paragraph 4.5 required the applicant in fact to have been from the Government Controlled Area and not to have been granted four years’ exceptional leave to remain. The proposed additional qualification could not be justified by the wording of the policy. The annexes, including model refusal letters, did not materially assist in construing the main policy because they operated only after the policy criteria had been applied.
4. The policy had been promulgated after R (on the application of Bakhtear Rashid) v SSHD [2005] EWCA Civ 744 and R (A, H, and AH) v SSHD [2006] EWHC 526 Admin to address inconsistency and unfairness in the treatment of Iraqi asylum seekers. Its remedial purpose did not permit the Secretary of State to add a condition absent from the text.
5. The Secretary of State accepted that a policy could be disapplied for good reason. No such reason existed here. The claimant was in fact from the relevant area, and the artificial consequence that a person not entitled to asylum might obtain indefinite leave to remain followed from the policy and the remedial measures adopted after the earlier decisions.

First-instance judicial review. Permission was granted by Simon J on 7 November 2007. The Administrative Court quashed the Secretary of State’s decision and directed reconsideration in accordance with the judgment.