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

A legitimate expectation ordinarily requires a clear and unequivocal representation by the public authority. Government targets for processing asylum claims, including targets expressed in policy documents or public service agreements, do not amount to promises that every claim will be decided within the target period. Differential processing times between applicants do not, without evidence explaining the relevant circumstances, establish conspicuous unfairness amounting to an abuse of power. A delay of about 15 months does not, by itself, demonstrate unfairness.

The claimant, an Iraqi national of Kurdish origin, sought judicial review of decisions refusing him indefinite or exceptional leave to remain. His asylum claim had been determined after the Secretary of State’s Iraqi exceptional-leave policy had ended. He argued that he had a legitimate expectation that his asylum claim would have been decided within two months, or within a reasonable time, based on the 1998 White Paper and the 2001 Public Service Agreement. He also argued that the different processing times of other Iraqi asylum seekers demonstrated conspicuous unfairness and an abuse of power.

The central issues were whether the policy documents created a legitimate expectation of a particular decision-making timescale and whether the delay or differential treatment was sufficiently unfair to justify judicial intervention.

1. The application was dismissed.
2. A claim based on legitimate expectation will ordinarily fail without a clear and unequivocal representation by the public authority, save in exceptional circumstances. The principle stated in R (Association of British Civilian Internees: Far East Region) v Secretary of State for Defence (2003) 3 WLR 80 was accepted and applied.
3. The 1998 White Paper did not contain an unambiguous promise that asylum applications would be decided within two months or within any particular period. The court adopted the reasoning of Collins J in R (S) v Secretary of State for the Home Department [2007] EWHC 51 (Admin).
4. The 2001 Public Service Agreement likewise did not create an enforceable promise. Its target that 60 per cent of applications should be decided within 60 days necessarily indicated that a substantial proportion would fall outside that period.
5. Comparison with other Iraqi asylum seekers could not establish conspicuous unfairness without reliable information about the circumstances of those cases. Different processing times might have resulted from matters such as compassionate circumstances or other reasons for expedition. The claimant’s application had taken just under 15 months, but that period did not, without more, demonstrate unfairness or an abuse of power.

The judgment describes the claimant’s earlier asylum appeal, which was dismissed by an adjudicator on 9 January 2004 and followed by refusal of permission to appeal by the IAT on 9 March 2004. The present judicial review challenged the Secretary of State’s subsequent decisions dated 1 December 2005 and 25 October 2006.