Secretary of State for the Home Department v HH (Iraq)

A public authority must take its operative policy into account when making a decision to which that policy applies. Although a policy does not itself have the status of law, wholly overlooking it may make the decision “not in accordance with the law”. Its subsequent withdrawal does not retrospectively cure that defect.

For a policy against enforcement action involving nationals of active war zones, “enforcement action” included a decision to make a deportation order. Such a decision initiates removal action and may produce immediate legal and physical consequences, including detention. In any event, contravention of the minister’s stated public policy is a material consideration when deciding whether to make the order.

The Home Secretary decided to make a deportation order against an Iraqi national following his conviction and imprisonment for sexual offences. The decision was made without regard to an operative provision in the departmental enforcement manual stating that enforcement action should not be taken against nationals originating from active war zones.

The Asylum and Immigration Tribunal found that Iraq was an active war zone, that the decision constituted enforcement action, and that overlooking the policy meant the decision was not in accordance with the law under section 84(1)(e) of the Nationality, Immigration and Asylum Act 2002. It allowed the appeal and remitted the decision for reconsideration on current facts.

The Home Secretary appealed, principally contending that “enforcement action” did not include a decision to make a deportation order and that overlooking the policy could not have affected the outcome because the policy would have been withdrawn.

1. The Home Secretary’s appeal was dismissed unanimously. The departmental expression “enforcement action” included a decision to make a deportation order. The statutory definition in section 24A(2) of the Immigration Act 1971 gave little assistance because it was carefully confined to the elements of the criminal offence created by that section. The departmental policy had different and broader purposes.

2. Under the statutory deportation procedure, the decision to make an order precedes the appeal and the order itself. It initiates action to enforce removal and may have immediate legal and physical consequences, including administrative detention. There was therefore no basis for excluding the decision from the policy’s scope.

3. Applying Abdi [1996] Imm AR 148, a policy does not itself have the status of law, and departure from it does not invariably make a decision unlawful. Nevertheless, wholly overlooking an applicable policy may mean that the decision is “not in accordance with the law”. The Home Secretary could not establish immateriality by asserting that, had the policy been noticed, its abandonment would simply have been accelerated. Government’s power to make and remake policy did not justify assuming that a policy could be discarded whenever it became inconvenient or embarrassing.

4. Lord Justice Toulson added that, even if enforcement action began only with the making of the deportation order, the appeal would still fail. A decision-maker must consider all material considerations. Whether making the order would contravene the minister’s stated public policy was necessarily material. Lord Justice Rimer agreed with both judgments.

5. The policy’s later withdrawal did not make quashing pointless. The respondent’s outstanding claims under article 8 of the European Convention on Human Rights and article 15(c) of the Qualification Directive would have to be assessed on current facts if the Home Secretary made a fresh decision. The tribunal’s determination in the respondent’s favour therefore remained undisturbed.

1. Court of Appeal (Civil Division): The Home Secretary’s appeal was dismissed unanimously: [2009] EWCA Civ 727. The tribunal had correctly allowed the respondent’s appeal because the deportation decision was made without regard to an applicable departmental policy.

2. Asylum and Immigration Tribunal: On directed reconsideration, the tribunal held that Iraq was an active war zone, that deciding to make a deportation order was enforcement action, and that overlooking the operative policy meant the decision was not in accordance with the law. It remitted the matter to the Home Secretary for a fresh decision based on current facts.