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

A published immigration policy must be interpreted as a whole, having regard to its purpose and context. A policy identifying cases potentially within earlier decisions does not necessarily create an independent entitlement wider than those decisions. On the majority view, an Iraqi asylum seeker did not fall within the relevant policy merely because his origin in the Government Controlled Area was established after the asylum refusal. The policy presupposed that the Secretary of State had accepted that origin when applying the policy. Sedley LJ dissented, treating the policy as a self-contained, bright-line, tick-box scheme.

Two conjoined appeals concerned the interpretation of Iraq Policy Bulletin 2/2006. AM’s asylum claim was refused because the Secretary of State did not accept that he came from the Government Controlled Area of Iraq; an adjudicator later accepted his account. SS’s claim was refused because his Iraqi nationality and origin were not accepted, but the adjudicator later accepted his evidence.

AM’s application for judicial review was refused permission by James Goudie QC, sitting as a deputy High Court judge. Sedley LJ later granted permission and directed the substantive application to proceed in the Court of Appeal. Blair J allowed SS’s claim, quashed the refusal of indefinite leave to remain and remitted the matter. The common issue was whether paragraph 4.5 applied where origin from the Government Controlled Area was established only after refusal of asylum.

1. By a majority, AM’s application for judicial review was dismissed and the Secretary of State’s appeal in SS’s case was allowed. Toulson LJ delivered the principal reasoning, with Wilson LJ agreeing. Sedley LJ dissented.
2. The majority held that the Bulletin had to be read as a whole against the background and purpose of Rashid and R (A) (H) and (AH). Its purpose was to provide a practical route for cases potentially within the scope of those decisions, without requiring caseworkers to decide afresh whether maladministration crossed the line into conspicuous unfairness amounting to abuse of power.
3. The critical distinction was between failure to apply an existing policy to circumstances which the Secretary of State accepted, and an initially lawful rejection of a claimant’s account of nationality or place of origin. In the latter case, later acceptance or establishment of the facts did not itself show disregard of Home Office policy. Extending AH to that situation lacked the same logical foundation and did not justify disapplying the Ravichandran principle.
4. The parenthetical words in paragraph 4.5, referring to the practice of granting four years’ exceptional leave to remain to claimants from the Government Controlled Area, were explanatory. That practice presupposed acceptance by the Secretary of State that the claimant came from that area. Annex A confirmed this reading by requiring the caseworker to record that the applicant was accepted as being from the relevant part of Iraq.
5. Wilson LJ emphasised that the initial refusals were not unlawful or perverse. Sedley LJ would have treated the Bulletin as a self-contained tick-box policy under which the relevant factual criterion was satisfied when the applicants’ origin was later ascertained.

1. Court of Appeal (Civil Division) [2009] EWCA Civ 833: by a majority, dismissed AM’s application for judicial review and allowed the Secretary of State’s appeal in SS’s case.
2. Administrative Court: refused AM permission to apply for judicial review; Blair J allowed SS’s claim, quashed the refusal of indefinite leave to remain and remitted it to the Secretary of State. The lower-court citations were [2008] EWHC 1915 (Admin) and [2008] EWHC 2069 (Admin).