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

An active-war-zone enforcement policy concerns the environment to which a person is to be returned. It does not necessarily prohibit return to an entire country because one part is affected by hostilities where safe return elsewhere is possible. The policy protected persons from unacceptable danger, not escorts, and later protection under Article 15(c) could not enlarge its original purpose. Its precise scope could not be defined without evidence about its origins and implementation. Where a statutory immigration appeal provides an adequate remedy, judicial review remains a remedy of last resort, save for exceptional errors outside that process. Judicial review is unsuitable for deciding hypothetical legal questions dependent on unresolved factual findings.

The appellant, an Iraqi national, had been detained after serving a custodial sentence while deportation was pursued. He sought damages for allegedly unlawful detention and challenged the failure to apply an enforcement policy concerning nationals from active war zones.

Burnett J considered the application as a rolled-up judicial review claim. He granted permission on the separate issue of whether detention had continued unlawfully after 8 January 2008, but refused permission on the active-war-zone policy ground, while permitting an appeal to the Court of Appeal. The central issues were the policy’s geographic and substantive scope, and whether judicial review was an appropriate route when statutory immigration appeal procedures had not been used.

Appeal dismissed. Elias LJ gave the leading reasons. Norris J and Jacob LJ agreed.

1. Scope of the policy. The policy was directed to the place and circumstances of the proposed return. It did not prohibit enforcement merely because part of the home country was a war zone if safe return to another part was possible. The relevant issues included the condition of the proposed return area and the possibility of safe transit or return.
2. Purpose and continuing effect. The policy protected persons from unacceptable danger arising from armed conflict. It was not directed to protecting escorts. The later introduction of Article 15(c) protection could not be used to infer that the earlier policy covered different or lower risks. Article 15(c) did not automatically render the policy obsolete, but the court left open whether the policy contained exceptions for serious offenders excluded from subsidiary protection.
3. Evidence and procedure. The precise scope of the policy could not properly be determined from its bare wording without evidence about its origins and how it was understood and implemented. The issue had been raised late and required factual findings which judicial review could not conveniently provide.
4. Judicial review. The statutory appeal procedure was the appropriate route. Judicial review is ordinarily a remedy of last resort, although it may remain available for exceptional justiciable errors outside the statutory process. The policy had been publicly available and could not properly be treated as unavailable new material. The court did not need to decide the limitation point or whether the detention was ultimately unlawful.
5. Detention principles. The court restated the Hardial Singh limitations: detention must serve the deportation purpose, last no longer than reasonably necessary, cease when timely removal is no longer possible, and be pursued with reasonable diligence and expedition.

Jacob LJ added that a policy document should not be construed as if it were legislation. Its general language need not address every possible exception or variant. The formal order was: Appeal dismissed.

• Court of Appeal (Civil Division): dismissed the appeal against the refusal of permission to pursue the active-war-zone judicial review ground: [2010] EWCA Civ 1637.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Burnett J granted permission on the separate detention-duration issue and found detention unlawful from 8 January 2008, but refused permission on the active-war-zone policy ground and permitted an appeal on that issue.