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

A substantially published ministerial policy must be construed as a whole, including relevant unpublished operational guidance. A person outside the United Kingdom is not automatically excluded where the policy expressly provides for cases involving a person who has left the country to be referred for further advice. A decision-maker must consider that provision as a relevant consideration. In a claim based on delay and loss of a policy benefit, the claimant ordinarily must establish both a public law error and conspicuous unfairness. Delay by the claimant is relevant, but does not automatically defeat the claim where the application is made promptly under a current policy and the decision-maker has applied an unduly narrow interpretation of that policy. The appropriate remedy may be to quash the decision and remit the case for reconsideration.

The claimant, an Afghan doctor, had applied for asylum in 1999. His application was delayed, his asylum claim was refused in 2004, and he was removed to Afghanistan in January 2006. Following the Court of Appeal’s decision in R (S) v Secretary of State for the Home Department [2007] EWCA Civ 546, the Secretary of State introduced the R (S) policy to address cases where delay had caused applicants to lose the benefit of a four-year exceptional-leave policy.

The claimant applied in November 2008 for leave to enter so that his position could be considered under the R (S) policy. The Secretary of State rejected the application on the grounds that the policy did not benefit persons outside the United Kingdom, and later relied on delay. The issues were whether the policy potentially applied to persons who had left the United Kingdom and whether the claim was defeated by delay.

1. Policy construction. The court determined the meaning of the R (S) policy by considering the full policy, including its unpublished stage 7 and the guidance for cases where an individual had left the United Kingdom. The policy was substantially published and could not be treated as solely internal guidance. The reasonable and literate reader would not understand it to exclude everyone outside the United Kingdom.
2. Relevant consideration. Stage 7 did not state that a person who had left the United Kingdom was ineligible. It required referral to a senior caseworker for further advice. The decision of 21 December 2009, which stated categorically that the policy did not avail persons outside the United Kingdom, failed to take account of that relevant provision. The Secretary of State’s unexpressed intention could not displace the wording of the policy.
3. Alternative approach. Even applying the approach in R (Gashi) v Secretary of State for the Home Department [2003] EWHC 1198 (Admin), it would be Wednesbury unreasonable to construe the full policy as excluding the claimant automatically. The policy contained a positive indication that some persons who had left the United Kingdom might still be considered.
4. Delay. The claimant’s case did not fail for delay. The governing policy was current, his application was made within two months of its publication, and the Secretary of State had not relied on delay in the original decision. The authorities establish that relief in this type of case generally requires a public law flaw and conspicuous unfairness, and that delay by a claimant makes conspicuous unfairness difficult to establish. Those principles did not require dismissal here, particularly in view of the different treatment accorded to H under the same policy.
5. Disposition. The decisions dated 21 December 2009 and 7 July 2010 were set aside. The Secretary of State was required to reconsider whether, in light of the judgment and the claimant’s circumstances, he should be granted leave to enter or entry clearance to enable consideration under the R (S) policy.

First-instance judicial review proceedings. The judgment records the earlier decisions in R (S) v Secretary of State for the Home Department [2007] EWCA Civ 546 and R (S, H and Q) v Secretary of State for the Home Department [2009] EWCA Civ 142, but this court’s decision was to set aside the Secretary of State’s decisions and remit the matter for reconsideration.