Mohamed Al-Anizy, R (on the application of) v The Secretary of State for the Home Department

A published family-reunion policy requiring flexible proof of identity must be applied according to its terms. It cannot be converted into an inflexible requirement for a passport or national identity card where the policy permits reasonable alternatives and explanations for missing documents.

Public authorities should ordinarily follow their published policies unless there is good reason not to do so. A failure to examine and determine family-reunion applications, without justification, was unlawful and, on the facts, infringed Article 8 rights and the children’s welfare duty under the Borders, Citizenship and Immigration Act 2009.

In judicial review, a proposed withdrawal or consent order requires the Tribunal’s independent approval.

The applicant was a recognised refugee in the United Kingdom. His wife and two younger children, Kuwaiti Bidoons living in Iraq, twice attended visa application centres to pursue family reunion. On each occasion staff refused to consider the applications because they did not produce passports or equivalent identity documents.

The applicant contended that this approach conflicted with the Secretary of State’s Family Reunion Guidance, which allowed alternative identity evidence and explanations for unavailable documents. Permission for judicial review was granted on 6 March 2017. The central issue was whether the Secretary of State’s failure to examine and determine the applications was lawful.

1. The Tribunal held that the judicial review challenge was well founded. The Family Reunion Guidance required officials to consider the applications, the available proof of identity and relationship, and the explanation for the absence of passports or identity cards. Its terms permitted flexible proof, including biometrics, official documents, UNHCR material and reasonable alternatives.

2. The policy could not be read as if it were legislation or a contract. Applying the approach in R (Alconbury Developments) v Secretary of State for the Environment, Transport and the Regions, [2003] 2 AC 295, a policy may guide administrative discretion but must not fetter it through blanket decisions that exclude consideration of individual circumstances.

3. The Secretary of State was also required, under the Lumba principle, ordinarily to follow her published policy. The refusal even to examine the applications conspicuously failed to do so. No justification for that departure was advanced or apparent. The failure also infringed the family’s Article 8(1) rights and breached section 55(1) of the Borders, Citizenship and Immigration Act 2009 in respect of the children in the United Kingdom. The policy substantially extended the same welfare approach to the children overseas.

4. The Tribunal would otherwise have quashed the refusals and required determinations within 21 days. However, it approved, marginally, a consent order under which the respondent would accept the applications at Basra and use best endeavours to decide them promptly. Judicial review parties could not dictate the outcome: withdrawal required approval under Rule 17, and the Tribunal determined the terms of a proposed consent order under Rule 39 of the Tribunals (Upper Tribunal) Rules of Procedure 2008. The applicant was permitted to withdraw the claim and awarded reasonable costs.

• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Bruce granted permission to apply for judicial review on 6 March 2017. The substantive judicial review was then resolved by an approved consent order, with findings that the challenge was well founded.