JB (Ghana), R (on the application of) v The Secretary of State for the Home Department

An administrative policy must be interpreted objectively, using a broad and practical approach suited to its language, purpose and context. It should be read as a reasonable person affected by or advising upon the policy would understand it. A court cannot rewrite clear wording by speculating about what the policy-maker might have intended or would have provided in different circumstances.

A power to correct an obvious drafting mistake is confined to a plain case. The court must be sure of the provision’s intended purpose, the inadvertent failure to express it and the substance of the intended correction. A flaw in policy design is not necessarily a drafting error.

The respondent was both an asylum seeker and a potential victim of trafficking. During the early months of the COVID-19 pandemic, he lived in full-board asylum accommodation and received support under the Immigration and Asylum Act 1999. He claimed that paragraph 15.37 of the March 2020 statutory guidance entitled him to payments bringing his total weekly financial support to £65.

A deputy High Court judge allowed his judicial review claim. The judge held that the guidance clearly applied to an individual receiving asylum support and contained no distinction between catered and self-catered asylum accommodation.

The Secretary of State appealed. The central issue was whether the guidance should be construed according to its categorical wording or corrected to reflect an asserted intention that the payment level should depend upon whether accommodation was catered.

1. Appeal dismissed. Paragraph 15.37 stated categorically that a potential victim of trafficking who was also an asylum seeker receiving asylum support would receive a further payment bringing the total to £65 per week. It contained no offset for meals supplied in catered accommodation and drew no distinction between catered and self-catered asylum accommodation. The later amendment demonstrated that such a distinction could readily have been expressed: paras [64]-[65], [74]-[76].
2. A policy document is interpreted objectively. Although its wording is not subjected to the fine analysis appropriate to legislation or a contract, the court must apply a broad and practical interpretative approach without speculating about what a minister or drafter subjectively had in mind. Policies should mean what they say and be read as a reasonable claimant, support worker or adviser would read them. The approach in Raissi, Mahad, Re McFarland and Tesco Stores supported that conclusion: paras [67]-[68].
3. The fact that the guidance had been drafted before the pandemic, when an asylum seeker would typically remain in catered accommodation only briefly, explained its wording but supplied no basis for changing its plain meaning. The court could not construe the policy by reference to what its drafter might have written with greater care or foresight: paras [65], [68].
4. The respondent fell within paragraph 15.37 even though he had not initially received the cash asylum support to which he was entitled. Most asylum seekers in full-board initial accommodation received some cash support, and excluding a person receiving no cash while including one receiving a modest sum would create an anomalous result: para [66].
5. The guidance contained no obvious drafting mistake of the kind addressed in Inco Europe. The court could not be sure what alternative provision the drafter would have made, or even that the drafter had not intended the stated top-up. The wording was consistent with the Victim Care Contract and contemporaneous answers issued by the Home Office. A flaw in a policy’s design is distinct from a drafting error: paras [69]-[71].
6. The lawfulness of the August 2020 amendment was outside the appeal. The court expressed the provisional view that nothing identified would have precluded the Secretary of State from making that amendment: para [73].

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was dismissed unanimously. The court upheld the deputy High Court judge’s construction of paragraph 15.37 of the March 2020 guidance: [2022] EWCA Civ 1392.
2. Administrative Court: Peter Marquand, sitting as a deputy judge of the High Court, allowed the respondent’s judicial review claim. He held that the applicable policy entitled a potential victim of trafficking receiving asylum support to total weekly financial support of £65. No neutral citation for that decision is stated.