MS (R on the application of) v SECRETARY OF STATE FOR THE HOME DEPARTMENT

A public authority should follow its published policy unless there are good reasons to depart from it. The court determines the meaning of policy, applying the understanding of a reasonable and literate reader.

A policy promising free biometric appointments requires a reasonable sufficiency of such appointments, assessed as a matter of fact and degree. It does not require every appointment to be free.

Whether a biometric deadline is “specified” depends on what was communicated, including whether the recipient was told that failure to comply would have mandatory consequences. An application for settlement by a refugee is an application for indefinite leave to remain, rather than an application to be recognised as a refugee.

The claimant, a Syrian refugee, applied for indefinite leave to remain for himself and his family. He paid £440 for biometric enrolment appointments after being unable to find free appointments online during the Covid-19 pandemic.

He alleged that the Secretary of State had breached her policy that settlement applications by refugees should be free. He sought a declaration relating to his case and reimbursement. He also advanced arguments concerning the construction of the Immigration (Biometric Registration) Regulations 2008, including the consequences of missing a biometric deadline, although those arguments were not pleaded as an independent ground.

The central issues were whether the policy required a reasonable sufficiency of free appointments, whether it had been breached in the claimant’s circumstances, and what legal consequences followed from the biometric communications sent to him.

1. Claim dismissed. The claimant had not established that the Secretary of State’s policy was breached in his case.
2. A minister should follow her own policy unless there are good reasons for departing from it. Policy interpretation is for the court, applying the understanding of a reasonable and literate reader: Mandalia v Secretary of State for the Home Department [2015] 1 WLR 4546; R (Raissi) v Secretary of State for the Home Department [2008] QB 836.
3. The policy provided for free biometric appointments for refugees and non-refugees. It did not require every appointment to be free, but required a reasonable sufficiency of free appointments. That question was one of fact and degree.
4. In the claimant’s case, the online communications did not specify 29 September 2020 as a mandatory regulation 8 deadline. Although the claimant was told to attend by that date, he was also told that a reminder would follow. The communication therefore did not convey that attendance had to occur at all costs by that date.
5. The court considered the construction of the Biometric Regulations. An application for settlement was an application for indefinite leave to remain under regulation 3(2)(b), not an application to be recognised as a refugee under regulation 3(2)(e). Where a regulation 8 deadline is specified and missed, the mandatory sanction in regulation 23 applies to the relevant applications, although the sanction is not self-activating.
6. The court inclined against permitting retrospective extension of an expired specified deadline. Its observations on the Regulations were not necessary to the disposal of the claim. The analysis in R (SGW) v Secretary of State for the Home Department [2022] UKUT 15 (IAC) was accepted as correct; R (Jayamaran) v Secretary of State for the Home Department [2018] EWCA Civ 2545 was not in point.
7. The conditional claim for restitution of £440 would not have been entertained because it was inadequately pleaded and insufficiently particularised.

First instance judicial review in the Administrative Court. No earlier decision under appeal is stated in the judgment.