XY v The Secretary Of State For The Home Department

A public authority must comply with the authoritative interpretation of its published policy unless and until the policy is lawfully amended or the interpretation is overturned or stayed on appeal. It cannot maintain a materially different unpublished policy while presenting the published policy as operative. A person affected by an adverse decision must ordinarily be informed of it; requiring that person to bring judicial review proceedings to discover the decision or the reason for delay is inadequate. Political or administrative considerations cannot excuse breach of these rule-of-law requirements. In judicial review proceedings, the duty of candour requires timely disclosure of relevant material. Redactions should be explained when documents are disclosed, and irrelevance is not a proper basis for withholding material merely because its significance is disputed.

The claimant was an Albanian national and confirmed victim of modern slavery whose asylum claim and appeal remained outstanding. The Secretary of State’s published policy stated that discretionary leave could be granted where leave was necessary owing to the victim’s personal circumstances, in accordance with article 14(1)(a) of ECAT.

After the judgment and declaration in R (KTT) v Secretary of State for the Home Department, the Secretary of State instructed officials to hold or withhold decisions affecting a wider cohort of confirmed victims with outstanding asylum claims. The claimant alleged that this was an unpublished policy inconsistent with the published policy, and that decisions had been made but not served. He also relied on Articles 8 and 14 ECHR and challenged the Secretary of State’s approach to disclosure, privilege and candour.

1. The judicial review succeeded. The declaration in R (KTT) v Secretary of State for the Home Department represented the law unless and until disturbed on appeal. While the published policy retained the relevant wording, the Secretary of State was required to interpret and apply it in accordance with that declaration. The Secretary of State was entitled to appeal and was entitled to amend or suspend the policy, but had to do so openly.
2. The instructions to officials constituted a policy. They materially departed from the published policy by directing officials to hold or withhold decisions affecting confirmed victims with outstanding asylum or further-submission claims. The policy was not published, and affected individuals were not told that the Secretary of State had departed from the published policy. This was unlawful under the principles in R (Lumba) v Secretary of State for the Home Department and R (Anufrijeva) v Secretary of State for the Home Department.
3. It was no answer that affected individuals could bring judicial review proceedings, or that section 77 of the Nationality, Immigration and Asylum Act 2002 prevented removal while an asylum claim was pending. The withheld decisions affected access to work and mainstream benefits and impaired the ability to challenge the decisions effectively.
4. Article 8(1) ECHR was engaged. The unlawful interference was not in accordance with the law for Article 8(2) purposes, so proportionality did not require determination. The breach ran from 8 December 2021, when internal checks on the claimant’s provisional decision should have been completed, to 18 January 2023, when leave was granted. The procedural Article 8 claim also succeeded because the secret policy materially impaired effective participation in decision-making and judicial review.
5. The Article 14 claim succeeded. Victims of modern slavery who claimed asylum were in an analogous situation to victims seeking leave on medical grounds who had not claimed asylum. The difference in treatment arose directly from the unlawful policy and was not justified.
6. The Secretary of State breached the duty of candour. Relevant information should have been disclosed by the filing of detailed grounds. Privilege justified withholding genuinely privileged passages, but did not justify extensive unexplained redactions. Draft decisions concerning the claimant were relevant even if they had not reached final form. A redaction should be explained at the point of disclosure, preferably in a witness statement where appropriate.
7. The parties were invited to agree an order giving effect to the judgment and consequential matters.

First instance judicial review in the Administrative Court. The judgment does not state any appeal from the present decision.