R (AM & SS) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Toulson,Lord Justice Wilson,Lord Justice Sedley |
| Judgment Date | 30 July 2009 |
| Neutral Citation | [2009] EWCA Civ 833 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 July 2009 |
| Docket Number | Case Nos: C4/2008/1443 C4/2008/2310 |
[2009] EWCA Civ 833
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
LOWER COURT NO: CO/10390/2006, [2008] EWHC 1915 (Admin)
LOWER COURT NO: CO/6088/2007, [2008] EWHC 2069 (Admin)
1. MR JAMES GOUDIE QC, SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
2. MR JUSTICE BLAIR
Lord Justice Sedley
Lord Justice Wilson and
Lord Justice Toulson
Case Nos: C4/2008/1443 C4/2008/2310
Mr Mark O'Connor (instructed by Island Advice Centre) for AM
Ms Galina Ward (Instructed by Messrs Duncan Lewis & Co) for SS
Mr Robert Palmer (instructed by Treasury Solicitors) for the Secretary of State for the Home Department
Hearing date: 7 July 2009
Introduction
These two appeals have been heard together because they raise a common point to which different judges sitting in the Administrative Court have given different answers. The point concerns the proper interpretation and application of the Home Office's Iraq Policy Bulletin 2/2006 (“the policy bulletin”), which was introduced after the decisions in R (Rashid) v Secretary of State for the Home Department [2005] EWCA Civ 744 and R (A) (H) and (AH) v Secretary of State for the Home Department [2006] EWHC 526 (Admin).
Facts
The facts of the present cases can be summarised shortly. They concern Iraqi Kurds who came to the UK during the regime of Saddam Hussein and claimed asylum. Both claimed to come from the area of Iraq under governmental control (GCI). The Home Secretary disbelieved their accounts or that they came from the GCI. He did not believe that Mr SS came from Iraq and he believed that Mr AM came from the Kurdish Autonomous Zone (KAZ) rather than the GCI. Both claimants appealed. The adjudicators believed their accounts. However, the claimants' appeals failed because by this time the Saddam Hussein regime had been overthrown. Without doubting the claimants' bona fides, the adjudicators did not accept that they had a well-founded fear of persecution from former supporters of the Saddam Hussein regime or their associates.
The dates are important. Mr AM arrived in the UK on 14 December 2000 and claimed asylum on arrival. His application was refused by a decision letter dated 14 January 2003. The adjudicator's decision on his appeal was promulgated on 17 November 2003. Mr SS arrived in the UK on 4 November 2002 and similarly claimed asylum on arrival. His claim was refused by a decision letter dated 30 December 2002. The adjudicator's decision was promulgated on 4 November 2003.
For many years until 20 February 2003 it was the practice of the Home Secretary, although it was not always observed, that unsuccessful asylum claimants who came from the GCI would be granted 4 years' Exceptional Leave to Remain (ELR), which would normally lead at the end of that period to Indefinite Leave to Remain (ILR). If the Home Secretary had accepted at the time of his refusal of Mr AM's and Mr SS's applications for asylum that they came from the GCI, as in fact they did, according to that practice they would have been granted 4 years' ELR and they would, by now, have been granted ILR. But that practice was terminated at the time of the military operations which led to the overthrow of Saddam Hussein and no longer applied at the time when the adjudicators found the claimants to have been truthful.
The policy bulletin was issued on 1 August 2006. I attach it at the end of our judgments but as an appendix to mine (excluding the annex to the policy bulletin, to which I refer below). Mr AM and Mr SS claim that they fall within paragraph 4.5 of the policy bulletin as persons whom had been from GCI, had been refused asylum between April 1991 and 20 February 2003, and had not been granted 4 years' ELR.
They therefore made applications to the Home Secretary for ILR on the basis of the policy bulletin. Their applications were refused by the Home Secretary because, in her view, they did not fall within the policy bulletin. She considered that the relevant date for determining whether they came within the policy bulletin was in each case the date of the adjudicator's determination, because until then the Home Office had not accepted that either of them came from the GCI.
Judicial review proceedings
Mr AM and Mr SS applied for judicial review of the Home Secretary's rejection of their applications.
Mr AM's application for permission to apply for judicial review was refused after an oral hearing before Mr James Goudie QC sitting as a Judge of the Administrative Court. He rejected the argument advanced on Mr AM's behalf that the Home Secretary had been glossing the policy bulletin by reading the words “have been from the GCI” as if they read “have been in the view of the Secretary of State from the GCI” as a bad point. On 12 September 2008 Sedley LJ on paper granted Mr AM permission to apply for judicial review under CPR 52.15 (3) and, under (4), ordered that the substantive application should proceed in this court.
Mr SS's claim came before Blair J, who allowed it, quashed the Home Secretary's decision to refuse Mr SS's application and remitted it to the Home Secretary for further consideration. He said that he had not found the matter easy, but he preferred the arguments on behalf of the claimant. The main points which weighed with him were that the policy bulletin was intended to prevent unnecessary argument about who did or did not fall within the scope of the decisions in Rashid and AH by laying down a clear policy which could be simply applied, and that this was not a case of the Home Secretary construing ambiguous words in her own published policy bulletin (in which case the question would be whether the interpretation was reasonably open to her) but rather a case where she had put a gloss on the words of the Policy which could not be justified by reference to its terms. The simple fact was that the claimant was from the GCI and therefore fell within paragraph 4.5.
In the more recent case of Amin v Secretary of State for the Home Department [2009] EWHC 1085 (Admin) Blake J has disagreed with Blair J. He agreed with the Home Secretary that paragraph 4.5 did not apply to a claimant from the GCI who was refused asylum during the relevant period unless his claim to have come from the GCI was accepted or established by 20 February 2003.
The appeals were well argued on both sides. On behalf of the claimants it was submitted that Blair J gave the right answer for the right reasons. The primary submission made by Mr Palmer on behalf of the Home Secretary was that Blair J's interpretation of paragraph 4.5 was understandable if the paragraph is read in isolation, but was not the correct interpretation when it is read in the context of the policy bulletin as a whole. Alternatively, he submitted that the paragraph was fairly capable of being understood either way, and that it was not unlawful for the Home Secretary to apply the Policy as she did. If both those submissions failed, Mr Palmer advanced a third argument that the Home Secretary was not manacled by the Policy as properly interpreted but was entitled to depart from it. This submission was advanced somewhat faintly, because it was not a case in which the Home Secretary had appreciated that her decisions conflicted with her publicly stated policy and had made a conscious decision to depart from the Policy for some particular reason.
The policy bulletin: purpose and background
The overall purpose of the policy bulletin is stated in paragraphs 1.1 and 2.2. These paragraphs contain three relevant points. First, the policy bulletin states that it has been produced to provide guidance to decision-makers considering the implications of the judgments in Rashid and R (A) (H) and (AH). Secondly, it enunciates a policy that:
“… we should not seek to enforce the removal of failed asylum seekers whose cases have the potential to fall within the scope of the Rashid judgment and/or the cases of R (A): (H) and (AH), pending consideration of their cases.”
Thirdly, it states that “in practical terms” people should therefore not be removed who satisfy a category within paragraphs 4.1 to 5.
Paragraph 3 of the policy bulletin contains a summary of the background to those cases and what they decided, but it is an understandably abbreviated summary and it is right to look at the cases themselves for a fuller understanding of the issues.
Rashid
In Rashid the claimant was an Iraqi Kurd who sought asylum in the UK on 4 December 2001. His claim was refused by the Home Secretary on 11 December 2001 and that decision was upheld by an adjudicator on 7 June 2002. In refusing the claim for asylum and resisting the claimant's appeal the Home Secretary relied on the availability of internal relocation to the KAZ. Unknown to the claimant's advisers or to the adjudicator, there was at that time within the Home Office a general policy that internal relocation to the KAZ would not be advanced as a reason to refuse a claim for refugee status. The existence of the policy was revealed to the claimant's representatives as a result of another case on 6 March 2003. The Home Secretary then agreed to reconsider the claimant's case in the light of the policy but it took him until 16 January 2004 to do so. In the meantime, in June 2003,...
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