R (Rashid) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,Lord Justice May,Lord Justice Dyson |
| Judgment Date | 16 June 2005 |
| Neutral Citation | [2005] EWCA Civ 744 |
| Docket Number | Case No: C4/2004/2454 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 June 2005 |
[2005] EWCA Civ 744
Lord Justice Pill
Lord Justice May and
Lord Justice Dyson
Case No: C4/2004/2454
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
MR JUSTICE DAVIS
Royal Courts of Justice
Strand, London, WC2A 2LL
MR R TAM & MR S GRODZINKSI (instructed by Treasury Solicitors) for the Appellants
MR R SINGH QC & MR R HUSAIN (instructed by The Refugee Legal Centre) for the Respondent
Crown Copyright ©
The Secretary of State for the Home Department, ("the Secretary of State") appeals against a judgment of Davis J given on 22 October 2004 whereby, upon judicial review, he quashed decisions of the Secretary of State refusing refugee status to Mr Bakhtear Rashid ("the claimant"). The judge also made a declaration that the claimant was entitled to the grant of refugee status and to indefinite leave to remain in the United Kingdom. The claimant's application for asylum had been refused by the Secretary of State on 11 December 2001 and the decision had been upheld by an adjudicator on 7 June 2002. Permission to appeal to the Immigration Appeal Tribunal ("IAT") had been refused on 12 July 2002.
The claimant is an Iraqi Kurd who sought asylum in the United Kingdom on 4 December 2001, relying on Article 1A(2) of the Refugee Convention of 1951 ("the Convention"). The successful claim for judicial review was made on the basis that, if at any time between his arrival and March 2003 the asylum policy which ought to have been applied had been applied, the claimant would have been granted asylum. When, in early March 2003, the claimant's advisers became aware of the relevant policy they requested a reconsideration of the application for asylum.
By the time the decision on the reconsideration was taken, the situation in Iraq had changed considerably as a result of the invasion by coalition forces and the removal of Saddam Hussein's regime. On 26 November 2003, the claimant's representatives were told that "the Secretary of State has not yet reconsidered your client's case in the light of M and A". In a decision letter dated 16 January 2004 asylum was refused upon what is accepted to be a defensible application of the post-war asylum policy. The judge described the question in the case as being, in essence, whether the Secretary of State's decision was "invalid on grounds of unfairness". The judge had in mind unfairness in the sense the word is used in authorities to which it will be necessary to refer.
The relevant policy was described by the Secretary of State in the letter of 16 January 2004:
"…From October 2000, there was in existence within the Home Office a general policy that internal relocation to the former KAZ [Kurdish Autonomous Zone, sometimes described as 'Area'] from government controlled Iraq would not be advanced as a reason to refuse a claim for refugee status. This was based on the stance of the Kurdish authorities of not admitting to their territory those who were not previously resident in that area because of a lack of infrastructure and resources. "
The letter continued:
"However the general policy described was not consistently applied, and caseworkers and presenting officers sometimes argued that internal relocation to the former KAZ for those from government controlled Iraq was a reasonable option if they had close ties to the area."
In the course of his submissions on behalf of the Secretary of State, Mr Tam said that enquiries had been made internally but that the Department had "never got to the bottom of how some caseworkers knew [of the policy] and some did not".
Having considered the current situation in Iraq, the letter went on to state that "the original decision to refuse asylum on 11 December 2001 was sound and is maintained". The Secretary of State is not:
"..now compelled to ignore the current situation in Iraq and the non-existence of any well founded fear on the part of your client in any part of Iraq. To do so would run contrary to the principle established in Ravichandran referred to above. It cannot be characterised as an abuse of the Home Office's power (notwithstanding the existence of the earlier policy) to make its current decision as to your client's entitlement to refugee status, on the basis of the current situation in Iraq."
The principle in Ravichandran [1996] Imm A R 97 is that in asylum appeals, the position is to be considered by reference to the circumstances at the date of the hearing in question. It was held in the House of Lords in Adan v Secretary of State for the Home Department [1999] 1 AC 293 that, under Article 1 A(2) of the Convention, a claimant had to show a current well-founded fear of persecution for a Convention reason and an "historic fear" was not sufficient.
In justifying the decision, the letter goes on to state that the claimant was not "even aware of, let alone relied upon, the existence of the policy". There was no legitimate expectation that he must now be granted refugee status. It was also suggested that, in this particular case, relocation to the KAZ (Kurdish Autonimous Zone, sometimes described as 'Area') was appropriate in view of the fact that the claimant's sisters lived there. That point was subsequently abandoned by the Secretary of State.
In a letter dated 5 August 2004, the Secretary of State recognised:
"(a) that there was a failure to follow the terms of the previous (but now redundant) policy that would, while Saddam Hussein's regime was still in power, have resulted in the grant of refugee status to Mr Rashid, (b) that prior to the military intervention to remove that regime, Mr M and Mr A were granted refugee status; (c) that it took several months to arrive at a final decision as to whether (the claimant) ought to be granted refugee status.. and (d) that during those months (the Claimant) would not have had the same rights as he would have enjoyed had he been granted refugee status."
The reference to M and to A is to two applicants whose position, in all material respects, was identical to that of the claimant. Their appeals to the Court of Appeal were due to be heard on 19 March 2003 but, shortly before the hearing, the existence of the correct policy was brought to the attention of those representing the Secretary of State in the appeals. By letter of 6 March 2003, A's legal representatives were told that the Secretary of State was not, "as a matter of policy, at the time of this case, relying on the availability of internal relocation" to the KAZ and that A would be granted refugee status. The point which was to be argued in the appeals was a different one, whether in the words of the IAT in M (12 August 2002), the KAZ was "a state or state-like entity capable of providing protection that meets the "protection test" on the second limb of Article 1A(2) [of the Refugee Convention]." That point, submits Mr Tam, was (and still is) unresolved. If the availability of internal relocation to the KAZ was not relied on, the point did not of course arise, as the Secretary of State recognised in the cases of M and A.
Following a hearing lasting over two hours, at which the Secretary of State was represented by Counsel, permission to apply for judicial review had been granted to the claimant on 4 February 2003 by Harrison J. The case was ordered to be listed after the Court of Appeal hearings in M and A, the same point, the protection test, being in issue. The case was on all-fours with M and A, as recognised on behalf of the Secretary of State. On 12 March 2003, the Treasury Solicitor's representative wrote:
"As no doubt you will have anticipated I was well aware of the developments in the cases …. in the Court of Appeal behind which this case is stacked."
It was stated that the claimant's case had "as a result of those developments, been referred back to a Senior Home Office case worker early last week for reconsideration."
On hearing of the grant to M and A, the claimant's advisers wrote to the Treasury Solicitor on 12 March 2003 asking for a grant of refugee status to the claimant, submitting that it would be unfair, and contrary to his legitimate expectation, to withhold refugee status having granted it to M and A. Their position, in material respects, was identical.
On 21 March 2003, it was announced that, because of the military action in Iraq, decision making on Iraqi nationals had been suspended as from the previous day and the suspension operated until 16 June 2003. The Secretary of State's decision was given in the letter of 16 January 2004 already mentioned. For completeness, I add that the first judicial review application had become redundant and was withdrawn. The present one was made on 24 June 2003 on the basis that the Secretary of State had failed to apply his policy to the claimant, that there had been a breach of the claimant's legitimate expectation, and conduct so unfair as to amount to an abuse of power.
The judge held that the decisions of the Secretary of State in the letters of 16 January 2004 and 5 August 2004 could not stand. He stated, at paragraph 45:
"It seems to me that in the circumstances of this case, such decisions connote such a degree of unfairness as to amount to a misuse – a word I rather prefer to "abuse" – of policy as to require the intervention of the court."
Having referred to authorities, the judge added, at paragraph 65:
"It will be clear from what I have already said that I take the view that the combination of (a) the unwarranted and unjustified failure on the part of the...
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