R (Shashwar) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BLAIR |
| Judgment Date | 31 July 2008 |
| Neutral Citation | [2008] EWHC 2069 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/6088/2007 |
| Date | 31 July 2008 |
[2008] EWHC 2069 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Blair
CO/6088/2007
MS G WARD (instructed by Duncan Lewis) appeared on behalf of the Claimant
MR M BARNES (instructed by Treasury Solicitors) appeared on behalf of the Defendant
By this claim for judicial review, the claimant seeks to challenge the decision of the Secretary of State for the Home Department, dated 22 June 2007, not to grant the claimant's application for indefinite leave to remain in the UK. His application was made pursuant to paragraphs 4.5 and 9.3 of a document called the Iraq Policy Bulletin 2/2006, which I shall call the 2006 policy. This policy was issued on 1 August 2006, following the judgments of the Court of Appeal in the case of R (on the application of Bakhtear Rashid) v SSHD [2005] EWCA Civ 744 and the judgment of Collins J in R (A, H, and AH) V SSHD [2006] EWHC 526 Admin. Permission was given by Simon J on the papers on 7 November 2007.
The background to the case is as follows. During the period 1991 to 2003 Iraq was essentially divided into two. The Kurdish Autonomous Zone or Kurdish Autonomous Area as it was sometimes known was in the north, and the Government Controlled Area of Iraq, which is usually described as the GCI, was in the south of the country.
The claimant arrived in the United Kingdom on 4 November 2002. He is a man of Kurdish ethnicity from the city of Kirkuk, which is within the GCI, albeit close to the Kurdish Autonomous Zone. He claimed asylum on arrival, which was refused on 30 December 2002. The reasoning supporting this decision included, among other things, a finding by the SSHD that the claimant was not credible and that the SSHD could not be satisfied that he was from Iraq. No complaint is or could be made of the refusal letter. It was a perfectly proper decision to make on the information that was available.
The claimant's appeal to the adjudicator was heard on 25 September 2003. According to the defendant, at the hearing the claimant produced an Iraqi identity card on the basis of which the SSHD accepted that the claimant was from Iraq. The adjudicator nevertheless dismissed the appeal in a determination dated 4 November 2003 on the basis that his fear of persecution was not objectively well founded.
In summary, therefore, the claimant was originally thought not to be from Iraq, but that was in fact wrong. He was from Iraq, specifically from the Government Controlled Area of Iraq, and that was accepted by the defendant by the time of the asylum appeal hearing.
In the meantime there had been a development. Prior to February 2003 the SSHD had a policy in place to the effect that failed asylum seekers from Iraq would normally be granted four years' exceptional leave to remain (ELR). This reflected the difficulties that failed asylum seekers were known to face on return to Iraq at the hands of the Saddam Hussain government. This policy came to an end on 20 February 2003, just before the regime was toppled.
In 2005 and 2006 the judgments were handed down in the Rashid and AH cases that I mentioned earlier. The substance of these judgments was that the SSHD had failed properly to make known and implement policies in respect of Iraqi asylum seekers, including, in the case of AH, the four-year ELR policy I have just described. It was held that the degree of resulting unfairness was such that it could be properly remedied by the SSHD only by retrospectively giving effect to those policies.
Those were the circumstances in which the SSHD issued the 2006 policy on 1 August 2006. Reading from paragraph 1.1:
“This Bulletin has been produced by the Country Specific Asylum Policy Team, Immigration & Nationality Directorate, Home Office to provide further guidance to decision makers considering the implications of the Court of Appeal judgment in the case of Rashid and the High Court judgment in the cases of R(A (H) & (AH) on asylum or human rights claims made by Iraqi nationals.”
So far as this case is concerned, the relevant part of the policy is to be found in paragraphs 4.5 and 9.3.
Paragraph 4.5 provides, so far as relevant, that for an individual to fall within the scope of the AH case, he or she would need to:
“I. Have been from the government controlled area of Iraq (GCI) and refused by the Secretary of State between April 1991 and 20 February 2003 (when the practice was to grant 4 years' ELR to claimants from GCI), and
“II. Have not been granted 4 years' ELR.”
By paragraph 9.3:
“If the case is found to fall within the scope of the Rashid judgment and/or R(A):H … then ILR … should be granted.”
On 25 September 2006 the claimant submitted an application for indefinite leave to remain on the basis that his application for asylum had been refused by the SSHD on 30 December 2002, that he was from the GCI, and that he should accordingly have benefitted from the four-year ELR policy dealt with in the case of AH. The claimant relied on paragraphs 4.5 and 9.3 of the policy which I have just described.
The SSHD responded by a letter dated 18 April 2007, refusing to grant the claimant ILR on the basis that the SSHD had not accepted that he was from the GCI when reaching the decision dated 30 December 2002 and that, although he had been accepted as being from the GCI at the hearing before the adjudicator on 25 September 2003, by this time the four-year ELR policy was no longer in force.
Against that factual background, I come to deal with the arguments put forward by the parties. The claimant's case could not be more straightforward. Whatever may have been thought at the time, the claimant in fact is from the Government Controlled Area of Iraq. On that basis, Ms Ward for the claimant submits he falls within the plain wording of paragraphs 4.5I and II of the 2006 policy, and should therefore be granted ILR under paragraph 9.3.
Mr Barnes for the Treasury accepted that the SSHD was required to act in accordance with her own policy, save where good reasons are given for departing from it. If on its true construction the court found the claimant to fall within paragraph 4.5, then he would, as he put it, not seek to persuade the court that the claimant should not benefit from the policy. He did, however, have a supplementary point that the policy can be disapplied with good reason. But in essence the argument came down to one of construction.
Mr Barnes says that paragraph 4.5 must be read to mean that the individual has satisfied the Secretary of State at the relevant time that he was from the GCI. The claimant failed to do that in a decision which was lawful in itself, and therefore he falls outside paragraph 4.5 upon its proper construction.
In assessing these arguments, it is important to begin with an obvious point. The 2006 policy is just that. It is a policy which the minister can change. It is not framed in terms of a law and it is not to be construed as such.
Mr Barnes went further, and argued that it is a matter for the SSHD to construe her own policy and apply it, subject to questions of reasonableness, so that the question for the court is whether or not the interpretation of the policy by the SSHD is one that was reasonably open to her.
He relies upon a judgment of this court in ...
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