S and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Goldring,Lady Justice Arden,Lord Justice Laws |
| Judgment Date | 25 February 2009 |
| Neutral Citation | [2009] EWCA Civ 142 |
| Date | 25 February 2009 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CO/3988/2006 C4/2008/0980 C4/2008/0976 |
[2009] EWCA Civ 142
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Michael Supperstone QC, sitting as a Deputy High Court Judge
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lady Justice Arden and
Lord Justice Goldring
CO/3988/2006
Case Nos: C4/2008/0992
C4/2008/0980
C4/2008/0976
Manjit Gill QC and Sonali Naik (instructed by Lawrence Lupin and Dexter Montagu Solicitors) for (1) ' S' & (3) 'Q'
Manjit Gill QC and Christopher Jacobs (instructed by Duncan Lewis Solicitors) for (2) H'': Appellants
Robert Jay QC and Robert Palmer (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 14 January 2009
Lord Justice Goldring :
Introduction
Mr. Siaka (“S”) comes from Sierra Leone. He arrived in the United Kingom on 9 January 2000, and claimed asylum. Mr. Hotak (“H”) and Mr. Quarashee (“Q”) are both now accepted to come from Afghanistan. They arrived respectively on 25 February 2000 and 21 November 2000.
Between 4 February 2000 and 6 September 2001 the Secretary of State's policy in respect of Sierra Leone was that:
“Those Sierra Leoneans who do not qualify for asylum will normally be granted 4 years exceptional leave. It will be open to applicants to apply for settlement towards the end of the 4 year period.”
Absent particular circumstances which do not apply in S's case, exceptional leave to remain (“ELR”) would as a matter of course be followed by indefinite leave to remain (“ILR”).
The policy in respect of Afghanistan is encapsulated by the Operational Guidance Note of February 2003 which states that:
“On 18 April 2002 the long-standing practice of granting exceptional leave to remain (ELE/R) for a period of 4 years to those applicants from Afghanistan who did not meet the criteria in the 1951 UN Refugee Convention for Asylum was altered. As a result of changing country conditions Ministers agreed that the period of exceptional leave granted to applicants who do not meet the criteria for asylum would be reduced to 12 months. This policy applied to all final decisions made as from 18 April 2002 until 10 July 2002…
…Those applicants previously granted 4 years ELE/R whose period of ELR comes to an end and who did not take up the opportunity for voluntary return will normally be granted ILR. There may be specific cases where this will not be appropriate eg. in the light of the conduct of an individual “
In neither H's nor Q's case is it said ILR would not have been appropriate.
The appellants' claims for asylum failed. Each however says that although not eligible for asylum and in need of international protection, because of the way the Secretary of State dealt with his claim, he has been deprived of the benefit of the policy applicable to him. He should now be treated as if he had been granted 4 years' ELR in accordance with that policy. The Secretary of State has acted unlawfully in refusing him the ILR which would have followed the granting of 4 years' ELR.
The applicable law
I start with the basic general principle. It is not in dispute. The decisions which it is sought to quash are those refusing to grant ILR. The lawfulness of those decisions is to be assessed by reference to the law and facts obtaining at the time they were taken: see Ravichandran [1996] Imm AR 97. At the time they were taken the policies were no longer in force. It was safe for the appellants to return home.
Although many different submissions are advanced by Mr. Gill QC in his lengthy skeleton arguments on behalf of the appellants, his primary argument is that in each case the Secretary of State's refusal now to grant ILR is in breach of the appellant's legitimate expectation and so conspicuously unfair as to amount to an abuse of power in the sense identified by this court in Rashid v Secretary of State for the Home Department [2005] EWCA 744. Each appellant, it is said, had a legitimate expectation that before the policy which applied to him was withdrawn, he would be granted 4 years' ELR in accordance with it. That would have resulted in ILR. That substantive legitimate expectation was frustrated because of a serious administrative breakdown in the Immigration and Nationality Directorate. In now refusing ILR the Secretary of State has failed to have sufficient regard to her predecessor's previous unlawful failure to fulfil the appellants' legitimate expectation that they would benefit from the policy. Had she had sufficient regard to that previous illegality, and taking into account events since, she would have granted ILR. Her refusal to do so was conspicuously unfair and amounted to an abuse of power.
He further submits that whether or not there was previous illegality, the appellants are in all the circumstances entitled to relief.
The authorities
Mr. Rashid was an Iraqi Kurd. His claim for asylum was refused by the Secretary of State and on appeal, at a time when there existed a Home Office Policy to the effect that internal relocation in the Kurdish Autonomous Area of Iraq would not be relied upon as a reason to refuse refugee status. The policy was in force between December 2001 and 21 March 2003. On 12 March 2003, (in other words, when the policy was still in force), Mr. Rashid's solicitors wrote to the Secretary of State, both drawing attention to it and explaining how it had been applied by the Secretary of State to two other cases procedurally linked to Mr. Rashid's. The Secretary of State responded on 16 January 2004. In the light of the policy's withdrawal the Secretary of State refused to grant asylum and ILR.
Dyson LJ defined the “stark question” which arose in Rashid, in the following terms:
“…which of the two considerations should prevail: justice and fairness which suggest the conclusion that, even if he is not now accorded full refugee status, the claimant should at least not be returned to Iraq, or the principle in Ravichandran, which suggests that he should be returned to Iraq. “
The facts were striking (and as will become apparent, of quite a different order to those in the present cases). As Pill LJ said:
“[13] The failures in the Home Office in this case were startling and prolonged…
[31] I find it difficult to understand how the failure to apply the correct policy…can have been persisted in for such a long period…I am unable to understand why a fundamental element in the asylum policy…was unknown to all those who dealt with the…case. No explanation has been offered…Further, a bad point…was taken against the claimant's case on its own facts…
[36] I agree with the judge's conclusion that the degree of unfairness was such as to amount to an abuse of power requiring the intervention of the court. The persistence of the conduct, and lack of explanation for it, contribute to that conclusion. This was far from a single error in an obscure field. A state of affairs was permitted to continue for a long time and in relation to a country which at the time would have been expected to be at the forefront of the respondent's deliberations. I am very far from saying that administrative errors may often lead to a finding of conspicuous unfairness amounting to abuse.”
Dyson LJ agreed. At paragraph 53 of his judgment he said:
“In the absence of any explanation, I consider the court is entitled at the very least to infer that there has been flagrant and prolonged incompetence in this case. This is a far cry from the case of a mistake which is short-lived and the reasons for which are fully explained. The unfairness in this case has been aggravated by the fact…the claimant was not treated in the same way as M and A, with whose cases his case had been linked procedurally. Had he been so treated, he would have had the benefit of the policy and been accorded full refugee status.”
In short, Rashid was a case in which, among other things:
(1) A substantive decision was taken to refuse asylum when under the policy existing at the time it should have been granted.
(2) Throughout the claim for asylum and subsequent appeals the policy was not applied when it should have been.
(3) It was persistently argued that asylum should not be granted.
(4) In the face of many requests there was a failure to disclose until shortly before the Court of Appeal was due to hear the case that the policy had been applied to two other people in almost identical circumstances to Mr. Rashid and whose cases were linked procedurally to his. That was so even though Mr. Rashid during the currency of the policy was asking to be treated in a manner consistent with others.
(5) No explanation was offered for what had happened.
(6) No countervailing public interest was put forward.
As to the principle he was applying, Pill LJ said:
“[25] In my judgment, there plainly is a legitimate expectation in a claimant for asylum that the Secretary of State will apply his policy on asylum to the claim. Whether the claimant knows of the policy is not, in the present context, relevant…
[34] I accept [the Secretary of State's] submission that this is not the typical case of legitimate expectation…It is…a claim of unfairness amounting to an abuse of power, of which legitimate expectation is only one application. The abuse is based on an expectation that a general policy for dealing with asylum applications will be applied and applied uniformly. Serious errors of administration have resulted in conspicuous unfairness to the claimant.”
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