COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
MR JUSTICE DAVIS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MAY
LORD JUSTICE DYSON
| THE SECRETARY OF STATE FOR THE
|- and -
|THE QUEEN ON THE APPLICATION OF
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MR R SINGH QC & MR R HUSAIN (instructed by The Refugee Legal Centre) for the Respondent
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LORD JUSTICE PILL:
" 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. "
"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".
"..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  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  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.
"(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.
"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."
"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 Secretary of State to apply his policy to the claimant at the time of his original asylum application when, had it been so applied, he would have been granted refugee status, and (b) the differentiation in treatment and consequent outcome accorded to Mr M and Mr A as compared to the claimant, and (c) the intervening moral detriment occasioned to the claimant, do, when all the factors are taken together, evince such a degree of unfairness as to amount to a misuse of power and to require the court's intervention."
At paragraph 69, the judge stated:
" I consider that the only proper decision that can be reached is to accord the claimant refugee status and the concomitant indefinite leave to remain. I am not inclined to make a mandatory order against the Secretary of State as Mr Husain has asked; but I am prepared to grant the appropriate declaratory relief for that purpose."
"The court can only intervene by judicial review to direct the Commissioners [Inland Revenue Commissioners] to abstain from performing their statutory duties or from exercising their statutory powers if the court is satisfied that "the unfairness" of which the applicant complains renders the insistence by the Commissioners on performing their duties or exercising their powers an abuse of power by the Commissioners".
Lord Templeman cited the judgment of Scarman LJ in HTV Ltd v Price Commission  ICR 170, where, at page 189, Scarman LJ stated:
"It is a common place of modern law that such bodies [the Price Commission] must act fairly it is not really surprising that a code must be implemented fairly, and that the courts have power to redress unfairness".
"These points cumulatively persuade me that on the unique facts of this case the Revenue's argument should be rejected. On the history here, I consider that to reject Unilever's claims in reliance on the time limit, without clear and general advance notice, is so unfair as to amount to an abuse of power".
"'Unfairness amounting to an abuse of power' as envisaged in Preston and the other Revenue cases is unlawful not because it involves conduct such as would offend some equivalent private law principle, not principally indeed because it breaches a legitimate expectation that some different substantive decision will be taken, but rather because either it is illogical or immoral or both for a public authority to act with conspicuous unfairness and in that sense abuse its power. As Lord Donaldson MR said in R v ITC, ex p TSW: 'The test in public law is fairness, not an adaptation of the law of contract or estoppel'."
"Legitimate expectation may play different parts in different aspects of public law. The limits to its role have yet to be finally determined by the courts And without injury to the Wednesbury doctrine it may furnish a proper basis for the application of the now established concept of abuse of power".
"If there has been an abuse of power, I would grant appropriate relief unless an overriding public interest is shown, and none to my mind has been demonstrated. But the real question in the case is whether there has been an abuse of power at all. The government's policy was misrepresented through incompetence. It is not in truth a change of policy at all."
On the facts of that case, Laws LJ held that they did not "elevate the Secretary of State's correction of his error into an abuse of power".
Lord Justice May:
Lord Justice Dyson:
"In all legitimate expectation cases, whether substantive or procedural, three practical questions arise. The first question is to what has the public authority, whether by practice or promise, committed itself; the second is whether the authority has acted or proposes to act unlawfully in relation to its commitment; the third is what the court should do."