England and Wales High Court (Administrative Court) Decisions

Joseph, R (on the application of) v Secretary of State for the Home Department [2002] EWHC 758 (Admin) (19th April, 2002)

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		19th April 2002

JACK BEATSON Q.C.:-

1. The Claimant, a Sierra Leonean national, arrived in the UK on 8 July 2000 and claimed asylum on arrival. On 12 October 2000 the Secretary of State refused the asylum claim on the ground that the Claimant had not returned the statement of evidence form (hereafter “SEF”) as required and on 21 November he set directions for his removal to Sierra Leone. The two letters apparently reached the Claimant’s representatives on 27 November.

2. On 28 November an appeal was lodged against the decision on the ground - now accepted by the Secretary of State - that the statement of evidence form had been submitted in time and that in issuing removal directions the Secretary of State had erred in failing to apply his own policy on Sierra Leoneans. The policy in force at that time is contained in a letter dated 4 February 2000 from the Immigration and Nationality Directorate to the Refugee Legal Centre. This stated that in view of the situation in Sierra Leone: “those Sierra Leoneans who do not qualify for asylum will normally be granted 4 years exceptional leave”. This policy was kept under review in the light of the situation in Sierra Leone, see for example the Home Office’s letter of 5 March 2001, and remained in force until 6 September 2001.

3. On 4 May 2001 the Claimant’s representatives wrote indicating that consideration was being given to instituting judicial review proceedings in respect of both the decision on the asylum claim and the failure to grant exceptional leave in accordance with the policy on Sierra Leoneans. The application for permission was made on 17 May. On 31 May the Home Office’s Immigration and Nationality Directorate wrote accepting that the SEF had been returned in time, and stating that he was withdrawing the decision of 12 October 2000 refusing asylum and that the Claimant would be invited to attend for interview on a date to be arranged. The letter stated that “the earlier decision to refuse asylum will not prejudice our consideration of your client’s claim. We will take a fresh decision on your client’s application for asylum after the asylum interview has been conducted”. It apologised for any confusion caused by the administrative error and any inconvenience this may have caused, and suggested that the intention to seek judicial review might be reconsidered. On 8 June the Treasury Solicitor wrote stating that in view of the withdrawal of the decision of 12 October the appropriate course was for the Claimant to withdraw his application for judicial review. There was further correspondence during August. The Treasury Solicitors stated inter alia that since exceptional leave is leave exceptionally granted outside the immigration rules, the Secretary of State must first consider whether it is appropriate to grant leave to remain within the rules, in this case by granting refugee status. The Claimant’s representatives indicated that they would withdraw the judicial review proceedings if the Claimant was given exceptional leave to remain. The letter of 31 May and the subsequent correspondence was apparently not before the Court when Maurice Kay J granted permission on 3 July 2001; neither was there an acknowledgement of service from the Defendant.

4. A further invitation to withdraw the proceedings was made by the Treasury Solicitors on 30 August 2001, after the application entered the warned list. This letter set out the position of the Secretary of State in some detail, both in relation to the grant of exceptional leave to remain and in relation to the consequences of the withdrawal of the flawed refusal of asylum and the fresh consideration of the asylum claim. It was said that the Secretary of State has, as far as he can, tried to avoid the Claimant suffering any undue prejudice as a result of his wrongful refusal of asylum.

5. On 6 September 2001 the Home Office announced that in the light of the continuing improvement in the country situation in Sierra Leone the Secretary of State had decided to end the policy of normally granting Sierra Leonean asylum applicants who do not qualify for asylum four years exceptional leave. The Claimant was invited to attend an asylum interview in October 2001 but failed to attend as a result of fault on the part of his representatives. He attended one in February 2002. After being interviewed, his application for asylum was determined and refused by the Secretary of State.

6. The issue in this case is whether the fact that at the time of the erroneous decision of 12 October there was a policy of granting exceptional leave to Sierra Leoneans refused asylum meant that, notwithstanding the withdrawal of that decision, when the Secretary of State eventually decided the application for asylum, fairness required him to apply that policy in the Claimant’s case. The case for so doing was primarily put on the basis of legitimate expectation and in considering the submissions made on behalf of the parties it is useful to bear in mind the framework for such cases set out in ex p Bibi [2001] EWCA Civ 607. It was stated that:

“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 by 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.”

Submissions on behalf of the Claimant

7. Mr Bazini, on behalf of the Claimant, submits that on 12 October 2000 the Claimant had a legitimate expectation of either being granted asylum or exceptional leave to remain. Mr Bazini stated that the Claimant was in a “win/win” situation because when the Secretary of State purported to make the decision of 12 October, the policy of granting exceptional leave to Sierra Leoneans who did not qualify for asylum applied. It was unlawful for the Home Office to disregard the policy, as it had done in the directions for removal. Mr Bazini submitted that in the circumstances it was unfair and an abuse of power for the Secretary of State to disregard the Claimant’s legitimate expectation by considering the asylum claim afresh and if that was refused to consider the Claimant’s position under the new policy. It was he submitted unfair not to apply the policy as it stood at the time of the refusal of asylum on 12 October to the Claimant’s case because the Secretary of State would thus be relying on his own error and the consequent delay to the prejudice of the Claimant. He maintained, on the basis of statements in ex p Coughlan [2000] 2 WLR 622 and ex p Bibi [2001] EWCA Civ 607, that reliance and detriment are not necessary especially where the person seeking to enforce the expectation is otherwise vulnerable, and noted the reference in the Secretary of State’s representatives’ letter of 30 August to avoiding prejudice to the Claimant as a result of the wrongful refusal of asylum. Notwithstanding that, on 28 September the Treasury Solicitors had written to the Claimant’s representatives stating that if a refusal of asylum is made “a decision will be taken as regards ELR in accordance with the policy in force at that time” and that “there are no exceptions to the applications of this policy”. Mr Bazini submitted that there was sufficient prejudice if a policy not in force until after 12 October 2000 was applied. This was because, but for the mistake and the consequent delay, the former policy would have been applied and the Claimant given exceptional leave to remain. There was no evidence that but for the error and delay the decision on asylum would not have been taken at a time that the former policy applied. If the former policy is not applied the Claimant, who did return the form, would be in a worse position than a person who did not return it.

Submissions on behalf of the Secretary of State

8. On behalf of the Secretary of State, Miss Grey accepted that the directions for removal made on 21 November 2000 should not have been made and could be quashed, but submitted that quashing those directions would not deal with the dispute before the court. On the dispute, she submitted that in the circumstances of this case there was no legitimate expectation that exceptional leave would be granted, and that it would not, in the absence of detrimental reliance by the Claimant, be unlawful for the Secretary of State to apply the current policy on exceptional leave to the Claimant’s case.

9. Her first point was that until the Claimant’s asylum status had been determined there was no question of granting exceptional leave to remain. It followed that any legitimate expectation as to the granting of such leave was contingent on there being a determination that a person does not qualify for asylum and only “bites” when there is such a determination. This was, she submitted, clear from the terms of the policy which stated that those who “do not qualify for asylum” will normally be granted 4 years exceptional leave. Prior to the determination of a Sierra Leonean’s asylum claim, there was accordingly no practice or promise by the Secretary of State concerning exceptional leave for such an asylum seeker.

10. Secondly, it was the Claimant who sought the removal of the flawed asylum decision of 12 October and the reinstatement of his application for asylum. This was done and it was not open to the Claimant now to rely on that flawed decision as the basis for the application of the former policy.

11. Miss Grey submitted that on the facts of the present case, for the above reasons, the Claimant did not have a legitimate expectation because any “practice or promise” was contingent and could not give rise to a legitimate expectation. But she also submitted that, in any event, if there was any commitment, the Secretary of State was not proposing to act unlawfully in respect of it.

12. First, it was open to the Secretary of State to correct errors. The decision in ex p Begbie [2000] 1 WLR 1115 showed that situations in which an administrative body made an error which it subsequently corrected do not give rise to a legitimate expectation, at least in the absence of detrimental reliance. In ex p Begbie an error had been made in setting out the Secretary of State for Education and Employment’s policy on assisted places which was subsequently corrected. Lord Justice Peter Gibson stated (at 1127) that where a mistake is made “the court will be slow to fix the public authority permanently with the consequences of that mistake”. Lord Justice Laws stated (at 1131) that the correction of the mistake was not an abuse of power while recognising that, had there been reliance and detriment in consequence of the mistake, it could well have been an abuse of power for the Secretary of State not to make the earlier representations good. In the present case the error was as to the factual position rather than in setting out the Secretary of State’s policy, but the position was analogous. In her submission there was no detrimental reliance because the Claimant had taken no steps or lost any pre-existing rights as a result of the decision made on 12 October. Miss Grey submitted that in the absence of the error about the return of the SEF the substantive decision would only have been taken after an asylum interview and that the Claimant had not demonstrated that any such decision would have been taken prior to the change of policy on exceptional leave. In the present case the claim for asylum was made on 8 July 2000, the SEF was returned on 17 July and the policy was changed on 6 September 2001. Miss Grey submitted that delays of about a year were commonplace at that time and that the burden lay on the Claimant to establish the detriment. I should add that there was no suggestion that the decision as to the timing of the rescheduled interviews was affected by the prospect that there might be a change of policy.

13. Secondly, once the flawed decision had been withdrawn the decision-maker was free to re-decide the case in the light of the circumstances which exist at the time of the second decision. For this, reliance was placed on the speech of Lord Hoffmann in ex p Zeqiri [2002] UKHL 3, para 42. His Lordship stated that “the normal position in public law where a decision is quashed is that the decision-maker is free to reconsider the decision in the light of the material circumstances then prevailing”. Although that concerned the position of a decision which had been quashed, the submission was that the position of a decision that was withdrawn because it was flawed and liable to be quashed was a fortiori. Reliance was also placed on the decision in Re Findlay [1985] AC 318 where Lord Scarman stated (338) that in the context of parole “the most that a convicted prisoner can legitimately expect is that his case will be examined individually in the light of whatever policy the Secretary of State sees fit to adopt …”.

14. Thirdly, Miss Grey submitted that to require the Secretary of State to determine whether the Claimant should be granted exceptional leave in the light of the former policy would undermine the purpose underlying the power to grant exceptional leave to remain. The general country policy normally to grant such leave to sierra Leoneans was formed because of turmoil in Sierra Leone. By September 2001 that consideration no longer applied so that (see paragraph 9 of the Defendant’s Skeleton argument) “if the Secretary of State is required now to exercise the power to grant ELR in the Claimant’s favour on the basis of a superceded policy, he will be required to use it, in effect, in a way which undermines the purpose of the power to grant exceptional leave because the Secretary of State’s judgment is that its general grant to all from Sierra Leone is no longer required.

Conclusions

15. I accept Miss Grey’s submission that on the facts of the present case the Claimant did not have a legitimate expectation. Mr Bazini’s analysis of the situation does not in my judgment sufficiently reflect two aspects of the facts of the present case. First, there was no unqualified practice or promise (the first of the three stages set out in ex p Bibi) and any practice or promise with regard to exceptional leave was contingent upon a decision that a Sierra Leonean asylum applicant did not qualify for asylum. Secondly, the Claimant was not basing his claim to a legitimate expectation of being granted exceptional leave on a valid refusal of asylum but on a flawed refusal which was withdrawn. It was indeed withdrawn at his request, and its validity was challenged in the application for permission to move for judicial review in these proceedings. I have concluded that the contingent nature of any commitment with respect to exceptional leave precluded a legitimate expectation arising until a valid decision on the asylum application had been made, particularly where the Claimant is not and has not relied on the validity of the flawed refusal but has challenged it and secured its withdrawal. The fact situation is different to that in ex p Bibi where there was a clear promise to provide secure accommodation. Here the Claimant in effect fell at the first of the three stages set out in ex p Bibi.

16. If, contrary to my conclusion above, it was correct to take a broader approach to the situation so that the first of the three stages set out in ex p Bibi is satisfied and there is what might be termed a prima facie legitimate expectation, what is the position? In many cases the correction of an erroneous decision by a public body benefits the individual affected by it and there will be both a benefit to the individual and a public benefit in it being corrected. In the present case, because of the change in policy the ultimate effect is to preclude the individual from benefiting from a policy from which he might have benefited. Nevertheless, in my judgment, for the reasons given in ex p Begbie, prima facie it was open to the Secretary of State to correct the erroneous rejection of the claim for asylum on non-compliance grounds by the withdrawal of the decision and the making of a fresh decision. Indeed in the absence of a strong countervailing factor he might be required to do this. The question then arises as to whether the fresh decision is to be made on the basis of the factual circumstances and policies which exist at the time it is made. In my judgment again prima facie it is legitimate to do so; see ex p Zeqiri [2002] UKHL 3, para 42 and Re Findlay [1985] AC 318, paragraph 13 above.

17. But, as what Lord Justice Laws stated in ex p Begbie shows, the position is likely to be different where there has been detrimental reliance. In the present case there is no detrimental reliance in the sense that the Claimant altered his position in reliance on the flawed asylum decision. Mr Bazini submits that there is no need for the Claimant to show detriment but, in the course of the hearing, argued there was detriment to the Claimant in that, but for the delay that resulted between the time the flawed decision was made and the time the Secretary of State agreed to withdraw it, the asylum decision would have been made before the change of policy. Miss Grey submits that delays of about a year were commonplace at that time and that the burden lay on the Claimant to establish the detriment which he has not done. In view of the well known delays in the determination of asylum claims at that time I have concluded, although not without hesitation, that the Claimant has not demonstrated that fact that but for the delay occasioned by the flawed decision the asylum interview and decision would have taken place before the change of policy. Accordingly, I do not consider that detriment has been shown in the present case.

18. I have referred to the Treasury Solicitors’ letter of 28 September. That states that “a decision will be taken as regards ELR in accordance with the policy in force at that time” and that “there are no exceptions to the applications of this policy”. It has given me some cause for concern because it appears from the letter that it may not have been acknowledged that the error made regarding the SEF and the resulting delay in the determination of the asylum claim were relevant considerations in considering exceptional leave. On the basis that, as I have decided, the first of the three stages set out in ex p Bibi was not reached because of the contingent nature of any expectation, the approach can be justified.

19. For the above reasons the Claimant’s application is dismissed. I have great sympathy for the Claimant but it is not possible in my view to say that there are grounds which entitle the Court to require the Secretary of State to apply the previous policy.