QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF BAKHTEAR RASHID||(CLAIMANT)|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR S GRODZINSKI (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
"I do not believe that the Appellant has given a credible account of why he left Iraq."
He further noted that, as the claimant would not be removed to Makhmur but to the KAZ, he would not be at risk of adverse treatment there; that if he were returned to Iraq he would not be of any adverse interest to the Iraqi government; and that it would not be unduly harsh to remove him to the KAZ.
"3. It is true that the Adjudicator did not give reasons for his finding that the Appellant did not give a credible account of why he left his home area Iraq. This is because he found that the Appellant would not be removed other than to the KAA and therefore focused on whether the Applicant could establish a well-founded fear of persecution there, and if internal relocation to the KAA would be unduly harsh."
And at paragraph 5:
"5. Therefore, although the Adjudicator did not give a reasoned explanation for his finding that the Applicant had no fear even in his home area, this could make no difference to the end result, because he reached proper conclusions both on internal relocation and on undue harshness. As the Applicant failed to satisfy the fear test in relation to the KAA, the issues raised about the protection test do not arise."
Thus an essential basis for the Immigration Appeal Tribunal's refusal of permission to appeal was that the claimant would be, and could properly be, relocated to the KAZ.
"I am writing to let you know about a couple of changes that are taking effect today in the handling of asylum claims from Iraqi nationals."
The first change was then set out and then this was said:
"At the present time, we will not be applying the option of internal relocation to the KAZ for applicants from Government controlled Iraq."
"Although the Secretary of State remains of the view that the Tribunal's determination is correct as a matter of law, he was not, as a matter of policy at the time of this case, relying on the availability of relocation from southern Iraq to the KAA.
Accordingly, the Secretary of State will shortly be writing to your client granting him refugee status and would therefore invite you to withdraw your appeal."
"We now know from Ms Townsend's letter that at the time decisions were taken by the Secretary of State in Mr Rashid's case, it was not the Secretary of State's policy to rely on 'the availability of relocation from southern Iraq to the KAA.
The clear rationale underpinning the Secretary of State's recent decisions in Anwar and Maghdeed also applies to Rashid, since it would clearly be unfair, and contrary to a legitimate expectation that has been conferred on Mr Rashid, for refugee status to be withheld from him notwithstanding the grants to Anwar and Maghdeed.
I would be grateful if you could confirm within the next 14 days that refugee status will be granted, failing which we reserve the right to bring an application for judicial review without further reference to you."
"As no doubt you will have anticipated I was well aware of the developments in the cases being handled by my colleague Sarah Townsend in the Court of Appeal behind which this case is stacked. Your client's case had, as a result of those developments, been referred back to a Senior Home Office caseworker early last week for reconsideration. It is however unlikely that a full review will have been undertaken and any decision communicated to you in the time period suggested in your fax."
(I should perhaps add, because of the reference to "stacking", that I was informed at the hearing before me that so far as the Secretary of State is aware currently no case other than this claimant's is awaiting resolution on the particular point now raised.)
"The first judicial review of the refusal of leave to appeal by the IAT is in the process of being withdrawn, in recognition of the fundamental changes in conditions in Iraq following the Tribunal's decision to refuse leave to appeal, and in recognition of the unreality of insisting upon a classic historical 'date of decision' focus in the first judicial review claim."
"The summary grounds of defence submitted on behalf of the Secretary of State for the Home Department in response to the above application for judicial review acknowledged that that Secretary of State had identified a reason why he should look again at Mr Rashid's case to see whether the original refusal of asylum ought to stand in the light of the Secretary of State's decision to grant refugee status to Maghdeed and Anwar. I am very sorry that you have not had an earlier response. This was due in part to the suspension of decision making on Iraqi cases due to the outbreak of hostilities in the Gulf and the need to resolve certain policy and legal issues.
2. Mr Rashid's case has now been fully reviewed at senior caseworker level. I am writing to let you know that following careful consideration it has been concluded that the original decision to refuse asylum on 11 December 2001 was sound and is maintained.
9. In accordance with this premise, and in accordance with the basic principle set out in the well known case of Ravichandran, Mr Rashid's substantive claim has first been reviewed looking at the situation in Iraq as of now. (We deal with the separate issue of legitimate expectation below.)
14. In the light of all the evidence above it has been concluded that Mr Rashid has not established a well-founded fear of persecution and that he does not qualify for asylum.
15. Careful consideration has been given as to whether the alleged treatment referred to in Mr Rashid's claim might involve a breach of Article 3 of the ECHR if he were returned to Iraq, but for the reasons stated it is not considered that Mr Rashid has demonstrated a real risk of treatment contrary to Article 3. Therefore Mr Rashid does not qualify for Humanitarian Protection. Careful consideration has also been given as to whether Mr Rashid should qualify for discretionary leave in the United Kingdom but he has not raised any issues which would give rise to such a grant of leave."
"16. We now turn finally to the basis of your judicial review challenge based upon the argument that Mr Rashid had a legitimate expectation that he would benefit from a policy to the effect that in the case of persons with well founded fears of persecution in Government-controlled Iraq, the Home Office would 'disavow reliance' on the 'internal relocation option': i.e. would not contend that such persons should have relocated to the KAZ.
17. First, I will seek to clarify the policy to which you refer in your current challenge. From October 2000, there was in existence within the Home Office a general policy that internal relocation to the former KAZ 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.
18. (Given the basis of the policy as set out above, it did not (save as set out below) apply to those persons who came from the KAZ. For example if a Kurd from the KAZ experienced difficulties with one or other of the two parties that exercised de facto control in the KAZ, then depending on the circumstances of the case we might argue internal flight to the area in KAZ controlled by the other party. However there remained an exception to this part of the policy, relating to high profile opponents of Saddam's regime; this exception arose because of the perceived inability of the authorities in the KAZ to provide sufficient protection in such cases.)
19. 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.
20. As you will be aware, the Immigration Appeal Tribunal had originally allowed Mr Maghdeed's appeal because it found that the KAZ was not a state or state-like entity that was capable as a matter of law of providing protection under the terms of Article 1A(2) of the Refugee Convention and that in consequence could not (by definition) offer a safe relocation option. In view of that finding the policy described above changed. Notwithstanding that we were of the opinion that the Tribunal had erred in law in reaching this conclusion on 23 October 2002 we issued guidance pending our appeal to caseworkers that they should no longer argue the internal relocation option even within the Zone.
21. However, subsequent Tribunal decisions found that the PUK and KDP were state-like entities that were capable of offering protection to those who resided in their respective territories. Consequently we reverted to our previous policy of applying the option of internal relocation within the KAZ for those who had previously resided there. However, for the same reason that informed our October 2000 policy, we continued not to argue internal relocation from government controlled Iraq to the former KAZ. This change of policy was explained in a letter to the Immigration Law Practitioners Association on 20 February.
22. When, shortly prior to the Court of Appeal hearing in Maghdeed and Anwar, the existence of the policy described above was, in general terms, brought to the attention of those representing the Home Office, an urgent decision was taken (considered to be appropriate at the time) that those two individuals ought to be granted refugee status.
23. However in light of your current challenge, the Home Office has carefully reconsidered the position both generally and on the facts of your client's case to see whether he should now be granted refugee status, and have concluded that he should not. The existence of the policy and the decision in those two cases cannot mean that the Home Office is (as your challenge impliedly suggests) 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.
24. Further, your client does not suggest that he was even aware of, let alone relied upon, the existence of the policy. On the contrary, the original 'reasons for refusal' letter (dated 11th December 2001; as amended in a non-material respect by the letter of 14th May 2002) made clear that the Home Office was, on the facts of your client's case, indeed relying on the internal relocation option as one of the reasons for rejecting his claim. The same position was adopted by the Home Office Presenting Officer in the hearing before the Adjudicator.
25. Further, the departure from the general policy was plainly for rational reasons in the circumstances of your client's case. As made clear from paragraph 34 of the adjudicator's determination, the Presenting Officer submitted that it would have been appropriate for your client to have relocated to the KAZ given in particular that two of his sisters lived there.
26. In all these circumstances, it is not accepted that your client has any legitimate expectation the effect of which is that he must now be granted refugee status, and the original decision to refuse asylum of 11 December 2001 is accordingly maintained. I understand that your client's application for permission to apply for judicial review is listed for an oral hearing in the Administrative Court on 23 January. If, having considered the terms of this letter, your client decides to proceed with that hearing, I will of course be asking the Treasury Solicitor to ensure that a copy of this letter is placed before the Court."
"As set out in paragraphs 33-35 of our Skeleton Argument [and I add that that was a skeleton argument previously lodged on behalf of the Secretary of State], I do not accept that it is open to you in those proceedings to challenge anything other than the refusal of refugee status contained in my client's letter of 16 January 2004."
Then a little further on:
"Nonetheless, in the remainder of your letter, you suggest that my client should grant some form of discretionary leave, entirely outside the immigration rules, and in circumstances not required by the requirements of the Human Rights Act 1998, by way of 'acknowledgment for the wrong that he has [had] visited on him'. Without prejudice to the position as to the scope of these Judicial Review proceedings, my client's position in relation to such a request is clear from the Skeleton Argument filed on 18 June 2004, and in particular paragraph 59. My client recognises: (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 Maghdeed and Mr Anwar were granted refugee status; (c) that it took several months to arrive at a final decision as to whether your client ought to be granted refugee status (during part of which time there was a suspension of decision making following the start of the military intervention in Iraq); and (d) that during those months your client would not have had the same rights as he would have enjoyed had he been granted refugee status.
Nonetheless, the fact remains that given the present situation in Iraq, my client can see no basis on which your client has any present need for leave to enter/remain in this country, as a refugee or otherwise; and does not accept that he should grant such leave by way of 'compensation' for the historical position summarised above."
"56. What is still the subject of some controversy is the court's role when a member of the public, as a result of a promise or other conduct, has a legitimate expectation that he will be treated in one way and the public body wishes to treat him or her in a different way. Here the starting point has to be to ask what in the circumstances the member of the public could legitimately expect. In the words of Lord Scarman in In re Findlay  AC 318, 338, 'But what was their legitimate expectation?' Where there is a dispute as to this, the dispute has to be determined by the court, as happened in In re Findlay. This can involve a detailed examination of the precise terms of the promise or representation made, the circumstances in which the promise was made and the nature of the statutory or other discretion.
57. There are at least three possible outcomes. (a) The court may decide that the public authority is only required to bear in mind its previous policy or other representation, giving it the weight it things right, but no more, before deciding whether to change course. Here the court is confined to reviewing the decision on Wednesbury grounds (Associated Provincial Picture Houses Ltd v Wednesbury Corpn  1 KB 223). This has been held to be the effect of changes in policy in cases involving the early release of prisoners: see In re Findlay  AC 318; R v Secretary of State for the Home Department, Ex p Hargreaves  1 WLR 906. (b) On the other hand the court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken. Here it is uncontentious that the court itself will require the opportunity for consultation to be given unless there is an overriding reason to resile from it (see Attorney General of Hong Kong v Ng Yuen Shiu  2 AC 629) in which case the court will itself judge the adequacy of the reason advanced for the change of policy, taking into account what fairness requires. (c) Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.
58. The court having decided which of the categories is appropriate, the court's role in the case of the second and third categories is different from that in the first. In the case of the first, the court is restricted to reviewing the decision on conventional grounds. The test will be rationality and whether the public body has given proper weight to the implications of not fulfilling the promise. In the case of the second category the court's task is the conventional one of determining whether the decision was procedurally fair. In the case of the third, the court has when necessary to determine whether there is a sufficient overriding interest to justify a departure from what has been previously promised.
59. In many cases the difficult task will be to decide into which category the decision should be allotted. In what is still a developing field of law, attention will have to be given to what it is in the first category of case which limits the applicant's legitimate expectation (in Lord Scarman's words in In re Findlay  AC 318) to an expectation that whatever policy is in force at the time will be applied to him. As to the second and third categories, the difficulty of segregating the procedural from the substantive is illustrated by the line of cases arising out of decisions of justices not to commit a defendant to the Crown Court for sentence, or assurances given to a defendant by the court: here to resile from such a decision or assurance may involve the breach of legitimate expectation: see R v Grice  66 Cr App R 167; cf R v Reilly  QB 1208, R v Dover Magistrates' Court, Ex p Pamment  15 Cr App R(S) 778, 782. No attempt is made in those cases, rightly in our view, to draw the distinction. Nevertheless, most cases of an enforceable expectation of a substantive benefit (the third category) are likely in the nature of things to be cases where the expectation is confined to one person or a few people, giving the promise or representation the character of a contract. We recognise that the courts' role in relation to the third category is still controversial; but, as we hope to show, it is now clarified by authority."
"... true abuse of power is less likely to be found, since within it changes of policy, fuelled by broad conceptions of the public interest, may more readily be accepted as taking precedence over the interests of groups which enjoyed expectations generated by an earlier policy."
On the facts of that case the misrepresentation of the policy was corrected and the correction was not abusive, notwithstanding the bitter disappointment occasioned, in the absence of any detrimental reliance on the part of Mrs Begbie.
"I have no difficulty with the proposition that in cases where government has made known how it intends to exercise powers which affect the public at large it may be held to its word irrespective of whether the applicant had been relying specifically upon it ..."
"19. 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. This formulation of the questions is we think a more helpful way of approaching the problems in this type of case than the fivefold question adopted during argument ...
22. Two problems face a court in answering these questions. The first is to find one or more measuring rods by which it can be objectively determined whether a certain action or inaction is an abuse of power. The second is what order to make once an abuse of power has been discerned -- can the court come to a substantive decision itself or should it send the matter back to the decision taker to decide afresh according to law?"
"29. In the light of this, we respectfully adopt what Professor Craig has proposed in this regard in Craig, Administrative Law, 4th ed, at p 619:
'Detrimental reliance will normally be required in order for the claimant to show that it would be unlawful to go back on a representation. This is in accord with policy, since if the individual has suffered no hardship there is no reason based on legal certainty to hold the agency to its representation. It should not, however, be necessary to show any monetary loss, or anything equivalent thereto.'
30. But he gives the following instance of a case where reliance is not essential:
'Where an agency seeks to depart from an established policy in relation to a particular person detrimental reliance should not be required. Consistency of treatment and equality are at stake in such cases, and these values should be protected irrespective of whether there has been any reliance as such.'
31. In our judgment the significance of reliance and of consequent detriment is factual, not legal. In Begbie's case both aspects were in the event critical: there had been no true reliance on the misrepresentation of policy and therefore no detriment suffered specifically in consequence of it. In a strong case, no doubt, there will be both reliance and detriment; but it does not follow that reliance (that is, credence) without measurable detriment cannot render it unfair to thwart a legitimate expectation."
"52. It was submitted that neither applicant has changed his or her position on the strength of the expectation and therefore no weight ought to be given to the fact that the promises have not been fulfilled. We have already said that this factor does not rank as a legal inhibition on giving effect to the legitimate expectation. But what weight ought to be given to the lack of change of position?
53. The fact that someone has not changed his position after a promise has been made to him does not mean that he has not relied on the promise. An actor in a play where another actor points a gun at him may refrain from changing his position just because he has been given a promise that the gun only contains blanks.
54. A refugee such as Mr Al-Nashed might, had he been told the true situation, have gone to one of the bodies which assist refugees for advice as to where in England and Wales he might have better prospects; or have tried to find the deposit on an assured tenancy, with the possibility thereafter of housing benefit to help with the rent.
55. The present case is one of reliance without concrete detriment. We use this phrase because there is moral detriment, which should not be dismissed lightly, in the prolonged disappointment which has ensued; and potential detriment in the deflection of the possibility, for a refugee family, of seeking at the start to settle somewhere in the United Kingdom where secure housing was less hard to come by. In our view these things matter in public law, even though they might not found an estoppel or actionable misrepresentation in private law, because they go to fairness and through fairness to possible abuse of power. To disregard the legitimate expectation because no concrete detriment can be shown would be to place the weakest in society at a particular disadvantage. It would mean that those who have a choice and the means to exercise it in reliance on some official practice or promise would gain a legal toehold inaccessible to those who, lacking any means of escape, are compelled simply to place their trust in what has been represented to them."
"The principle of legitimate expectation in English law is a principle of fairness in the decision-making process. It differs from the doctrine of estoppel in private law. In the present context, it is a wholly objective concept and is not based upon any actual state of knowledge of individual immigrants or would-be immigrants; indeed, if it had to be based upon a subjective understanding of the content of these Conventions and their legal effect in English law, there would be no basis for the application of the principle in cases such as these. However, the application of the principle must be based upon some objectively identifiable legitimate expectation as to how decisions will be made and discretions exercised."
Statements to similar effect are expressed in ex parte Bibi by Schiemann LJ, and in particular in his approval of the passage from Professor Craig's book in the context of unwarranted departures from established policy. That is just because consistency of treatment and equality and considerations of good administration are at stake. Thirdly, although the claimant did not know of the policy, he was entitled to assume -- indeed, as I see it, he had the legitimate expectation -- that whatever applicable policy was in existence at the time would be applied to him. But that did not happen to him when he made his original application.
"Accordingly, I do not consider that detriment has been shown in the present case."
It is interesting to note that Mr Beatson seems to have regarded such a consideration, had it been proved -- namely, the loss of the opportunity to prove the entitlement to exceptional leave to remain in the relevant intervening period -- as capable of amounting to requisite "detriment".