Abdi v Secretary of State for the Home Department [2005] EWCA Civ 1363

“1 The Claimant is a Tamil from Sri Lanka who claims asylum in this country. He was married in 1991; his wife is also a Tamil. In 1995 he went to Germany and claimed asylum there. His claim for asylum was rejected. What then happened is disputed. The Claimant says that he voluntarily returned to Sri Lanka, where he was imprisoned and tortured; that his wife procured his release, following which he fled to this country. The Secretary of State believes that the Claimant never left Germany, but simply went to ground there. He illegally and clandestinely entered the United Kingdom on 21 August 1998. After his arrest as an illegal entrant he claimed asylum. At that time, his asylum claim in Germany was still subject to an appeal to the German courts. When he arrived in the United Kingdom, he concealed the fact that he had previously applied for asylum in Germany or anywhere else; that he had done so was discovered when fingerprints were taken. The Home Secretary sought to remove him to Germany as a safe third country. Judicial review proceedings were begun on his behalf, but were held in abeyance pending the appeals in Adan and Aitsegeur [2001] 2 AC 477 and Yogathas [2002] UKHL 41 [2002] 4 All ER 785. 2 In August 2001, the Claimant’s wife entered this country and claimed asylum. In November 2001, the Home Secretary certified the Claimant’s asylum claim under section 11 of the Immigration and Asylum Act 1999. In January 2002, the Claimant’s solicitors withdrew the first judicial review claim on account of judicial decisions on third country certification (in the case of Yogathas that of the Court of Appeal).”

“The Secretary of State is entitled by reason of section 11 of the 1999 Act to regard Germany as a place where a person’s life and liberty is not threatened by reason of a Geneva Convention [sc. the Refugee Convention] matter, and as a place from which a person will not be sent to another country otherwise than in accordance with the Geneva Convention. The attached certificate certifies that Germany has accepted that under standing arrangements it is the responsible State in relation to your claim for asylum…”

“11 The Secretary of State is satisfied that your client’s case falls outside of his above stated policy. Your client’s wife is not present in this country as an asylum seeker; indeed, her asylum application has been refused outright and she is appealing against that decision. Neither your client nor his wife has been granted refugee status in the UK nor has either of them been granted leave to enter or remain in the UK within the meaning of such terms under the Immigration Act 1971. Furthermore, your client had been aware since his arrest as a clandestine illegal entrant [o]n 22 August 1998 that his immigration position in this country was, at best, extremely precarious, depending as it does on the outcome of his judicial review application. 12 The Secretary of State is confident that his above stated policy is compliant with the UK’s obligations under Article 8 of the ECHR. The Secretary of State has considered all the evidence and representations made on behalf of your client. The question for the Secretary of State is whether the undoubted interference with your client’s right to respect for his family life, if he were to be returned to Germany, would be proportionate and commensurate when balanced against his legitimate concerns in the public interest to maintain a credible and effective immigration control to the United Kingdom, and to deter abuse of the asylum system. 13 The Secretary of State notes that your client arrived in the United Kingdom travelling alone on 22 August 1998 having prior to this lived in Germany since 1995. The Secretary of State does not know when your client’s wife arrived here but he is satisfied that your client and his wife had been separated due to their own actions for some considerable period of time before either of them arrived in the United Kingdom. The Secretary of State is satisfied in this particular case that the need to maintain the effectiveness of the control of entry to this country for settlement outweighs the interference with your client’s Article 8 rights. 14 In all the circumstances and having given the most careful consideration to all the matters raised on behalf of your client, the Secretary of State concludes that the allegation that your client’s return to Germany would breach his human rights is manifestly unfounded. He accordingly certifies to that effect pursuant to Section 72(2)(a) of the Immigration and Asylum Act 1999.”

“your removal from the United Kingdom is imminent”

“In all cases ‘in the United Kingdom’ is to be taken as meaning with leave to enter or remain or on temporary admission to this country as an asylum seeker prior to an initial decision on their application.”

“16 When she was interviewed more fully on 6 January 2002 she said that she had been in Somalia in 1998 and had subsequently spent one and a half years in Nairobi and had then been in Italy for two weeks before coming to the United Kingdom. She said that she had never worked and that she had never held a passport, although she agreed that her photograph was on the copy passport shown to her. She said she had never held an identification card and she denied ever having applied for a visa. When shown a copy of a visa application made by her, she agreed that it contained a photograph of her and thought that somebody must have signed it for her. Similarly, she denied that the Italian residence document in her name was hers although she agreed that it had a photograph of her on it. She said that she had used documents provided by a lady called Halima who pretended that she was her daughter. She denied that her uncle had brought her to the United Kingdom or that she had travelled with him. She said she happened to meet him at the airport and he offered to carry her bag. She had not come through immigration control with him because she was not feeling very well and had gone to the toilet without telling him that she was unwell. 17 After an interval, her solicitors asked for her to be further questioned. On this occasion she said that the residence permit was hers. She had lied because she had been attacked on three occasions by some Italian youths who had tried to rape her and she had reported it to the police. She then claimed to have arrived in Italy in the year 2000. When it was pointed out that her residence permit was granted in 1999, she said she was still in Somalia at that time. She insisted that her real name was Sadia Abdulkadir Abdi and that her sister was one year older than her, although she had said in the previous interview that she was the oldest daughter. 18 The claimant’s account changed yet again when she made a witness statement in these proceedings on 21 November 2002. She said that Halima obtained her Somali passport and her Italian residence documentation for her, and she had also taken her on three occasions to the British Embassy to help her fill in her visa applications. She agreed that the story she gave to the entry clearance officer was untrue. She did not even know that her mother was in the United Kingdom at that time and she did not know why Halima was trying to send her to the United Kingdom. She said that Halima had made her work for an Italian lady for about three years, keeping most of her wages, and had forced her into prostitution. Finally, she said that she had not told the truth in her interview on 6 November 2002 because she had been told what to say by her family. 19 In fact, a note by the entry clearance officer showed that, when she applied for her visa in October 2000, she had come in person. She had also said that she wished to go to the United Kingdom to her aunt’s wedding. In her very recent statement dated 18 November 2003, the claimant said that she did not know that her mother was in the United Kingdom when she made the three visa applications. It had been Halima’s decision that she should make the applications although she didn’t know why. She said that Halima controlled her life and forced her into prostitution. 20 The photographs which were found in her uncle’s luggage were included amongst the documents produced by the defendant in these proceedings. According to the defendant, they showed her to be a happy carefree young lady with friends in Italy over a period of time. The claimant said in a subsequent statement that Halima had made her look happy so that she could show them to the men using her as a prostitute. Having seen the photographs, I am inclined to agree with the defendant. Indeed, the account of her being forced into prostitution was not mentioned by her at all during her interview on 6 January 2002.”

“You allege that your client’s removal to Italy would constitute a breach of her human rights under Article 8 of the ECHR, as her mother is presently resident in the United Kingdom. The question for the Secretary of State is whether the undoubted interference with your client’s right to respect for her family life, if she were returned to Italy, would be proportionate and commensurate when balanced against his legitimate concerns in the public interest to maintain a credible and effective immigration control to the United Kingdom, and to deter abuse of the asylum system. The Secretary of State takes the view that it will be open to your client to apply at a British Consulate or Embassy in Italy for the appropriate entry clearance to enable her to return lawfully to the United Kingdom to resume her family life.”

“14 The Immigration Service at Birmingham made enquiries of the Italian authorities… The Questura di Pescara (the Divisional Police Headquarters at Pescara) confirmed from their records that your client, who is known to them as Sadia Mohamed Hassan, was born in Mogadishu on 13 February 1980. She had been issued with a residence permit, No: E404957, on 9 May 1998 by the Police Headquarters in Rome…, which gave her date of entry into Italy as 9 February 1998 at Fiumicino airport, and that on 5 May 2001 the validity of this permit had been extended to 9 May 2005 by the Police Headquarters at Pescara… They also confirmed that your client had permission to work as a domestic… 15 Enquiries were also made with the Entry Clearance Officer at the British Embassy in Rome. These enquiries confirmed that in 2000/01 your client had made 3 applications for ‘visit’ visas to enable her to travel to the UK but that each application had been withdrawn before a decision had been taken… The photographs on the Visa Application Forms confirm that it was your client who made the applications on 9 August 2000…, 10 October 2000 (… undated but made in person on that date), and… 22 February 200[1]. 16 The ECO in Rome took copies of the various documents your client brought in to support her visa applications, including: (a) her Somali passport, number AO387209, issued to her in Rome on 4 March 1998 and valid to 3 March 2001 giving her date of birth as 13 February 1980…; (b) your client’s Employment Record (Libretto di Lavoro) which had been issued to her in Pescara on 9 August 1998 and showed that she had been working at Via Berardinucci 58, 65100 Pescara since 21 October 1998…; (c) a further document, ‘Denuncia di Rapporto di Lavoro Domestico’ confirmed that her employer in Pescara was a retired lady, Mrs Grazia Priore, who lived at that address and had been signed by both your client and her employer; (d) your client’s ‘Titre de Voyage’ number 09662, issued in Pescara on 2 July 2001 and valid for 12 months, also giving her date of birth as 13 February 1980…” (a) her Somali passport, number AO387209, issued to her in Rome on 4 March 1998 and valid to 3 March 2001 giving her date of birth as 13 February 1980…; (b) your client’s Employment Record (Libretto di Lavoro) which had been issued to her in Pescara on 9 August 1998 and showed that she had been working at Via Berardinucci 58, 65100 Pescara since 21 October 1998…; (c) a further document, ‘Denuncia di Rapporto di Lavoro Domestico’ confirmed that her employer in Pescara was a retired lady, Mrs Grazia Priore, who lived at that address and had been signed by both your client and her employer; (d) your client’s ‘Titre de Voyage’ number 09662, issued in Pescara on 2 July 2001 and valid for 12 months, also giving her date of birth as 13 February 1980…”

“In other words, the issue is whether [the Secretary of State] was entitled rationally to conclude that no adjudicator could find that there was a breach of Article 8”

“30 Whilst an adjudicator would, in my view, be bound to disbelieve the claimant’s latest account of being forced into prostitution in Italy as being incredible, I do not consider that the Secretary of State could reasonably conclude that an adjudicator would be bound to disbelieve her account of her age and identity. There is a factual dispute on that issue such that it cannot be said at this stage that the claimant was bound to fail because an adjudicator was bound to disbelieve her on that issue. 31 I turn then to the second reason given by the defendant for concluding that the claim was manifestly unfounded, namely that, even if an adjudicator did believe her account as to her age and identity, he would still have been bound to conclude that there was no breach of Article 8 in returning the claimant to Italy. Put shortly, the defendant accepts that there would be an interference with the claimant’s family life under Article 8(1) if she were returned to Italy, but it is submitted that it is plainly necessary and proportionate to return her in the interests of maintaining a firm and effective system of immigration control, and that any adjudicator would be bound to conclude that the interference with her family life was justified under Article 8(2). The defendant’s position is that the claimant should have made an honest application for entrance clearance before leaving Italy.”

“38 Ms Naik placed considerable reliance on the alleged failure of the defendant to consider the safe third country family links policy, and on the suggestion that the claimant was bound to be accepted as a refugee. However, as Mr Underwood QC pointed out on behalf of the defendant, the safe third country family links policy deals with whether an asylum claim should be considered substantively in this country, but in this case the claimant’s asylum claim has already been certified by the defendant on a safe third country basis under section 11 of the 1999 Act. It will therefore be dealt with in Italy, not in this country, there having been no judicial review challenge to the section 11 certification. The certification which is challenged in these proceedings is the certification of the human rights claim under section 72 of the Act. The only other avenue open to the claimant would have been an application for leave to enter under paragraph 352D of HC 395 as a child of a refugee. However, even though the claimant would probably have been able to satisfy all the other conditions of paragraph 352D, she would not have been able to satisfy condition (vi) which requires her to have obtained entry clearance.”

“45 In considering this matter, I attach importance to the undoubted deception that was practised by the claimant to gain entry to this country when what she should have done was to apply for entry clearance. The fact that she would not have had identification documentation for what she says is her correct identification is of her own making. She has told a pack of lies to circumvent immigration control and she has therefore engineered the very basis of her claim, the right to respect for family life, by so gaining entry to this country. It would, in my view, be sending out the wrong message if the court were not to uphold the certificate under section 72 unless it could be shown that there were exceptional circumstances to justify a contrary conclusion. I do not consider that there are such exceptional circumstances in this case, even assuming that the claimant is who she says she is. 46. This is not an Article 2 or Article 3 case involving the right to life or torture or inhuman and degrading treatment. It is an Article 8 case involving the right to respect for family life. As Dyson LJ stated in Samaroo v Secretary of State for the Home Department [2001] EWCA Civ 1139 at paragraph 36, the right to respect for family life is not regarded as a right which requires a high degree of constitutional protection. The claimant has only lived with her mother for two years since coming to this country in December 2001, having previously not lived with her since 1997, albeit that that was due to family dispersal arising from civil war in Somalia. She lived in Italy for 3½ years, coming to this country, on her account, when she was 17. She is now, on her account, 19 and no longer a minor dependant child. She would not have family living with her in Italy but she could be visited and supported by her mother and uncle. 47. When balancing such interference with the claimant’s family life against the need for a firm and effective immigration policy and the need not to send out the wrong message by, in effect, rewarding the deception practised by the claimant by allowing her to benefit from it, and bearing in mind the considerable deference to be afforded to the defendant on that aspect of the matter, I consider that the defendant was entitled to conclude, even accepting the claimant’s account of her age and identity to be correct, that no adjudicator would hold that there had been a breach of Article 8. In my view, the defendant’s decision was both within the range of reasonable responses and it was proportionate. Taking into account the matters I have mentioned, he was entitled to conclude that an appeal to an adjudicator on the human rights claim was bound to fail.

“I have no doubt that the Home Office letter afforded the applicant a reasonable expectation that the procedures it set out, which were just as certain in their terms as the question and answer in Mr Ng’s case, would be followed… The Secretary of State is, of course, at liberty to change the policy but in my view, vis-à-vis the recipient of such a letter, a new policy can only be implemented after such recipient has been given a full and serious consideration whether there is some overriding public interest which justifies a departure from the procedures stated in the letter.”

“Mr Beloff characterised Sedley J’s approach as heresy, and in my judgment he was right to do so. On matters of substance (as contrasted with procedure) Wednesbury provides the correct test.”

“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 thinks right, but no more, before deciding whether to change course. Here the court is confined to reviewing the decision on Wednesbury grounds… This has been held to be the effect of changes in policy in cases involving the early release of prisoners… (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… Ng Yuen Shiu…) 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.”

“[M]ost 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.”

“71 … [T]he doctrine of legitimate expectation has emerged as a distinct application of the concept of abuse of power in relation to substantive as well as procedural benefits… If this is the position in the case of the third category, why is it not also the position in relation to the first category? May it be… that, when a promise is made to a category of individuals who have the same interest, it is more likely to be considered to have binding effect than a promise which is made generally or to a diverse class, when the interests of those to whom the promise is made may differ or, indeed, may be in conflict? 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. Its application is still being developed on a case by case basis. Even where it reflects procedural expectations, for example concerning consultation, it may be affected by an overriding public interest. It may operate as an aspect of good administration, qualifying the intrinsic rationality of policy choices. 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.”

“81 For our part, in relation to this category of legitimate expectation, we do not consider it necessary to explain the modern doctrine in Wednesbury terms, helpful though this is in terms of received jurisprudence (cf Dunn LJ in… Mahmood Khan…). We would prefer to regard the Wednesbury categories themselves as the major instances (not necessarily the sole ones…) of how public power may be misused. Once it is recognised that conduct which is an abuse of power is contrary to law its existence must be for the court to determine. 82 The fact that the court will only give effect to a legitimate expectation within the statutory context in which it has arisen should avoid jeopardising the important principle that the executive’s policy-making powers should not be trammelled by the courts: see Hughes v Department of Health and Social Security [1985] AC 766, 788, per Lord Diplock…”

“It is very much the exception, rather than the rule, that detrimental reliance will not be present when the court finds unfairness in the defeating of a legitimate expectation.”

“Abuse of power has become, or is fast becoming, the root concept which governs and conditions our general principles of public law… It informs all three categories of legitimate expectation cases as they have been expounded by this court in… Coughlan… The difficulty, and at once therefore the challenge, in translating this root concept or first principle into hard clear law is to be found in this question, to which the court addressed itself in the Coughlan case: where a breach of a legitimate expectation is established, how may the breach be justified to this court? In the first of the three categories given in… Coughlan, the test is limited to the Wednesbury principle. But in the third (where there is a legitimate expectation of a substantive benefit) the court must decide ‘whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power’ [Coughlan paragraph 57]. However the first category may also involve deprivation of a substantive benefit. What marks the true difference between the two?... As it seems to me the first and third categories explained in the Coughlan case… are not hermetically sealed. The facts of the case, viewed always in their statutory context, will steer the court to a more or less intrusive quality of review. In some cases a change of tack by a public authority, though unfair from the applicant’s stance, may involve questions of general policy affecting the public at large or a significant section of it…; here the judges may well be in no position to adjudicate save at most on a bare Wednesbury basis… In other cases the act or omission complained of may take place on a much smaller stage, with far fewer players. Here, with respect, lies the importance of the fact in… Coughlan… that few individuals were affected by the promise in question. The case’s facts may be discrete and limited, having no implications for an innominate class of persons. There may be no wide-ranging issues of general policy, or none with multi-layered effects, upon whose merits the court is asked to embark. The court may be able to envisage clearly and with sufficient certainty what the full consequences will be of any order it makes. In such a case the court’s condemnation of what is done as an abuse of power, justifiable (or rather, failing to be relieved of its character as abusive) only if an overriding public interest is shown of which the court is the judge, offers no offence to the claims of democratic power. There will of course be a multitude of cases falling within these extremes, or sharing the characteristics of one or other. The more the decision challenged lies in what nay inelegantly be called the macro-political field, the less intrusive will be the court’s supervision. More than this: in that field, 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.”

“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. The legitimate expectation in such a case is that government will behave towards its citizens as it says it will. But where the basis of the claim is, as it is here, that a pupil-specific discretion should be exercised in certain pupils’ favour, I find it difficult to see how a person who has not clearly understood and accepted a representation of the decision-maker to that effect can be said to have such an expectation at all. A hope no doubt, but not an expectation.”

“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. … 29 [After citing part of Peter Gibson LJ’s judgment in Begbie including the passage on reliance which I have set out] 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 [Mr Husain told us that this passage is replicated in the 5th edition, page 652 sub-paragraph 6]: ‘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.” ‘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.’ ‘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.”

“39 But, on any view, if an authority, without even considering the fact that it is in breach of a promise which has given rise to a legitimate expectation that it will be honoured, makes a decision to adopt a course of action at variance with that promise then the authority is abusing its powers. … 49 Whereas in … Ex p. Coughlan… it was common ground that the authority had given consideration to the promises it had made, in the present cases that is not so. The authority in its decision making process has simply not acknowledged that the promises were a relevant consideration in coming to a conclusion as to whether they should be honoured and if not what, if anything, should be done to assuage the disappointed expectations. In our judgment that is an error of law. … 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.”

“Where an agency seeks to depart from an established policy in relation to a particular person detrimental reliance should not be required.”

“It is in the interest of good administration that [a public authority] should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty.”