ZH (Bangladesh) v Secretary of State for the Home Department [2009] EWCA Civ 8

[2009] EWCA Civ 8Case No C5/2008/1477
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
IA/21829/2007
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/01/2009
Before
LORD JUSTICE SEDLEYLORD JUSTICE KEENELADY JUSTICE SMITH
Between
ZH (BANGLADESH)AppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Z Malik (instructed by Messrs Malik Law Chambers) for AppellantMr A Payne (instructed by the Treasury Solicitors) for RespondentHearing Hearing date: Thursday 11 December 2008
JudgmentLord Justice Sedley :
[1]The appellant Zakir Hussain (there is no need for anonymity) is a national of Bangladesh, now 50 years old, who has been in this country since April 1991. He entered on a 6-month visitor’s visa and has been here, it appears, ever since. In June 2006 he applied (not for the first time) for indefinite leave to remain on the ground of long residence. The Home Secretary refused, and the refusal was upheld on appeal, first by IJ Ferguson and then, on a first-stage reconsideration, by SIJ Chalkley.[2]Paragraph 276B of the Immigration Rules provides: Requirements for indefinite leave to remain on the ground of long residence in the United Kingdom 276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:(i) (a) he has had at least 10 years continuous lawful residence in the United Kingdom; or (b) he has had at least 14 years continuous residence in the United Kingdom, excluding any period spent in the United Kingdom following service of notice of liability to removal or notice of a decision to remove by way of directions under paragraphs 8 to 10A, or 12 to 14, of Schedule 2 to the Immigration Act 1971 or section 10 of the Immigration and Asylum Act 1999 Act, or of a notice of intention to deport him from the United Kingdom; and(ii) having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his: (a) age; and (b) strength of connections in the United Kingdom; and (c) personal history, including character, conduct, associations and employment record; and (d) domestic circumstances; and (e) previous criminal record and the nature of any offence of which the person has been convicted; and (f) compassionate circumstances; and (g) any representations received on the person's behalf; and(iii) the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application.[3]The 14-year rule set out in Rule 276B(i)(b) is thus specifically directed to people who have managed to stay here for 14 years or more without lawful authority. It is in effect an amnesty clause. But among the public interest considerations in sub-rule(ii) are some which are ambiguous – the applicant’s employment record, for example. Employment in a 14-year case may very well have been unlawful: is a sustained record of unauthorised employment to count for or against the applicant?[4]IJ Ferguson summarised his findings thus:
“33. In short, weighing up the factors listed at paragraph 276B(ii) nothing is in his favour except that he has no criminal record and has been in the United Kingdom for a long period of time. That should count as some sort of compassionate circumstance but the rule only applies to people who have been in the United Kingdom for at least a decade so sub-paragraph (f) must amount to more than that and no other compassionate circumstances were raised by the appellant. I bear in mind that for all of the time the appellant has lived in the United Kingdom save for the first six months he has been very aware that he is not entitled to remain in the United Kingdom. I find that he has not discharged the burden on him to show that the decision of the respondent was not in accordance with paragraph 276B(ii) of the immigration rules. He has not demonstrated on the balance of probabilities that there are no reasons why it would be undesirable for him to be given indefinite leave to remain. ”
[5]The SIJ conducting the reconsideration found no error of law in this determination. It is therefore on IJ Ferguson’s decision that this appeal has to focus. It is attacked on three grounds: first, that the immigration judge without notice relied on paragraph (ii) grounds which had not been relied on by the Home Secretary; secondly that he misconstrued Rule 276B; and thirdly, that he failed to deal with a fallback upon discretion under Rule 395C. Dyson LJ, granting permission to appeal on sight of the papers, wrote:
“This appeal has real prospects of success. I give permission on all 3 grounds. Ground 2 raises a point of some general importance i.e. whether, in the light of Aissaoui, the factors identified by IJI at paras 27-29 of his determination are capable of justifying the conclusion that, having regard to the public interest and taking account of the factors set out at para 276B (ii) (a)-(g) of the Rules, it would be unreasonable for A to be given indefinite leave to remain on the ground of long residence. ”
The facts[6]The Home Office refusal letter, dated 6 December 2007, made no reference at all to Rule 276B. Its principal thrust was that the Home Office did not accept that Mr Hussain had been here continuously since 1991. It rejected any claim to remain under ECHR art. 8 or on compassionate grounds. It then said:
“Consideration has also been given to Paragraph 395C of the Immigration Rules. Paragraph 395C requires that consideration will be given to the following factors when deciding whether to remove an offender under Section10 of the Immigration and Asylum Act 1999: (i) age; (ii) length of residence in the United Kingdom; (iii) strength of connections with the United Kingdom; (iv) personal history, including character, conduct and employment record; (v) domestic circumstances; (vi) previous criminal record and the nature of any offence of which the person has been convicted; (vii) compassionate circumstances; (viii) any representations received on the person's behalf. You are aged 49 and claim to have lived in the United Kingdom for 16 years and 6 months, but only 6 months of this was with leave to enter. It is not considered that either your age or length of residency provide grounds for not removing you from the United Kingdom. It is not considered that either your ties to the United Kingdom or domestic circumstances are sufficiently compelling to justify you to remain in the United Kingdom. It is noted that you have no close family ties to persons present and settled in the United Kingdom or employment or business interests in the United Kingdom. It is also not considered that there are any sufficiently compelling or compassionate circumstances to justify allowing you to remain in the United Kingdom. Regard has been given to all the representations you have submitted, however for the reasons given above it is considered that your removal from the United Kingdom is appropriate.”
[7]The immigration judge’s determination included the following:
“6. In his evidence in chief the appellant adopted his statement and confirmed that he came to United Kingdom in 1991 when he was aged about 34. He gave a list of different places where he had lived: first in Barness in Windemere where he worked in the Raja Tandoori restaurant; then in Manchester where he worked in various places; Wigton in Cumbria where he worked in Oh Calcutta! for 4 months; Edinburgh where he worked for a few months at the Raj restaurant in Leith then the Bangalore restaurant. After that he said he worked in Guildford and Haslemere in Surrey then at the Farringdon Indian Tandoori, in Oxfordshire. 7. He said that he had moved around so much because he did not have a National Insurance number so when people needed him they employed him and when they were able to employ genuine people with NI numbers they would stop employing him. He said that the longest time he worked in any one place was in Mumbles in Newport, where his witness was from. From January 2007 until now he had lived at a friend's house in Birmingham. 8. Mr Hussain said that he had made many friends: most of them Bangladeshi. The bosses at the places where he worked were friends. Otherwise he said he spent his time surfing the internet on his laptop looking at Bangladeshi newspapers, or looking up the Home Office website to see information about his application. He said that he was on the electoral role and had voted once. He had applied for a NInumber. 9. In answer to questions from the Presenting Officer he said that he had arrived in the United Kingdom on the 7th April 1991. He came as a visitor and said "then there was a political problem so I delayed my journey and I liked this country so I stayed. My uncle travelled here with me but did not settle in the United Kingdom: he went on to USA. I Iived with various people then got jobs. I knew that I was illegal. Some of my friends knew that I was here illegally, so did the restaurants where I worked, and Abu Bakar my witness here today. Some of them advised me to make a claim for settlement. I used an alias in 2001 because I was told that if you use genuine details then people will catch you so I was scared. I have seen a doctor in the time I have been here. I once went to hospital. I have a doctor's card I registered about four years ago. 10.Asked about the evidence of his time spent here he said that he was paid in cash but had a bank account which he obtained by using his passport, a driving licence and the help of his previous solicitor. Before he came to the United Kingdom he lived with his parents. He was still in contact with them and they were described as “OK generally". He also had a sister in Bangladesh. He said that he was not able to send money back to his parents because he did not earn enough. He said that when I became jobless his circle of friends helped him get the next job and he was not concerned about how far away that was. He became nervous and got a fever and went to hospital for one night 1992 or 1993. He said that he did not return after his visit visa because there were political problems in Bangladesh and his family was rich and everyone knew him so he had problems. He said that he did not have a particular problem as such but was scared all the time of the opposition party. 11. Next to give evidence was Mr Abu Bakkor who also adopted his statement of 10th January 2008, with one small correction as to a date when the appellant had been his tenant which was January 1997 not 1996. He confirmed that he had been a British citizen since 1989. He said that heran a restaurant called Lal Qila in Mumbles and had owned restaurants there since 1984. He met theappellant when he came with a friend to visit his restaurant: he had employed the appellant when he was short staffed, then the appellant moved to Mumbles. 12. He said that he knew that the appellant was not entitled to work in the United Kingdom but sometimes when he was short staffed he just took whoever was available. He said that they had become friends since 1996 and even when he was not working in Mumbles they would stay in contact. 13. ln answer to questions from Mr Khalfey, Mr Bakkor said that the appellant worked in his restaurant on and off since 1996, and sometimes he worked elsewhere. The appellant had paid him £40 per week. He said that he had become aware that the appellant had no status in United Kingdom after a few years because normally if you ask someone about their status they did not like it. He said “l do know that I should employ people who are legal, but the restaurant was co-owned by a partner and we made a joint decision. It is wrong that I did not pay NI or tax for him but I wish to apologise for this now.” 14. In re-examination Mr Bakkor said that he needed to employ staff who could cook Indian and Bangladeshi food. Mr Husain was a second chef, and the longest continuous period of time he worked for him was more than one year. ”
[8]The immigration judge then recorded that the presenting officer had relied on the letter of refusal “and said that there was still not sufficient evidence” of 14 years’ residence. This, however, the immigration judge found proved. He pointed out, however, that more was required than this if ILR was to be granted. He then said:
“24. The decision of the Secretary of State does not explicitly refer to sub paragraph 276(ii). The decision does however consider all the same information as is contained in that sub-paragraph under the auspices of paragraph 395C of the Immigration Rules.

(i) ”

Ground 1: introducing Rule 276B Ground 3: failure to deal with Rule 395C[9]It is convenient to pause here and deal with the first and third grounds of appeal. Was it unfair of the immigration judge to proceed on this footing to deal with the case under Rule 276B? And was the appeal under Rule 395C (which is sufficiently set out in the decision letter, ante) substantively as well as formally overlooked by the senior immigration judge on the first-stage consideration?[10]What happened was that the immigration judge noted the overlap, length of residence apart, between the two provisions and proceeded to deal with what he perceived to be the merits of both. These engaged issues which the refusal letter, which was relied on at the appeal hearing, had expressly put on the agenda in relation to Rule 395C, and in dealing with the one the immigration judge was in substance dealing with the other. The reason for the disparity between his determination and the Home Office refusal letter was that the Home Office, having refused to accept that there had been 14 years’ continuous residence, saw no reason to consider Rule 276B, while the immigration judge, having found that there had been 14 years’ continuous residence, had to focus on it.[11]In the circumstances of this case, any decision under Rule 395C could not realistically have diverged from the decision under Rule 276B. More importantly, however, the fact that the latter rule places the burden on the applicant means in general that the applicant needs to come armed with the necessary evidence, testimonials and the like, except perhaps as to issues he knows will not be in dispute. There is force, I acknowledge, in Mr Malik’s submission that, even so, it was not fair for the immigration judge to draw adverse inferences from the evidence without letting the appellant know what he had in mind. In another case, I accept, this alone might require remission; so might a failure to deal with a point on which reconsideration had been ordered; but in this case remission is in any event required for substantive reasons to which I now turn. Ground 2: the application of the long residence rule[12]This brings me to the important and difficult issue in this appeal. The immigration judge, though he had not been referred to it in argument, cited and purported to follow the case of MO (Ghana) [2007] UKAIT 00014. By the time the appeal was reconsidered by SIJ Chalkley, this court in Aissaoui [2008] EWCA Civ 37 had made it clear that, at lowest, MO (Ghana) was not to be uncritically followed. I shall say more about MO below, but partly on the basis of it IJ Ferguson went on to hold:
“27. Mr Hussain's situation is slightly different to that of the appellant in MO in that Mr Hussain did not use his deception to deceive his employers, who all appeared to know that they were employing him illegally. It is a similar situation in the sense that Mr Hussain has accepted that he used a false identity to avoid being detected by the authorities, and has gone to extraordinary lengths to avoid detection by moving many times, sometime hundreds of miles, and using a network of people prepared to help him avoid detection by housing and employing him despite being aware of his status. 28. The Secretary of State considers that the appellant should be prevented from benefitting from ILR by the facts of his circumstances. While it is true that the decision letter does not consider it explicitly with regard to paragraph 276B(ii) MO makes clear at paragraph 5 of that decision that all aspects of paragraph 276B have to be met, and particularly so where the, as in this case, the contents of the refusal letter do raise "public interest reasons for deciding to refuse the appellant's application." 29. In his statement of evidence, Mr Hussain minimises the circumstances under which he has been living in the United Kingdom since he arrived as a visitor. He says, for example at paragraph 11 that “I respect this country and am a law-abiding citizen. I have never been involved in any immoral or illicit activity and have always cherished the laws and freedoms that this country has preserved...”
Elsewhere he describes himself as being of “good character". Even for an application under a rule which acknowledges that a person may be in the United Kingdom illegally, it is not accurate to describe his situation as one where he has never been involved in illicit activity. His evidence was that for the past 17 years he has been involved in regular, routine illegal work, evading the authorities by travelling around the country, using a false identity where necessary and colluding with others to maintain his deceit. That is not a description of a "law-abiding citizen". I therefore find that his personal history including character, conduct and employment history make it undesirable for him to be given indefinite leave to remain. 30. His personal connections to the United Kingdom are also notstrong. He has never married and is not in any relationship. He has no children and has no family members living in the United Kingdom. In Bangladesh on the other hand he has his parents and a sister. His evidence was that he used to live with his parents before coming to the United Kingdom and that he is from a well respected family. He is still in regular contact with his parents. There is nothing to prevent him returning to resume his family life in Bangladesh. 31. His domestic circumstances in the United Kingdom show that he has not been able to settle in one place for very long and is used to moving around to different places. I accept that he has no criminal record and that counts in his favour. His age is a neutral factor: he came to the United Kingdom as a mature adult and has spent most of his life outside of the United Kingdom.” There followed his conclusion, quoted earlier in this judgment.[13]What is said against this reasoning is that it renders the Rule 276B(ii) amnesty pointless by demanding of an illegal immigrant a degree of civic virtue incompatible not only with the 14 years’ unlawful residence which enable him to quality under the rule in the first place but with the Immigration Directorate Instruction (IDI) by which Home Office officials are intended to exercise their judgment. In support of it, it is said that the evaluation of the listed factors, which are not exhaustive, is a matter for the fact-finder, and that the conclusions to which the immigration judge came were entirely open to him in law.[14]The first thing that has to be said of the immigration judge’s evaluation of the facts is that he has made a damaging finding – that Mr Hussain had gone “to extraordinary lengths to avoid detection by moving many times, sometimes hundreds of miles” - which is quite contrary to the evidence. The appellant’s evidence, which was not challenged in this regard, was that he had moved from job to job “because he did not have a national insurance number, so when people needed him they employed him, and when they were able to employ genuine people with NI numbers they would stop employing him.” In fact he had called an engagingly candid witness, Mr Bakkor, a restaurateur, who confirmed that this was exactly how he had come first to employ and then to dismiss Mr Hussain:
“He said he knew the appellant was not entitled to work in the United Kingdom, but sometimes when he was short staffed he just took whoever was available.”
[15]Even if this was the only error, I would be disposed to allow this appeal because it is capable of having turned what was on any view a marginal decision against the appellant. But I think there is more.[16]The use of a false identity, which was admitted by the appellant, was held against him. But no account was taken, as it seems to me it needed to be taken, of the reason he gave for using it: that he was afraid of being detected as an illegal immigrant. That of course compounds the illegality of his presence here, but it is a different reason from the more sinister reason for using a false identity, which is to commit frauds. While he will not have been paying tax or national insurance contributions, some recognition was also due to his evidence that he had been trying to obtain a NI number. Moreover, the evidence – which came entirely from Mr Hussain himself – did not support the immigration judge’s finding of sustained deceit: the appellant had given evidence of a single date, 2001, when he had used an alias.[17]For these reasons I consider that the comprehensive denunciation of the appellant set out at the end of §29 of the immigration judge’s determination is not balanced and not justified. He has lost sight of the fact that this was neither a case of pure discretion, whether under Rule 395C or outside the Rules, nor a deportation case, but a case in which the appellant, by dint of 14 years’ unlawful residence during which he had maintained himself by working unlawfully, had reached a point at which the Home Secretary’s own rules, approved by Parliament, gave him a right to remain so long as it was not undesirable in the public interest that he should be allowed to do so.[18]The opening words of Rule 276B, which postulate that the requirements of the rule are to be met by the applicant, place a formal onus on him under paragraph (ii) to show that there are no reasons which render a grant of ILR undesirable; but once the evidence has been heard on both sides, the practical question for the immigration judge is whether there are any reasons in the public interest why the appellant, despite his prolonged evasion of immigration controls, should not now be allowed to stay. To use the evasion itself as a reason is to defeat the purpose of the rule.

MO (Ghana) and Aissaoui

[19]I turn in this light to the two cases mentioned above. MO (Ghana) [2007] UKAIT 00014 was a decision of three-member panel chaired by SIJ Storey, who wrote their determination. The appellant had been unlawfully resident here for 14 years, using an assumed name, as he admitted to the Home Office when he applied for ILR. It was argued for him, as it has been for Mr Hussain, that “the very purpose of paragraph 276B(i)(b) taken together with paragraph 276B(ii) is to regularise applicants whose stay in the UK has been unlawful. Notwithstanding a citation in support of this proposition from the judgment of Sullivan J in Popatia and Chew (CO 4984 98) – “the 14-year concession is by definition applicable to those who have been guilty of some breach of immigration controls” – the AIT correctly held that it did not follow that every overstayer who managed to remain here for 14 years would qualify. They said:
“From the list of factors …. It is clear that the intention behind the rule is to ensure that whether a person with a history of illegal or unlawful stay can nevertheless succeed will depend on a wide range of circumstances, including the nature and extent of his unlawful stay.”
[20]I find the last part of this formulation, with respect, puzzling. In every such case the relevant nature of the appellant’s stay is that it was unlawful, and its extent is by definition 14 years or more. Since these are treated by the rule as neutral gateway factors, they cannot be double-counted by then placing them in the public interest debit column. The public interest in an unlawful stay which has lasted 14 years or more is treated by the rule as met by a grant of indefinite leave to remain provided there are no countervailing factors which tilt the public interest balance the other way.[21]It is to be observed that the Rule 276B(ii)(b) test is geared to public, not private, interests. As the AIT in MO recognised, this marginalises what might otherwise be relevant art.8 arguments, although these may arise in relation to removal once a 14-year claim fails.[22]There follows in §13 of MO what has come to be treated by the Home Office and some immigration judges as (in Lord Justice Keene’s phrase) a template for other cases: “[Counsel] herself accepted that the appellant’s use of a false identity was a serious matter, and indeed accepted that it could viewed as within the category of a particularly serious crime.[23]The citation of this passage in the judgment of this court in Aissaoui [2008] EWCA Civ 37 prompted the barrister concerned to write to the court insisting that she had not made any such concession. She was naturally embarrassed that the assertion that she had done so was being recycled. For my part I readily accept that it would have been a most surprising concession to make, not least because it plainly overstated what could fairly be said against the appellant. There may have been a misunderstanding which led the AIT to think that such a concession had been made; but whether there had been or not, the AIT’s evaluation of MO’s conduct has no materiality to the exercise which has to be independently carried out in other cases, the present one included. The use of a false identity may be a relevant factor in gauging where the public interest lies, but nothing in the rule accords it any given weight, much less makes it decisive. MO should not in future be cited on Rule 276B(i)(b) appeals even as persuasive authority.[24]In Aissaoui the appellant had entered as a student and has overstayed, using an alias to find work, but paying tax on his wages and using his true name in other respects. Hooper LJ, giving the leading judgment, expressly disapproved the view espoused by the AIT in MO that the undoubted offence of working without permission was a most serious offence. He went on to say, with the agreement of the other members of the court, that MO should be treated with caution because the supposed concession on which it proceeded would mean that the rule operated against some of the very people it was intended to benefit. The court remitted the appeal for rehearing because a finding in Mr Aissaoui’s favour was, by concession, open to the AIT on the facts.[25]Hooper LJ in particular noted, at §31, that the Immigration Directorate’s own instructions, which had been published in 2007 and so were not applicable to Mr Aissaoui’s appeal (but would appear to be applicable to Mr Hussain’s), said that it would not normally be in the public interest to grant indefinite leave to remain to a person unless he has been economically self-sufficient for a significant period of the time he has spent here. Thus the Home Office recognised that applicants under the 14-year rule, if they were to be successful, must be expected to have worked unlawfully for much of their time here. The status of the IDI[26]This brings me, finally, to an issue of general importance which has come into focus in the course of the argument before us: what is the legal or evidential status, on appeal, of the directions issued by the Home Office’s Immigration Directorate to its officials about the implementation of the rule or rules in play before the AIT?[27]The issue arises concretely in the present case because the IDI dated May 2007, which postdated the determination in Aissaou, was in operation by the time Mr Hussain’s appeal came up for hearing. It is captioned “Guidance to caseworkers on applying paragraphs 276A-276D of the Immigration Rules”. It is addressed, for action, to caseworkers and other named staff, and for information to, among others, presenting officers.[28]§1.1 helpfully sets out the background: 1.1 Background Until April 2003 there was no provision in the Immigration Rules for a person to be granted indefinite leave to remain on the grounds of long residence. The long residence concession allowed for a discretionary grant of settlement after 10 years continuous lawful residence or 14years continuous residence of any legality, provided there were no serious countervailing factors. Under the provisions of the Nationality, Immigration and Asylum Act (NlA) 2002, which came into effect in April 2003, there is no right of appeal against refusal for those seeking leave to enter or remain under concessionary arrangements. As a consequence the long residence concession was brought within the scope of the Immigration Rules from 1 April 2003.[29]To this it can perhaps be added that, until 2002, the former bar on asylum-seekers finding work was relaxed as a matter of policy because of adverse public comment on the waste of skills it brought about. It was reimposed because the chance of working and earning good money while a weak asylum claim was processed and rejected was being exploited by nationals of certain states in considerable numbers. It follows that there will be some overstayers who, for a time at least, were able to work lawfully. But they represent a minor element of those eligible under rule 276B, and it is not suggested that it is for their sole benefit that the “employment record” criterion is included in the rule.[30]§2.3 of the IDI says inter alia: 2.3. DECIDING WHETHER TO GRANT LEAVE It is important to remember that possession of the required period of continuous residence in the UK does not entitle the applicant to a grant of leave, but only to be considered for a grant. Whether leave is granted or not is a matter of judgement. That said, the general rule is that a person who satisfies the appropriate continuous residence requirement should normally be granted ILR, unless a grant would, in all the circumstances of the case, be against the public interest. ……. Paragraph 276B(ii) of HC395 sets out a number of points which should be considered in all cases. This guidance provides further advice on some of those points. Personal history, including character, conduct, associations and employment record "Character, conduct and associations" goes beyond criminal convictions and enables the caseworker to consider whether anything we know about the appellant's activities in the UK or abroad makes it undesirable for us to grant ILR. This could include concern about the applicant on the basis of national security, war crimes, crimes against humanity, serious criminality (whether convicted or not) or other activities that make the applicants presence in the UK not conducive to the public good. A history of anti-social behaviour or low level criminality, especially if it has led to the issue of an ASBO, or the applicant's having signed the sex offenders register might be grounds to refuse ILR. The applicant's employment record will often be a significant consideration. The main purpose of the two Long Residence rules is to enable people who have been working here, or otherwise contributing to the economy, to regularise their position. Therefore, caseworkers need to consider what the person has been doing while here, and what economic contribution, if any, he has made. It will not normally be in the public interest to grant ILR under these Rules to someone unless he has been economically self-sufficient for a significant period of the time he has spent here. ……. Personal history, including character, conduct, associations and employment record …….

Personal history, including character, conduct, associations and employment record

[31]We invited additional written submissions when we reserved judgment because Mr Payne, perfectly reasonably, wanted time to take full instructions. His submission, having done so, is twofold. First, through him the Home Secretary accepts that neither case-workers nor presenting officers should depart from IDI guidance without good reason. Secondly, and given that IDI are publicly available, there should be no requirement or expectation that in every appeal the material IDI, if there is one, will be produced to the AIT. This is both for legal and logistical reasons; but since no such proposal is being mooted, it is not necessary to go into them. The question is what should happen when a discrepancy between an IDI and the case being presented by the Home Office is drawn (usually but not necessarily by the appellant) to the AIT’s attention.[32]Two things seem reasonably clear. One is that the IDI does not have, and cannot be treated as if it possessed, the force of law. The other is that, at least in a case such the present one, the IDI must have a legitimate bearing in the sense that it would be wrong for the immigration judge to adjudicate in ignorance of it. Between these poles one can locate two further propositions. First, albeit its author is in law the author of the immigration rules, the IDI is not an aid to the construction of those rules. Secondly, and assuming always that it sits, as it must, within the four corners of the rule to which it relates, the IDI’s significance cannot depend on whether it steers caseworkers towards a restrictive or a generous application of the rule. If Mr Hussain can use the present IDI because it helps him, the presenting officer in another case can use another IDI for the opposite reason; and in both such cases the IDI becomes a surrogate for the rule, which is not permissible.[33]It follows that the proper course is not to introduce the material IDI every time the meaning or application of an immigration rule is in issue. But the presenting officer should be ready to explain to the AIT any divergence between the case now being presented and any material IDI to which the AIT’s attention is drawn. This approach, without placing an undue burden on the Home Office, reflects the legal obligation of government not to act inconsistently with its own policy unless there is some good reason for doing so: see British Oxygen v Board of Trade [1971] AC 610. More than this would be to give internal guidance the force of law; less would be to tolerate double standards in public administration. Conclusion[34]I would therefore hold that the initial determination, contrary to the AIT’s finding, was vitiated by errors of law. I would allow Mr Hussain’s appeal and remit the case to the AIT, differently constituted, for reconsideration on its merits.

Lord Justice Keene:

[35]I agree.

Lady Justice Smith:

[36]I also agree.

Cited in 19 later judgments

and 10 more of the most senior