AO (Iraq) v Secretary of State for the Home Department [2010] EWCA Civ 1637

Case No C4/2010/1111[2010] EWCA Civ 1637
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE BURNETT)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 30 th November 2010
Before
LORD JUSTICE JACOBLORD JUSTICE ELIASMR JUSTICE NORRIS
Between
AO (Iraq)AppellantsSECRETARY OF STATE FOR THERespondentHOME DEPARTMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Mark Symes (instructed by Messrs Pierce Glynn) appeared for Appellant.Mr Sarabjit Singh (instructed by the Treasury Solicitors) appeared for Respondent.
Judgment
[1]In this appeal the appellant challenges a refusal by Burnett J to give him permission to apply for judicial review out of time with respect to his contention that he was unlawfully detained by the Secretary of State when he was administratively detained pending deportation. He seeks damages for his unlawful detention.[2]The background in summary form is this. On 23 December 2004 he was convicted of using threatening behaviour and sentenced to a community punishment. On 13 June 2006 he pleaded guilty to certain offences of battery, burglary and carrying a bladed article, committed over a period of several months. He was sentenced to 12 months’ imprisonment at the Crown Court, to where he had been committed on 8 August 2006. He had originally come into the United Kingdom concealed in a lorry on 2 October 2002 and had made an asylum claim, which had been refused, but he had been granted exceptional leave to remain until December 2006. In the normal way, he would have been released on licence after serving half his sentence, but in fact he was detained followed what would have been the date of his release. The reason for the detention was that the Secretary of State was proposing to deport him to Iraq, on the grounds that it was conducive to the public good; he had originally come from Iraq.[3]The Secretary of State had adopted a policy sometime in 1998 that he would not deport nationals who had originated from countries which were active war zones; I will consider the precise terms of the policy later. The appellant contends that Iraq was at the time of his initial detention an active war zone, and that had the policy been properly applied, he could never have been lawfully detained. Before noting this policy, it is relevant to consider the protection potentially available to someone in the appellant’s situation. First, there are Articles 2 and 3 of the European Convention on Human Rights, which of course traditionally are the provisions relied upon by those seeking to avoid being sent back to their home countries. They are not directly in issue in this case. Secondly, there are certain additional protections which are conferred upon persons by the Qualification Directive (Council Directive 2004/83/EC), which is part of the common European asylum system. It seeks to set minimum standards for the qualification and status of third countries nationals or stateless persons as refugees, or as persons who otherwise need international protection.[4]In the case of QD v SSHD [2009] EWCA Civ 620, Sedley LJ described the effect of the Directive as follows:
“9. As this suggests, the Directive brings together classical Geneva refugee status with what it calls subsidiary protection status. The latter status has broadly two sources. One is the obligation assumed by all EU member states as part of the Council of Europe to give effect to the rights contained in the European Convention on Human Rights and Fundamental Freedoms – essentially rights of non-refoulement for individuals who cannot establish an affirmative right to asylum. The other is the humanitarian practices adopted by many EU states, the UK included, towards individuals who manifestly need protection but who do not necessarily qualify under either convention. Among these are people whose lives or safety, if returned to their home area, would be imperilled by endemic violence.”
Of specific relevance to that protection is Article 2 of the Directive, which provides that:
“‘person eligible for subsidiary protection’ means a third country national … who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin … would face a real risk of suffering serious harm as defined in Article 15 … and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.”
The definition of serious harm in Article 15 then includes at Article 15(c):
“… serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.”
[5]The European Court of Justice held in the case of Elgafaji (17 February 2009) that the protection afforded by Article 15(c) did not require the individual to show that he was specifically targeted by reason of factors particular to his personal circumstances, and confirmed that it went beyond the protection afforded by Articles 2 and 3 of the European Convention. The court held that the existence of a threat to life or person could be established exceptionally:
“...where the degree of indiscriminate violence characterising the armed conflict taking place -- assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred -- reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to the serious threat referred in Article 15(c) of the Directive.”
The principles enunciated in Elgafaji were then further developed by this court in QD, the case to which I referred.[6]I turn to the relevant chronology in this case. As I have said, the appellant was sentenced on 8 August 2006 to 12 months’ imprisonment. On 6 December he completed his custodial sentence and was detained thereafter under immigration powers. On 13 December he was served with a Notice of Decision to make a Deportation Order, and served with a signed Deportation Order on 21 December 2006. He submitted an out-of-time appeal on 29 December 2006 on the basis of human rights, and that was dismissed on 30 March 2007. He sought a reconsideration of that decision, as he is allowed to do under the statutory appeal procedures, on 5 April 2007, and that was refused on 23 April 2007. He did not seek to appeal further to the High Court Judge, as was his right, and the time for making that appeal expired on 3 May 2007.[7]On 13 June 2007 the Deportation Order that had been served on 21 December 2006 was revoked. Apparently, it was thought appropriate to do that because in the normal way, if an appeal is made against a decision to make a deportation order, then no deportation order will be made; here, it was made, and the appeal was lodged out-of-time after the order had been made, but nonetheless the Secretary of State thought it appropriate to revoke that original order. A new Deportation Order was then served on 28 June 2007. By this stage, the appellant was receiving some legal advice, and further representations were lodged by his legal representatives on 21 December 2007, but these were rejected by the Secretary of State. Following a determination of the Asylum and Immigration Tribunal in a case called HH, the decision of 13 December 2006 to deport the appellant from the United Kingdom was reviewed, and the previous decision was replaced by one dated 21 November 2008. The Deportation Order served on 28 June 2007 was therefore withdrawn.[8]The power to detain the appellant is conferred by paragraph 2(2) of Schedule 3 to the Immigration Act. There is a power to detain pursuant to paragraph 2(2) once a decision to make a Deportation Order has been made, and under paragraph 2(3) once the Deportation Order itself is served. The powers are expressed in very broad terms, but they are nonetheless subject to certain restrictions. These were spelt out by Woolf J, as he was, in the case of Hardial Singh [1984] 1 WLR 704 at 706:
“Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Second, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend on the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention. In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time.”
[9]In R (I) v SSHD [2003] INLR 196, [2002] EWCA Civ 888, Dyson LJ distilled the judgment of Woolf J into four propositions. First, the Secretary of State must intend to deport, and can only use the power to detain for that purpose. Second, the period must be reasonable in all the circumstances. Third, once it becomes clear that deportation cannot take place within a reasonable period, the detention should not continue. Fourth, the Secretary of State should act with reasonable diligence and expedition to effect a removal.[10]The contention advanced before the judge was that the original detention was unlawful, since it was not possible for the appellant lawfully to be deported because of the application of the policy; and that in any event, it became clear after awhile that the deportation could not take place within a reasonable time, and therefore the appellant should have been released at that stage. The judge considered the application as a rolled-up application; that is, considering both the application for permission for judicial review, and if permission was given, to consider the substantive hearing at the one hearing. He granted permission with respect to the second submission, and found that the detention was unlawful from, in Mr O’s case, 8 January 2008. However, he rejected the first ground, and refused to grant permission with respect to it. He did, however, give permission for that matter to be appealed to this court. We are considering it as a rolled-up application; that is, with permission to be considered first, and if granted, we will consider the substantive appeal.

The Active War Zone Policy

[11]The policy is contained in a document entitled “The Operational Enforcement Manual”. In Chapter 12, paragraph 3, it identifies seven categories of persons who are exempt from deportation. The final category is described as follows:
“enforcement action should not be taken against nationals who originate from countries which are currently active war zones. Country Information Policy Unit (CIPU) or Enforcement Policy Unit (EPU) will provide advice on this”
That policy was formally withdrawn on 14 January 2008, although as Sedley LJ indicated when giving the leading judgment in SSHD v HH (Iraq) [2009] EWCA Civ 727, the policy had not been applying, and indeed lay unnoticed for a number of years, although it was identified on the UK Border Agency website, and attention was also drawn to it in one of the leading textbooks on immigration law, MacDonalds Immigration Law and Practice. It was withdrawn once it had been drawn to the Secretary of State’s attention that it was formally in existence. The Secretary of State when withdrawing the policy explained that its original intention had been to ensure that individuals were not sent into an environment where as a result of armed conflict, they would face unacceptable danger. It was assumed that following the Human Rights Act, and in particular as augmented by Article 15(c), to which I have made reference and which provided humanitarian protection to those who might be caught up in areas of endemic violence, that it was no longer necessary to have this specific policy, since individuals would be protected by that provision in any event. The appellant submits that the policy was, however, still in effect, and the Secretary of State had failed to have regard to it when he was making the decision whether or not to deport the appellant.[12]The judge considered that the first stage in the argument required establishing whether Iraq was an active war zone on 6 December 2006, when the Secretary of State made the decision to deport the appellant. The judge noted that the AIT had concluded that Iraq was an active war zone in HH (Iraq) v SSHD [2000] UKAIT 0051. Before the Court of Appeal in that case, the Secretary of State did not seek to challenge that finding, although the Home Secretary indicated to the court that he did not necessarily accept that it was an active war zone. Burnett J considered that the starting point should be the presumed intent of the policy maker, and that in turn engaged the question why it would be appropriate to start enforcement action against someone whose country was an active war zone. He concluded, relying upon certain dicta of Sedley LJ in HH (Iraq) that the reason was principles of common humanity. As Sedley LJ had put it at paragraph 6:
“...it has been known for many years that the Home Office, for entirely intelligible reasons, does not return foreign nationals to parts of countries where war is raging or uncontrolled violence is endemic … What undoubtedly can be said is that since the coming into effect of the Qualification Directive, the practice of the UK and many other European states in this regard has in large part acquired the force of law.”
Sedley LJ made a similar observation in the paragraph in QD (Iraq) to which I have made reference above.[13]The judge concluded that the policy was concerned with “countries that for practical purposes can be considered in their entirety to be active war zones”. I do not think he was thereby suggesting that even if the proposal was to send an individual back to that part of the country where there was active engagement, this would be consistent with the policy. He was simply saying, consistent with his “common humanity” starting point, that if a person could be safely returned to another part of the country where war was not raging, and which was relatively tranquil, then there was no reason in principle why he should not be returned. This is supported by his observation at the end of paragraph 21 of his decision, when he said this:
“A reasonable understanding of the policy could not interpret it as prohibiting enforcement action against a national simply because part of his home country might properly be considered a war zone, when safe return to other parts of the country was possible. On the contrary, what the policy was concerned with was the return of an individual to an environment which would, without more, place the person concerned at risk to his life or person.”
[14]In the course of submissions before the judge, various statements from politicians and political commentators were relied upon to support the proposition that the internal conflicts in Iraq amounted to civil war, and that in effect the whole country was engaged. The judge was not impressed by any of these statements; he was satisfied that there undoubtedly were areas which could properly be described as a war zone. He relied upon the Home Office Operational Guidance issued on 12 February 2007 to support the proposition that not all areas were; he noted, for example, that Kurdistan had, according to that guidance, been “largely unaffected by the fall of Saddam Hussein”. And the conclusion in the guidance at paragraph 3.7.12 is as follows:
“Generally the reports of tension and security breaches in Iraq do not demonstrate that there would be a consistent pattern of gross and systematic violation of rights under Article 3 ECHR. The current evidence also does not suggest that the level of violence and insecurity in Iraq amounts to a serious risk of unlawful killing. Moreover, as highlighted in the country guidance case of KH [2008] UKAIT 00023, in no part of Iraq are levels of indiscriminate violence such that they place all civilians at individual risk. Therefore in the absence of a heightened risk specific to the individual, an ordinary Iraqi civilian from any part of Iraq will generally not be able to show that they qualify for humanitarian protection on the basis of indiscriminate violence and so a grant of Humanitarian Protection in such cases is unlikely to be appropriate.”
One might have thought that, having reached that conclusion, the judge might have gone on to consider whether it was possible to return this appellant to a safe zone. I do not intend to criticise the judge, however, for not addressing that issue; we were told that it was not a question raised before him. It appears that he was certainly under the impression that the appellant’s argument was that once any part of the country was a war zone as defined, then this meant that the appellant could not be returned to any place in that country, whether it was caught within the war zone area or not. The judge, it seems to me, was simply rejecting that submission.[15]The judge then went on to consider two further arguments in support of the contention that permission should be refused. The first was that the claims were out of time; he did not reach a concluded view about that, but indicated that the submission had some force. The second was that judicial review was, in any event, an inappropriate way to proceed, because of the statutory appeals procedure to which I made reference. In considering this aspect of the case, the judge had regard to the decision of this court in R (G) v Immigration Appeal Tribunal [2004] EWCA Civ 1731, where the appeal court in a judgment given by Lord Phillips of Worth Matravers, upholding a first instance decision of Collins J, said this:
“...we have concluded, in agreement with Collins J, that the statutory regime, including statutory review of a refusal of permission to appeal, provides adequate and proportionate protection of the asylum seeker's rights. It is accordingly a proper exercise of the Court's discretion to decline to entertain an application for judicial review of issues which have been, or could have been, the subject of statutory review.”
He then emphasised in paragraph 27, however, that judicial review would be available where justiciable errors were not susceptible to the statutory appeal process.[16]As I have said, at the time when these applications for judicial review were made, there was the statutory procedure in place which entitled someone challenging the decision of the Immigration Judge first to seek reconsideration by a Senior Immigration Judge, and thereafter to the High Court Judge. They could order reconsideration, and if that reconsideration was successful then there would be a further fresh hearing.[17]The judge in this case was satisfied that it was not an appropriate case to allow judicial review of the making of these deportation orders. He recognised that there had been a collective ignorance of this policy, and that the Home Office Presenting Officer had not directed the attention of the Immigration Judge to the policy, notwithstanding that the litigant at this stage was representing himself, but he did not consider that this was sufficient to dislodge the general principle that the statutory appeal process has to be pursued, and that judicial review is inappropriate. Accordingly, even had he taken a different view of the scope of the policy, he said he would not have granted permission to appeal for that reason alone.[18]The judge considered a further argument, namely whether the policy, or in this case the alleged failure to have regard to it, was material to the decision to detain. The judge found that the contemporaneous documentation supported the view that the detention had been because of fear of absconding, and these were consistent with the fact that a number of judges had refused bail applications, so he did not consider that the failure to have regard to the policy had any causative effect on the decision to detain. We did not hear argument directly on this issue, but I understand Mr Symes to be submitting that if the policy had been properly applied, then no detention could have been lawful, because the detention would not have been for a lawful purpose within the Hardial Singh principles.

The grounds of appeal

[19]We heard submissions today from Mr Symes, counsel for the appellant, and it became clear that in a number of ways the issues before us were being narrowed. First, Mr Symes conceded that if the appellant could be returned to a safe part of Iraq, that would not infringe the policy. It does not appear that this concession was made below, and as I have said, I think the judge’s analysis was in substance directed to demonstrating why the concession must, in fact, be correct. Although as a matter of language, Iraq would be a country which was currently an active war zone, nonetheless Mr Symes accepts that the intention could not have been that the UK government should defer deporting someone to his home country merely because there was in some other part of that country, remote from the proposed place of return, active hostilities which jeopardised life and limb. For my part, as I have said, I think that is all Burnett J was determining when he held that Iraq as a country was not a war zone.[20]Second, both counsel accepted that in the discussion below, it had simply been assumed that the appellant would be returned to Baghdad; that was his home area, although he had originally come from Kurdistan. The question, therefore, was whether that was an area in Iraq which constituted a war zone, because of the level of endemic violence being carried out in that area. This question was not a matter, as I have said, which the judge below addressed, or one on which he heard evidence.[21]Mr Symes accepts that even if the judicial review application he is now pursuing were to succeed, he could not obtain the relief which he seeks, namely a finding that the detention was unlawful, without first further findings of fact being made. In particular, it would be necessary to define the state of armed conflict in Baghdad at the end of 2006, and there may also be an issue whether even if Baghdad was a war zone under the terms of the policy, nevertheless it might have been possible safely to escort the appellant through that area to a safe haven.[22]I turn now to consider the two principal grounds of appeal. First, was the appellant being returned to a war zone? The principal submission with respect to the judge’s analysis of the policy was that he had simply misinterpreted the scope. Mr Symes submitted that there was no proper basis for the judge’s analysis that underlying this policy was the principle of common humanity. On that analysis, the policy would apply only where the level of risk was broadly equivalent to that which would attract the humanitarian protection conferred by Article 15(c) of the Qualification Directive. The contention is that the policy would apply even where a lower level of risk was apparent. A more likely purpose behind the policy, he submitted, was the need to safeguard escorts who were taking persons back to the war zones. They would be protected from risks that might fall well short of those which would demand the grant of humanitarian protection.[23]The first point to note about this submission is that it is possibly not necessary for it to succeed in order for Mr Symes’s judicial review claim, at least as it is now pursued, to be sustained. Mr Symes submits that even if the test as to the level of risk is that it must be akin to that found in Article 15(c), nevertheless the state of affairs in Baghdad was such that that level was attained. So this submission only matters if a tribunal determining the facts were to find that Baghdad did not pose a level of risk sufficient to engage Article 15(c). Only then would it have to go on to consider the application of the policy, because that is directed to a lower level of risk.[24]In support of his submissions, Mr Symes correctly observed that there was no evidence as to the actual purpose behind the policy. The Secretary of State’s conjecture when repealing the policy, that it was now otiose because its purpose was achieved by a combination of the Convention rights and Article 15(c) of the Qualification Directive, was just that. It was mere conjecture; it was no substitute for evidence. Mr Symes submitted that if the appellant was facing serious risks abroad then he would be protected by Articles 2 and 3; and it would make no sense to equate the protection under the policy for that conferred by Article 15(c), now reflected in Immigration Rule 329(c), because the policy must have been intended to cover situations where alternative means of protection were not available. It follows, so this argument goes, that the policy was not merely a synonym for the concepts involved in the law of human rights, subsidiary protection and refugee status; rather, it provided protection where the level of risk would not be sufficient to confer any rights upon the appellant under those traditional principles.[25]Mr Singh, for the Secretary of State, submits that the judge was entirely correct in his approach to the meaning of active war zone; the UK has long adopted a practice of not returning persons to their home area where, to use the language of Sedley LJ in QC (Iraq), they would be imperilled by endemic violence. These persons are now protected by Article 15(c); that was designed to protect those who for humanitarian purposes should not be returned, because of the risks they faced from such endemic violence, and that protection would be afforded to them, even if they could not bring themselves within the scope of Articles 2 and 3 of the European Convention. Accordingly, his submission is that although the policy was not formally revoked until January 2008, it had effectively lost any significance by then.[26]I do not think that the Secretary of State can contend that the policy was not in force following the implementation of Article 15(c) in October 2006; that, it seems to me, would be inconsistent with the decision of this court in SSHD v HH (Iraq), to which I have already made reference, and where it was held that a failure to have regard to the policy could render the initial decision unlawful. It appears that in that case, Article 15(c) was already in place when the Secretary of State had failed to have regard to that policy.[27]However, like the judge, I wholly reject the submission that the purpose of the policy would be to protect persons escorting refugees back to their home state, as Mr Symes submitted. The particular paragraph is part of a policy directed at categories of people who are not to be returned; that strongly suggests that the focus is on those whom the government is seeking is remove, or considers that it ought not to remove. If its purpose had been to safeguard escorts, I would not have expected that to be contained in a policy of this nature at all, and in any event I would have expected it to be plain from the policy that this was its purpose. The appellant’s attempt to construe the policy, with the effect of widening its scope, by reliance on later protections afforded, in particular, by Article 15(c) does not succeed precisely because that Article was not in place when the policy was developed; so it is not legitimate to assume that the policy was intended to apply to other and different risks. On the contrary, it would not be surprising that later rules are concerned with essentially similar risks.I have no doubt, therefore, that the judge was right in his identification of the purpose behind this policy.[28]However, a further point was advanced in argument before us, and again was a matter which had not been raised with the judge below. It was this. Article 15(c) does not apply to persons who commit serious offences; they do not have the benefit of subsidiary status conferred by the Directive. The definition of serious offences is left to Member States, and in the case of the UK it is contained in an asylum policy instruction, and applies to anyone who is sentenced to 12 months’ imprisonment or longer, and here the appellant was sentenced to 12 months. Mr Symes says that it is precisely for this reason that the appellant is seeking to rely on the policy and not upon Article 15(c). Accordingly, he submits that the policy has practical application; it might fill a gap which Article 15(c) has created, and give protection to this appellant.[29]Even if he is wrong on his first submission, and the level of risk has to be that which would attract 15(c) in the appropriate case, it may be that this was the level of risk in Baghdad at the relevant time, and the appellant could only then gain protection through the policy if he was not able to do so via Articles 2 or 3. It is not at all clear from the terms of the policy whether it was envisaged that there may be exceptions to it so as to exclude someone like the applicant. The first sentence is in very general terms, but the second sentence indicates that advice will be provided by the Country Information Policy Unit or the Enforcement Policy Unit. It may be that it was envisaged that there would be exceptional circumstances where the general policy would not be applied, and that this would be a matter for the relevant policy unit to determine.[30]I do not see that we can properly determine this question without evidence as to how the policy was understood by those implementing it at the material time. If this matter had been raised at an earlier stage, then it is possible that there would have been additional material, and not simply the bare policy itself, which might have given some assistance as to its intended scope. I do not think it would be right for us to make a finding on the precise scope of that policy, when the issue has only been raised for the first time today in argument. So I am not prepared to hold that the policy can be relied on even though Article 15© cannot.[31]I turn to the second main issue, which is whether judicial review is an appropriate remedy. It is not disputed that the general principle is that if there are (inaudible) appeal procedures, then it will rarely be appropriate to grant relief. I have already referred to the case of GM referred to by the judge, but the principle is a much more general one and it has been reiterated numerous times before the courts, such as in cases as R v Chief Constable of the Merseyside Police, ex parte Calveley [1986] QB 424, and R v SSHD, ex parte Swati [1986] 1 WLR 477 at 485. It is often emphasised that judicial review is a remedy of last resort, or that it is a long stop or words to that effect. That is not, of course, a binding rule; there will be exceptional cases where judicial review will be permitted. The ground relied upon here, at least in Mr Symes’s skeleton argument, was that new material had emerged, namely the fact that this policy had existed; it was not appreciated that this was so until the AIT ruling in HH. But as I have indicated, the policy was in fact readily available on the UK Border Agency website, and was cited in the immigration law text. It could not properly be described as “unavailable material”.[32]The most persuasive argument advanced by Mr Symes to justify judicial review is that given that the appellant was a litigant-in-person, then he should have been alerted to the existence of this policy, as should the Immigration Judge, by the Presenting Officer for the Secretary of State. It is likely that the policy was not identified because it had been forgotten. By that, I do not mean to suggest that the UK government was adopting the practice of sending people back to war zones willy-nilly; as Mr Symes fairly observed, there had a practice of not sending individuals back to certain states, and these generally would include those states where it might be said that there were war zones. I would observe, however, that even had the policy been identified and referred to the Immigration Judge, it would certainly not have been decisive of the appeal; it would have involved further fact-findings of a kind which I have already indicated.[33]I do not think that this is a legitimate reason for allowing the exceptional course of permitting judicial review in this case. That is particularly so in a case where the resolution of the legal issue before the court does not determine the matter in the appellant’s favour. As I have indicated, there would have to be factual findings, for which judicial review is a wholly inappropriate process. Furthermore, in effect the current appeal is asking a court to define the scope of the policy before any relevant facts have been found by the fact-finding tribunal; it may be that the question is entirely hypothetical.[34]There is no doubt that had this matter been raised before the Immigration Appeal Tribunal in the usual way, then it was the kind of issue that they could properly determine with their particular expertise, having found all material facts. The failure to raise it at the appropriate time does not, in my judgment, entitle the appellant to seek to raise it now, particularly in the way it has been raised; that is, seeking to establish certain legal principles which may or may not be relevant if the fact-finder were to determine the relevant facts in his favour.[35]In my judgment, a more appropriate way for this matter to have been raised, as suggested by Mr Singh, would have been for the appellant to seek to reopen out of time his statutory appeal to the High Court. Mr Symes contended that that was unrealistic, since by the time he wished to do that, the original detention order had been revoked; but I do not see in principle why its legality could not have been tested in that way if the judge could have been persuaded that there was some legitimate purpose lying behind the appeal.[36]I do not determine whether the application should be refused, in any event, for being out of time; I am inclined to think that it should, given the very considerable delays, but it is unnecessary to determine that issue. For the reasons I have given, in my judgment the judge was right to refuse to permit the application for judicial review to go ahead, and accordingly I would dismiss this appeal.[37]I agree that we cannot seek to define the scope of a policy without knowing the extent and nature of the evidence as to its origins. I also agree that the correct course for the appellant in this case would have been to apply to exercise his statutory remedies rather than seeking judicial review. I agree, for the reasons given by my Lord, Lord Justice Elias, that this appeal should be dismissed.[38]I agree with both judgments, and would only add this: we were, in effect, asked to construe the policy as if it were a law; laws are made by legislators and interpreted by judges in the form of case law. Policy is neither written to be a law nor intended to be a law. One’s approach to a policy document must necessarily be very different from that required when construing a statute, a statutory instrument, directive, or the like. One does not expect nor need a policy maker to deal with all the possible exceptions and variants, and so on and so forth, the sort of thing which a lawyer advising a legislator will say has got to be put in.[39]When one looks at this policy document, it is quite clear that it is very general in nature. The second sentence is obscure; it seems to suggest that you go off and ask somebody else. Quite what you ask them, we do not know. There is no reason why in a policy document that should not be there. It shows very much how one cannot treat this policy document in the same way as if it were a law.

Order

Appeal dismissed.

Cited in 1 later judgment