Rashid, R (on the application of) v Secretary of State for Home Department [2004] EWHC 2465 (Admin)

Case No CO/2941/2003

[2004] EWHC 2465 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday, 22 October 2004

Strand

London WC2

B E F O R E:

MR JUSTICE DAVIS

Between

THE QUEEN ON THE APPLICATION OF BAKHTEAR RASHIDClaimant

-v-

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR R HUSAIN (instructed by Refugee Legal Centre) appeared for CLAIMANT

MR S GRODZINSKI (instructed by the Treasury Solicitor) appeared for DEFENDANT

J U D G M E N T

MR JUSTICE DAVIS: Introduction

[2]This is - or at all events one hopes it is - an unusual case.

[3]The claimant, Bakhtear Rashid, an Iraqi Kurd, claimed asylum in the United Kingdom on 4th December 2001. His application for asylum was refused on 11th December 2001 and a decision of an adjudicator on appeal on 7th June 2002 was adverse to the claimant. Permission to appeal was refused by the Immigration Appeal Tribunal on 12th July 2002. Unknown to the claimant and his advisers (and also, so it seems, unknown to those at the Home Office handling his case) there was in existence -- it is too much to say that there had been promulgated -- a policy of the Secretary of State which, as it is now conceded, should have been applied to the claimant at the time and which, if so applied, as it is also now conceded, would have resulted in his being granted refugee status and entitled to indefinite leave to remain in the United Kingdom. The existence of this policy only became known to the claimant and his advisers when it was revealed in the context of the cases pending in the Court of Appeal of two other applicants in precisely the same position as the claimant early in March 2003. Those two applicants were granted refugee status by the Secretary of State accordingly. The case of this claimant was referred back to a case officer for reconsideration in consequence. However, before his case was actually reconsidered, the war in Iraq with Saddam Hussein intervened. In the aftermath of that, the decision was eventually taken that, in the circumstances as they by then stood, the claimant no longer qualified for refugee status; and his application for refugee status and leave to remain in the United Kingdom was accordingly refused. The question in this case in essence comes to this: is such decision invalid on grounds of unfairness? Facts

[4]The background facts in rather more detail are as follows. The claimant is a national of Iraq of Kurdish origin. He was born on 1st July 1983 in northern Iraq in Arbil, which subsequently became part of the Kurdish Autonomous Zone (KAZ). In 1987, at the age of four, he moved to Makhmur in southern Iraq, an area which at the material times, and until the war in 2003, was under the control of the Ba'athist regime. He left Iraq in October 2001 and arrived in the United Kingdom via Turkey on 4th December 2001 when he claimed asylum. He was interviewed. Subsequently his application was refused by decision letter dated 11th December 2001. That letter accepted that the claimant "would have protection concerns in the area still controlled by Saddam Hussein's Ba'ath government". But the letter went on to state that there were areas in the KAZ where he would not have a well-founded fear persecution and it would be reasonable to expect him to go there. That letter, however, proceeded on the erroneous basis that the claimant was from the KAZ. This was corrected by a subsequent letter dated 14th May 2002; but the original decision was maintained.

[5]The claimant appealed. The hearing before the adjudicator took place on 15th May 2002. The claimant was represented and gave evidence. The Secretary of State appeared by a presenting officer. The presenting officer's case was put on the basis that there was no well-founded fear of persecution. It was also expressly stated, as the adjudicator noted, that the claimant would not be returned to any area of Iraq under the control of Saddam Hussein's government but to the KAZ, this being in accordance with a general undertaking which had been given at that time by the Secretary of State in the case of failed Kurdish asylum seekers from southern Iraq.

[6]The adjudicator, by determination issued on 7th June 2002, dismissed the appeal. He stated:

"I do not believe that the Appellant has given a credible account of why he left Iraq."

He further noted that, as the claimant would not be removed to Makhmur but to the KAZ, he would not be at risk of adverse treatment there; that if he were returned to Iraq he would not be of any adverse interest to the Iraqi government; and that it would not be unduly harsh to remove him to the KAZ.

[7]The claimant sought to appeal. The Immigration Appeal Tribunal refused permission to appeal. Its decision, dated 1st July 2002 and issued on 12th July 2002, amongst other things said this:

"3. It is true that the Adjudicator did not give reasons for his finding that the Appellant did not give a credible account of why he left his home area Iraq. This is because he found that the Appellant would not be removed other than to the KAA and therefore focused on whether the Applicant could establish a well-founded fear of persecution there, and if internal relocation to the KAA would be unduly harsh."

And at paragraph 5:

"5. Therefore, although the Adjudicator did not give a reasoned explanation for his finding that the Applicant had no fear even in his home area, this could make no difference to the end result, because he reached proper conclusions both on internal relocation and on undue harshness. As the Applicant failed to satisfy the fear test in relation to the KAA, the issues raised about the protection test do not arise."

Thus an essential basis for the Immigration Appeal Tribunal's refusal of permission to appeal was that the claimant would be, and could properly be, relocated to the KAZ.

[8]On 2nd October 2002 the claimant applied for judicial review of this decision of the Immigration Appeal Tribunal. Amongst other issues raised, challenges were made as to the adjudicator's decision on the asylum merits and also as to protection issues within the KAZ. On 4th February 2003, after an oral hearing, Harrison J granted permission. He directed that the substantive hearing was to be listed after the disposal of three other cases pending in the Court of Appeal called Anwar, Simon and Maghdeed.

[9]Those three cases were due to be heard together in the Court of Appeal on 19th and 20th March 2003. The principal issue in the cases of Maghdeed and Anwar was whether those applicants could reasonably be expected to relocate to the KAZ in circumstances where they had a well-founded fear of persecution in their home areas in Ba'athist Iraq. I was shown some of the papers in their cases. It is however sufficient for me to say that it is expressly accepted on behalf of the Secretary of State in the present case that the position of the claimant -- that is, Mr Rashid -- was precisely on all fours with that of the applicants Maghdeed and Anwar.

[10]Those cases were in the event never heard by the Court of Appeal. The reason for that was apparently as follows. It has since been said that "shortly prior to the Court of Appeal hearing" the existence of a certain policy was "in general terms" brought to the attention of those representing the Home Office on the appeals (which incidentally connotes that those representatives had themselves known nothing of such a policy). What was that policy? It was explained at the time in these terms by a letter from the Home Office to the Immigration Law Practitioners' Association dated 20th February 2003. That letter, amongst other things, said this:

"I am writing to let you know about a couple of changes that are taking effect today in the handling of asylum claims from Iraqi nationals."

The first change was then set out and then this was said:

"At the present time, we will not be applying the option of internal relocation to the KAZ for applicants from Government controlled Iraq."

[11]On 6th March 2003 a letter was sent by the Treasury Solicitor to the legal representatives of Mr Anwar and Mr Maghdeed respectively. Reference having been made to the current appeals, this was said:

"Although the Secretary of State remains of the view that the Tribunal's determination is correct as a matter of law, he was not, as a matter of policy at the time of this case, relying on the availability of relocation from southern Iraq to the KAA. Accordingly, the Secretary of State will shortly be writing to your client granting him refugee status and would therefore invite you to withdraw your appeal."

[12]The legal advisers to the claimant naturally became aware of these letters. In consequence, they faxed a letter dated 12th March 2003 to the Treasury Solicitor referring to the disposal of Mr Anwar's and Mr Maghdeed's cases and to the comparable facts of Mr Rashid's case. That letter concluded in this way:

"We now know from Ms Townsend's letter that at the time decisions were taken by the Secretary of State in Mr Rashid's case, it was not the Secretary of State's policy to rely on 'the availability of relocation from southern Iraq to the KAA. The clear rationale underpinning the Secretary of State's recent decisions in Anwar and Maghdeed also applies to Rashid, since it would clearly be unfair, and contrary to a legitimate expectation that has been conferred on Mr Rashid, for refugee status to be withheld from him notwithstanding the grants to Anwar and Maghdeed. I would be grateful if you could confirm within the next 14 days that refugee status will be granted, failing which we reserve the right to bring an application for judicial review without further reference to you."

[13]On the same day there was a response from the Treasury Solicitor and this was said: "As no doubt you will have anticipated I was well aware of the developments in the cases being handled by my colleague Sarah Townsend in the Court of Appeal behind which this case is stacked. Your client's case had, as a result of those developments, been referred back to a Senior Home Office caseworker early last week for reconsideration. It is however unlikely that a full review will have been undertaken and any decision communicated to you in the time period suggested in your fax." (I should perhaps add, because of the reference to "stacking", that I was informed at the hearing before me that so far as the Secretary of State is aware currently no case other than this claimant's is awaiting resolution on the particular point now raised.)

[14]By a letter of 21st March 2003 the Home Office wrote to the Immigration Law Practitioners' Association to say that, in the light of the commencement of military action in Iraq, decision-making on asylum claims from Iraqi nationals had been suspended as from 20th March 2003.

[15]Thereafter, the solicitors for the claimant wrote chasing letters to the Treasury Solicitor. They queried why there need be any delay since "all that is requested of the Secretary of State is that Mr Rashid be given equal treatment to that which had been afforded to Mr Maghdeed and Mr Anwar". No substantive response was given. It was simply said that the matter was being considered.

[16]On 24th June 2003 the claimant commenced a second set of judicial review proceedings, stating that the Secretary of State had wrongly failed to apply his policy to the claimant; that there had been a breach of the claimant's legitimate expectations; and that such conduct was so unfair as to amount to an abuse of power. The Secretary of State responded that this second claim for judicial review was premature in the light of the extant first claim for judicial review. In due course Collins J, on 3rd September 2003, indicated that the second claim should be left open pending determination of the first claim for judicial review.

[17]On 9th October 2003 the claimant applied to withdraw the first claim for judicial review. The reason advanced in a skeleton argument lodged at the time on behalf of the claimant was as follows:

"The first judicial review of the refusal of leave to appeal by the IAT is in the process of being withdrawn, in recognition of the fundamental changes in conditions in Iraq following the Tribunal's decision to refuse leave to appeal, and in recognition of the unreality of insisting upon a classic historical 'date of decision' focus in the first judicial review claim."

[18]That first claim for judicial review was formally withdrawn on 17th November 2003. Still there had been no further decision in the case of the claimant. It eventually materialised on 16th January 2004, some 10 months after the original indication in March 2003 that the claimant's case was being reconsidered. No satisfactory explanation for the totality of this delay has been proffered.

[19]That decision letter is very important to this case, not only for the decision itself and the reasons for the decision which it communicates, but also because of its statements as to the policy alluded to in the earlier correspondence in March 2003. It is a long letter. In the most relevant respects it provides as follows:

"The summary grounds of defence submitted on behalf of the Secretary of State for the Home Department in response to the above application for judicial review acknowledged that that Secretary of State had identified a reason why he should look again at Mr Rashid's case to see whether the original refusal of asylum ought to stand in the light of the Secretary of State's decision to grant refugee status to Maghdeed and Anwar. I am very sorry that you have not had an earlier response. This was due in part to the suspension of decision making on Iraqi cases due to the outbreak of hostilities in the Gulf and the need to resolve certain policy and legal issues. 2. Mr Rashid's case has now been fully reviewed at senior caseworker level. I am writing to let you know that following careful consideration it has been concluded that the original decision to refuse asylum on 11 December 2001 was sound and is maintained. ... 9. In accordance with this premise, and in accordance with the basic principle set out in the well known case of Ravichandran, Mr Rashid's substantive claim has first been reviewed looking at the situation in Iraq as of now. (We deal with the separate issue of legitimate expectation below.) ... 14. In the light of all the evidence above it has been concluded that Mr Rashid has not established a well-founded fear of persecution and that he does not qualify for asylum. 15. Careful consideration has been given as to whether the alleged treatment referred to in Mr Rashid's claim might involve a breach of Article 3 of the ECHR if he were returned to Iraq, but for the reasons stated it is not considered that Mr Rashid has demonstrated a real risk of treatment contrary to Article 3. Therefore Mr Rashid does not qualify for Humanitarian Protection. Careful consideration has also been given as to whether Mr Rashid should qualify for discretionary leave in the United Kingdom but he has not raised any issues which would give rise to such a grant of leave."

[20]The letter then turns to deal with the arguments as to legitimate expectations raised on behalf of the claimant. It is necessary to set out the Secretary of State's observations on these in full:

"16. We now turn finally to the basis of your judicial review challenge based upon the argument that Mr Rashid had a legitimate expectation that he would benefit from a policy to the effect that in the case of persons with well founded fears of persecution in Government-controlled Iraq, the Home Office would 'disavow reliance' on the 'internal relocation option': i.e. would not contend that such persons should have relocated to the KAZ. 17. First, I will seek to clarify the policy to which you refer in your current challenge. From October 2000, there was in existence within the Home Office a general policy that internal relocation to the former KAZ from government controlled Iraq would not be advanced as a reason to refuse a claim for refugee status. This was based on the stance of the Kurdish authorities of not admitting to their territory those who were not previously resident in that area because of a lack of infrastructure and resources. 18. (Given the basis of the policy as set out above, it did not (save as set out below) apply to those persons who came from the KAZ. For example if a Kurd from the KAZ experienced difficulties with one or other of the two parties that exercised de facto control in the KAZ, then depending on the circumstances of the case we might argue internal flight to the area in KAZ controlled by the other party. However there remained an exception to this part of the policy, relating to high profile opponents of Saddam's regime; this exception arose because of the perceived inability of the authorities in the KAZ to provide sufficient protection in such cases.) 19. However the general policy described was not consistently applied, and caseworkers and presenting officers sometimes argued that internal relocation to the former KAZ for those from government controlled Iraq was a reasonable option if they had close ties to the area. 20. As you will be aware, the Immigration Appeal Tribunal had originally allowed Mr Maghdeed's appeal because it found that the KAZ was not a state or state-like entity that was capable as a matter of law of providing protection under the terms of Article 1A(2) of the Refugee Convention and that in consequence could not (by definition) offer a safe relocation option. In view of that finding the policy described above changed. Notwithstanding that we were of the opinion that the Tribunal had erred in law in reaching this conclusion on 23 October 2002 we issued guidance pending our appeal to caseworkers that they should no longer argue the internal relocation option even within the Zone. 21. However, subsequent Tribunal decisions found that the PUK and KDP were state-like entities that were capable of offering protection to those who resided in their respective territories. Consequently we reverted to our previous policy of applying the option of internal relocation within the KAZ for those who had previously resided there. However, for the same reason that informed our October 2000 policy, we continued not to argue internal relocation from government controlled Iraq to the former KAZ. This change of policy was explained in a letter to the Immigration Law Practitioners Association on 20 February. 22. When, shortly prior to the Court of Appeal hearing in Maghdeed and Anwar, the existence of the policy described above was, in general terms, brought to the attention of those representing the Home Office, an urgent decision was taken (considered to be appropriate at the time) that those two individuals ought to be granted refugee status. 23. However in light of your current challenge, the Home Office has carefully reconsidered the position both generally and on the facts of your client's case to see whether he should now be granted refugee status, and have concluded that he should not. The existence of the policy and the decision in those two cases cannot mean that the Home Office is (as your challenge impliedly suggests) now compelled to ignore the current situation in Iraq and the non-existence of any well founded fear on the part of your client in any part of Iraq. To do so would run contrary to the principle established in Ravichandran referred to above. It cannot be characterised as an abuse of the Home Office's power (notwithstanding the existence of the earlier policy) to make its current decision as to your client's entitlement to refugee status, on the basis of the current situation in Iraq. 24. Further, your client does not suggest that he was even aware of, let alone relied upon, the existence of the policy. On the contrary, the original 'reasons for refusal' letter (dated 11th December 2001; as amended in a non-material respect by the letter of 14th May 2002) made clear that the Home Office was, on the facts of your client's case, indeed relying on the internal relocation option as one of the reasons for rejecting his claim. The same position was adopted by the Home Office Presenting Officer in the hearing before the Adjudicator. 25. Further, the departure from the general policy was plainly for rational reasons in the circumstances of your client's case. As made clear from paragraph 34 of the adjudicator's determination, the Presenting Officer submitted that it would have been appropriate for your client to have relocated to the KAZ given in particular that two of his sisters lived there. 26. In all these circumstances, it is not accepted that your client has any legitimate expectation the effect of which is that he must now be granted refugee status, and the original decision to refuse asylum of 11 December 2001 is accordingly maintained. I understand that your client's application for permission to apply for judicial review is listed for an oral hearing in the Administrative Court on 23 January. If, having considered the terms of this letter, your client decides to proceed with that hearing, I will of course be asking the Treasury Solicitor to ensure that a copy of this letter is placed before the Court."

[21]Leaving aside for the moment the actual reasons given for rejecting the legitimate expectation and abuse of power arguments raised on behalf of the claimant, some initial points can be made with regard to this letter. First, the existence of the policy since 1st October 2000 was confirmed; and its existence was not confined in point of time to applications as at February 2003, as possibly (on one reading) the previous letters of 20th February 2003 and 6th March 2003 might have indicated. Second, the general policy had "not been consistently applied" by caseworkers and presenting officers. No explanation for that was given and none ever has been. One inference is, in the absence of explanation to the contrary, that it was not consistently applied simply because caseworkers and presenting officers, or at least some of them, did not know of it. Third, no explanation was given for the failure duly to publicise this policy (assuming that it did indeed exist as from October 2000) so that immigration practitioners could be aware of it. Thus it was that even the Home Office's own representatives in the Maghdeed and Anwar cases had not known of it until shortly before the appeal hearing in March 2003.

[22]The solicitors for the claimant pressed for some explanation as to these points and for particulars as to the failure to apply the policy to the claimant. They also raised queries as to the "close ties exception" referred to in paragraphs 19 and 25 of the decision letter: although it may be noted that such letter had not stated that there was an exception to the general policy, rather the letter had simply stated that that was an argument raised by some caseworkers and presenting officers.

[23]On 22nd January 2004 the Treasury Solicitor responded, to the effect that "departure from the policy was entirely lawful on the facts of your client's case". On 23rd January 2004 Newman J, after an oral hearing, gave permission in respect of the second claim for judicial review. Thereafter the claimant's solicitors continued to press for particulars as to the previous failure to apply the policy to the claimant. They also suggested that in the circumstances the claimant might at the least be accorded discretionary or exceptional leave to remain (although I gathered, from what I was told, that that is potentially rather less beneficial than asylum status). Although these requests were not for the most part answered, it was expressly stated by letter from the Treasury Solicitor dated 2nd June 2004 that there was in fact no formal "close ties" exception to the policy. Thus the policy was now accepted (as was confirmed by counsel on behalf of the Secretary of State before me) to be of general application and without exceptions.

[24]Ultimately a further decision letter was issued on 5th August 2004. In the relevant respects that provides as follows:

"As set out in paragraphs 33-35 of our Skeleton Argument [and I add that that was a skeleton argument previously lodged on behalf of the Secretary of State], I do not accept that it is open to you in those proceedings to challenge anything other than the refusal of refugee status contained in my client's letter of 16 January 2004."

Then a little further on:

"Nonetheless, in the remainder of your letter, you suggest that my client should grant some form of discretionary leave, entirely outside the immigration rules, and in circumstances not required by the requirements of the Human Rights Act 1998, by way of 'acknowledgment for the wrong that he has [had] visited on him'. Without prejudice to the position as to the scope of these Judicial Review proceedings, my client's position in relation to such a request is clear from the Skeleton Argument filed on 18 June 2004, and in particular paragraph 59. My client recognises: (a) that there was a failure to follow the terms of the previous (but now redundant) policy that would, while Saddam Hussein's regime was still in power, have resulted in the grant of refugee status to Mr Rashid; (b) that prior to the military intervention to remove that regime, Mr Maghdeed and Mr Anwar were granted refugee status; (c) that it took several months to arrive at a final decision as to whether your client ought to be granted refugee status (during part of which time there was a suspension of decision making following the start of the military intervention in Iraq); and (d) that during those months your client would not have had the same rights as he would have enjoyed had he been granted refugee status. Nonetheless, the fact remains that given the present situation in Iraq, my client can see no basis on which your client has any present need for leave to enter/remain in this country, as a refugee or otherwise; and does not accept that he should grant such leave by way of 'compensation' for the historical position summarised above."

[25]Thus that letter, amongst other things,(a) upholds the previous refusal in the letter of 16th January 2004 and also extends such refusal to an application for discretionary leave to remain;

(b) in terms accepts that there was a failure to follow the terms of the previous "but now redundant" policy in the case of the claimant;

(c) in terms accepts that had that policy been applied whilst Saddam Hussein's regime was still in power that would have resulted in the grant of refugee status to the claimant as it did to Mr Maghdeed and Mr Anwar;

(d) states that the claimant has no present need to remain in the United Kingdom and the Secretary of State did not accept that leave should be granted as compensation for the previous failure to grant him asylum.

[26]I gave permission at the outset of the hearing before me for the claim to be reamended to challenge the decision contained in the letter of 5th August 2004.

[27]Some mention should be made of the claimant's personal position. He has put in two witness statements, dated 1st October 2003 and 28th May 2004. He explains that he lives in a hostel accommodation in Rotherham funded by the NASS. He reports on a weekly basis. He does not find life easy. He is endeavouring to learn English but, in view of his current status, he is not permitted to work. He shares accommodation with 21 other asylum seekers with one bathroom between them. Currently he shares a bedroom with another asylum seeker. He dare not leave perishable food in the refrigerator, through fear of theft, and there is little chance of any privacy. He is not allowed to travel abroad and in any event cannot visit friends in other cities in the United Kingdom for lack of money. He has experienced frustration, stress and depression, has sleeping problems and has been prescribed antidepressants for quite a while. He finds it difficult to live in the conditions in the hostel. He also says he has a great fear for his safety if returned to Iraq. Those statements as to his circumstances are not challenged. They are plausible and I see no reason to reject them. Submissions

[28]The respective cases on behalf of the claimant and of the Secretary of State were set out in very detailed written grounds and skeleton arguments and supplemented in extensive oral argument. Mr Raza Husain appeared on behalf of the claimant and Mr Grodzinski appeared on behalf of the Secretary of State. I intend no disrespect to the detail of those arguments if I attempt a summary of them in the following terms.

[29]On behalf of the claimant, Mr Husain's submissions came to this.(1) The Secretary of State concedes that the policy applied to the claimant; and had it been applied to him at the time of his original application, or even appeal to the adjudicator, he would have been granted refugee status and indefinite leave to remain as having a well-founded fear of persecution at that time.

(2) Failure so to apply such policy to the claimant without any explanation for such failure constituted an abuse of power and/or was in breach of his legitimate expectations.

(3) The subsequent change in circumstances arising from the displacement by military action of Saddam Hussein's government in Iraq cannot be used as a justification now for refusing to grant the claimant such status and leave to remain, and the Secretary of State should not be permitted to rely upon intervening acts arising from the delay occasioned by his own failure to apply the policy and to deal with the claimant's application properly. Otherwise, the claimant is left without remedy for the wrongful failure to apply a policy to him.

(4) It is important that a policy be applied fairly, consistently and equally. That will not have happened here, the more so when the precisely comparable cases of Maghdeed and Anwar, by reference to whose cases the claimant's own case had been left pending, resulted in the grant of refugee status to each of Mr Maghdeed and Mr Anwar.

[30]On behalf of the Secretary of State, Mr Grodzinski's submissions came to this.(1) It is accepted that the policy should have been applied to the claimant at the time of his application; and had it been he would have been granted refugee status and in consequence indefinite leave to remain. Those matters have since been taken into account by the Secretary of State in his recent decision letters.

(2) However, it is a general public law principle that a decision-maker may make his decision in the light of the facts and law pertaining at the date of the decision: and this is so even where such a decision is made after an earlier decision has been quashed.

(3) On the facts and circumstances as they now exist, the claimant can have no valid claim for asylum status; nor has he advanced in this claim any factual grounds for so saying. He also has not advanced any other such claims, for example, by reference to

Article 8 of the European Convention on Human Rights

. Indeed, the claimant expressly withdrew his first claim for judicial review, acknowledging the "unreality" of focusing on the historic situation and the need to recognise the intervening fundamental changes in Iraq.

(4) Consequently, the Secretary of State was justified in having regard to the present circumstances; and in view of those present circumstances it cannot be unreasonable to decline to accord the claimant refugee status or to refuse to grant him some other discretionary leave to remain.

(5) Further, and in any event, the policy has not ceased to be applied to the claimant: rather that policy has simply ceased to be relevant by reason of the changed circumstances in Iraq.

(6) There has been no misuse of power or breach of the claimant's legitimate expectations such as to render the decision of the Secretary of State invalid. Moreover, the claimant has not relied to his detriment on the existence of such policy, of which he was unaware until March 2003.

[31]It will be apparent from that summary that the divergence between the competing arguments is significantly conditioned by the perspective which each side adopts. Mr Husain's arguments primarily focus on the historic situation. Mr Grodzinski's arguments primarily focus on the current situation. Legal Principles

[32]To put some flesh on those arguments it is necessary to refer to some legal principles and to some authorities. In this field authorities are legion but counsel have sensibly restricted their citation of authority to me. Even so, I intend no disrespect if I do not refer to all the authorities that were cited to me.

[33]First, there can be no doubt but that the normal position in public law where a decision is quashed is that the decision-maker is free to reconsider the decision in the light of the material circumstances then prevailing at the time of the fresh decision: see, for example, R v Secretary of State for the Home Department, ex parte Zeqiri [2002] Imm AR 296 at paragraphs 42 and 43 of Lord Hoffmann's speech. It has also been expressly held by the Court of Appeal in the case of Ravichandran [1996] Imm AR 97 that in the case of asylum appeals the position is to be considered by reference to the circumstances prevailing at the date of the hearing in question. Mr Husain does not dispute that as a general principle. But he submits that that is only the normal rule which does permit of exceptions. Mr Grodzinski in turn does not dispute that, at all events so far a the general public law principle is concerned.

[34]To give one example of the operation of the general principle. Two asylum seekers, A and B, in comparable circumstances, arrive from the same country into the United Kingdom on the same day and claim asylum. Both cases are processed properly but, as it happens, that of A is decided four weeks before that of B. A is granted asylum. During that four-week gap there occurs a fundamental change of circumstances in the country of origin which causes the claim of B to fail. B can have no legal complaint that had his case only been processed as quickly as A's his claim would have succeeded. Take another example. C's application for asylum is refused. He appeals to an adjudicator who dismisses the appeal; but that dismissal is marred by an error of law. The Immigration Appeal Tribunal duly allows the appeal and remits the matter for a fresh hearing before another adjudicator. In the interim, circumstances change and those changed circumstances cause the second adjudicator to dismiss the appeal. Again, C can have no legal complaint that if only the original adjudicator had not made the error of law then C, on the facts and circumstances as they stood before the original adjudicator, would have succeeded. These examples of the workings of the Ravichandran principle were accepted by Mr Husain when put to him in argument.

[35]The question then is: what is the exception here, if any, which causes the operation of the Ravichandran principle to be disapplied? Mr Husain's submission is that it is to be found either in the doctrine of legitimate expectation or in the doctrine of abuse of power based on breach of policy (the emphasis in his oral argument being, and understandably so in my view, increasingly on the latter).

[36]In R v North and East Devon Health Authority, ex parte Coughlan

[2001] QB 213

the applicant, who was severely disabled, was moved from a particular hospital to another facility on an assurance that the new facility would be her home for life. Subsequently, the Health Authority proposed to close the new facility and move the applicant and other occupants elsewhere. It was held, amongst other things, that the Health Authority had not shown sufficient justification for departing from its previous promise; and the decision to close the facility in question was quashed. Some of the matters falling for decision were specific to that case but the judgment of the Court of Appeal sets out some general observations which are of relevance to the present case. Thus this, under the heading "Legitimate Expectation" is said at paragraphs 56 to 59 of the judgment:

"56. What is still the subject of some controversy is the court's role when a member of the public, as a result of a promise or other conduct, has a legitimate expectation that he will be treated in one way and the public body wishes to treat him or her in a different way. Here the starting point has to be to ask what in the circumstances the member of the public could legitimately expect. In the words of Lord Scarman in In re Findlay [1985] AC 318, 338, 'But what was their legitimate expectation?' Where there is a dispute as to this, the dispute has to be determined by the court, as happened in In re Findlay. This can involve a detailed examination of the precise terms of the promise or representation made, the circumstances in which the promise was made and the nature of the statutory or other discretion. 57. There are at least three possible outcomes. (a) The court may decide that the public authority is only required to bear in mind its previous policy or other representation, giving it the weight it things right, but no more, before deciding whether to change course. Here the court is confined to reviewing the decision on Wednesbury grounds (Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223). This has been held to be the effect of changes in policy in cases involving the early release of prisoners: see In re Findlay [1985] AC 318; R v Secretary of State for the Home Department, Ex p Hargreaves [1997] 1 WLR 906. (b) On the other hand the court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken. Here it is uncontentious that the court itself will require the opportunity for consultation to be given unless there is an overriding reason to resile from it (see Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629) in which case the court will itself judge the adequacy of the reason advanced for the change of policy, taking into account what fairness requires. (c) Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy. 58. The court having decided which of the categories is appropriate, the court's role in the case of the second and third categories is different from that in the first. In the case of the first, the court is restricted to reviewing the decision on conventional grounds. The test will be rationality and whether the public body has given proper weight to the implications of not fulfilling the promise. In the case of the second category the court's task is the conventional one of determining whether the decision was procedurally fair. In the case of the third, the court has when necessary to determine whether there is a sufficient overriding interest to justify a departure from what has been previously promised. 59. In many cases the difficult task will be to decide into which category the decision should be allotted. In what is still a developing field of law, attention will have to be given to what it is in the first category of case which limits the applicant's legitimate expectation (in Lord Scarman's words in In re Findlay [1985] AC 318) to an expectation that whatever policy is in force at the time will be applied to him. As to the second and third categories, the difficulty of segregating the procedural from the substantive is illustrated by the line of cases arising out of decisions of justices not to commit a defendant to the Crown Court for sentence, or assurances given to a defendant by the court: here to resile from such a decision or assurance may involve the breach of legitimate expectation: see R v Grice [1977] 66 Cr App R 167; cf R v Reilly [1982] QB 1208, R v Dover Magistrates' Court, Ex p Pamment [1994] 15 Cr App R(S) 778, 782. No attempt is made in those cases, rightly in our view, to draw the distinction. Nevertheless, most cases of an enforceable expectation of a substantive benefit (the third category) are likely in the nature of things to be cases where the expectation is confined to one person or a few people, giving the promise or representation the character of a contract. We recognise that the courts' role in relation to the third category is still controversial; but, as we hope to show, it is now clarified by authority."

[37]The decision in Coughlan goes on to make clear that the court is there to ensure that the power to make and alter policy has not been abused by unfairly frustrating legitimate individual expectations; to state that abuses of power may take many forms; and to state that considerations of fairness must include considerations of fairness of outcome. The Court of Appeal also stressed that labels were not important. Indeed, by reference to the circumstances of the case before it, the Court of Appeal spoke compendiously of "the unwarranted frustration of a legitimate expectation and thus an abuse of power or a failure of substantive fairness": (see paragraph 76).

[38]In R v Secretary of State for Education, ex parte Begbie

[2000] 1 WLR 1115

the then main opposition party published undertakings that its policy of abolishing a state-funded assisted school places scheme would not be applied so as to affect those whose children already received funding under the scheme. After the election the party nevertheless declined to continue funding to the applicant, who had been receiving such funding, after a stipulated period. That decision was upheld, primarily on the basis that otherwise the relevant statute would have been contravened. But in considering the question of legitimate expectation Peter Gibson LJ, at page 1124, stated that it would be wrong to understate the significance of reliance in this area of the law and that it would be "very much the exception, rather than the rule" that detrimental reliance will not be present when the court found unfairness in the defeating of a legitimate expectation. He also at a later stage observed that where a public authority has made a mistake the court would be slow to fix the public authority permanently with the consequences of the mistake. It was further found in that case, on the facts, that no representation had been made to Mrs Begbie on which she had relied to her detriment.

[39]In the course of his concurring judgment Laws LJ said at page 1131, in the context of what he called the "macro political field" that:

"... true abuse of power is less likely to be found, since within it changes of policy, fuelled by broad conceptions of the public interest, may more readily be accepted as taking precedence over the interests of groups which enjoyed expectations generated by an earlier policy."

On the facts of that case the misrepresentation of the policy was corrected and the correction was not abusive, notwithstanding the bitter disappointment occasioned, in the absence of any detrimental reliance on the part of Mrs Begbie.

[40]In the course of his concurring judgment, Sedley LJ observed at page 1133:

"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 ..."

[41]I was also referred to the case of R v Newham London Borough Council, ex parte Bibi

[2003] 1 WLR 237

. In that case the local authority, acting under an erroneous view of the law, promised the applicants legally secure accommodation within a certain time span. They failed thereafter so to provide such accommodation. It was held that the applicants had a legitimate expectation that they would be provided with secure accommodation. In the course of giving the judgment of the court, Schiemann LJ said this:

"19. In all legitimate expectation cases, whether substantive or procedural, three practical questions arise. The first question is to what has the public authority, whether by practice or by promise, committed itself; the second is whether the authority has acted or proposes to act unlawfully in relation to its commitment; the third is what the court should do. This formulation of the questions is we think a more helpful way of approaching the problems in this type of case than the fivefold question adopted during argument ... 22. Two problems face a court in answering these questions. The first is to find one or more measuring rods by which it can be objectively determined whether a certain action or inaction is an abuse of power. The second is what order to make once an abuse of power has been discerned -- can the court come to a substantive decision itself or should it send the matter back to the decision taker to decide afresh according to law?"

[42]Schiemann LJ went on to quote with approval an observation to the effect that categories of fairness are not closed and precedent should not be regarded as a straitjacket. He then said this:

"29. In the light of this, we respectfully adopt what Professor Craig has proposed in this regard in Craig, Administrative Law, 4th ed, at p 619: 'Detrimental reliance will normally be required in order for the claimant to show that it would be unlawful to go back on a representation. This is in accord with policy, since if the individual has suffered no hardship there is no reason based on legal certainty to hold the agency to its representation. It should not, however, be necessary to show any monetary loss, or anything equivalent thereto.' 30. But he gives the following instance of a case where reliance is not essential: 'Where an agency seeks to depart from an established policy in relation to a particular person detrimental reliance should not be required. Consistency of treatment and equality are at stake in such cases, and these values should be protected irrespective of whether there has been any reliance as such.' 31. In our judgment the significance of reliance and of consequent detriment is factual, not legal. In Begbie's case both aspects were in the event critical: there had been no true reliance on the misrepresentation of policy and therefore no detriment suffered specifically in consequence of it. In a strong case, no doubt, there will be both reliance and detriment; but it does not follow that reliance (that is, credence) without measurable detriment cannot render it unfair to thwart a legitimate expectation."

[43]At a later stage of the judgment, dealing with the issue of detrimental reliance, Schiemann LJ said this:

"52. It was submitted that neither applicant has changed his or her position on the strength of the expectation and therefore no weight ought to be given to the fact that the promises have not been fulfilled. We have already said that this factor does not rank as a legal inhibition on giving effect to the legitimate expectation. But what weight ought to be given to the lack of change of position? 53. The fact that someone has not changed his position after a promise has been made to him does not mean that he has not relied on the promise. An actor in a play where another actor points a gun at him may refrain from changing his position just because he has been given a promise that the gun only contains blanks. 54. A refugee such as Mr Al-Nashed might, had he been told the true situation, have gone to one of the bodies which assist refugees for advice as to where in England and Wales he might have better prospects; or have tried to find the deposit on an assured tenancy, with the possibility thereafter of housing benefit to help with the rent. 55. The present case is one of reliance without concrete detriment. We use this phrase because there is moral detriment, which should not be dismissed lightly, in the prolonged disappointment which has ensued; and potential detriment in the deflection of the possibility, for a refugee family, of seeking at the start to settle somewhere in the United Kingdom where secure housing was less hard to come by. In our view these things matter in public law, even though they might not found an estoppel or actionable misrepresentation in private law, because they go to fairness and through fairness to possible abuse of power. To disregard the legitimate expectation because no concrete detriment can be shown would be to place the weakest in society at a particular disadvantage. It would mean that those who have a choice and the means to exercise it in reliance on some official practice or promise would gain a legal toehold inaccessible to those who, lacking any means of escape, are compelled simply to place their trust in what has been represented to them."

[44]In my view, these authorities show that detrimental reliance is not a necessary requirement, or legal precondition, to be established in this context. There may be cases where an unwarranted departure from an established policy will be quashed without more. That is just because in such a case considerations of fairness and consistency and good administration may require the even-handed application of a stated policy and no further justification for the court's intervention is called for. Otherwise there would be an inducement to arbitrariness. But detrimental reliance is not irrelevant. On the contrary, it is ordinarily likely to be of great relevance: just because such a factor will feed into the consideration of the issue of whether a breach of legitimate expectation or departure from policy is of sufficient unfairness to require the intervention of the court by the grant of an appropriate judicial remedy. Disposition

[45]In my judgment, having regard to the facts of this particular case, the decision communicated by the two letters on behalf of the Secretary of State of 16th January 2004 and 5th August 2004 to refuse the claimant refugee status, and to refuse to grant him indefinite leave to remain, cannot stand. It seems to me that in the circumstances of this case, such decisions connote such a degree of unfairness as to amount to a misuse -- a word I rather prefer to "abuse" -- of policy as to require the intervention of the court.

[46]My reasons are as follows.

[47]First, and foremost, the only reason why the claimant finds himself in this present position is because of the wrongful failure on the part of those acting for the Secretary of State to apply the policy to him as it should have been applied at the time of his initial application. Had it been, as it should have been, he would have been granted refugee status and, in consequence, indefinite leave to remain. In my view such a scenario opens up an exceptional feature justifying, potentially, a departure from the Ravichandran principle. Were it otherwise, the Secretary of State would, as it were, be profiting from his own wrong in failing to apply at the relevant times the policy, and the claimant himself would be left without proper redress for that failure on the part of the Secretary of State.

[48]I acknowledge Mr Grodzinski's point that as matters now stand the claimant is, on the current evidence in these proceedings, not now someone in need of asylum status in view of the change of situation in Iraq. That, he says, contrasts with those such as Mr Bibi and Mrs Begbie, who did continue to have a need for secure accommodation in the one case and a need for further education funding in the other case. But the short answer to that, in my view, is that the Secretary of State cannot in the circumstances of this case be heard to rely on that as in itself a reason for refusing refugee status and for refusing indefinite leave to remain. He cannot be heard to do so just because of his own unwarranted error in failing to apply the policy in the first place as he should have done. The Secretary of State is free to correct his error. But he is not free to do so in such a way as to deprive the claimant of the benefit of the policy which otherwise he would have had, had there been no such error in the first place.

[49]Mr Grodzinski also submits that there has been no change in policy such as to lead to a breach of the claimant's legitimate expectations. He says that the policy was not to the effect that all Kurds, whatever the conditions in Iraq, would always be granted refugee status. Rather, he says, the policy was much narrower: viz that internal relocation would not, in the case of an Iraqi Kurd, be advanced as a reason to refuse a claim for refugee status. Mr Grodzinski accepted, as I have already said, that the policy was without exceptions; but he went on to submit that the Secretary of State has not departed from that policy at all. It is simply that that policy, if still applied, is devoid of substance and has become otiose because of the subsequent change of situation in Iraq. But that seems to me to be simply no more than a variation on Mr Grodzinski's original theme, and also seems to me to be a triumph of form over substance, and I reject it for the like reasons.

[50]Mr Grodzinski did also submit that it was contrary to public policy that the claimant should be accorded refugee status when he is not now, on the current evidence, entitled to it. But in my view there is a greater countervailing public interest: that an unwarranted failure to apply a policy at the relevant time should not be allowed to be utilised in the light of a subsequent change of circumstances to deprive an individual of the asylum benefit that he should have been entitled to had the policy been properly applied at the relevant time.

[51]Mr Grodzinski then went on to submit that the claimant could in any event have no real complaint because he was not aware of the policy in question and further, and in consequence, he could not have relied, and did not rely, on it to his detriment. In my judgment there are quite a few answers to that particular point. First, the claimant's lack of awareness of the policy was through absolutely no fault of his own. It was because of the Home Office and its failure to draw attention to the policy that this was not noted; and that indeed was precisely the situation in Maghdeed and Anwar. Secondly, lack of awareness in this field is not of itself necessarily a conclusive consideration. Thus in the context of the doctrine of legitimate expectation the following observation was made by Hobhouse LJ in the case of R v Secretary of State for the Home Department, ex parte Ahmed and Patel [1998] INLR 570 at page 591:

"The principle of legitimate expectation in English law is a principle of fairness in the decision-making process. It differs from the doctrine of estoppel in private law. In the present context, it is a wholly objective concept and is not based upon any actual state of knowledge of individual immigrants or would-be immigrants; indeed, if it had to be based upon a subjective understanding of the content of these Conventions and their legal effect in English law, there would be no basis for the application of the principle in cases such as these. However, the application of the principle must be based upon some objectively identifiable legitimate expectation as to how decisions will be made and discretions exercised."

Statements to similar effect are expressed in ex parte Bibi by Schiemann LJ, and in particular in his approval of the passage from Professor Craig's book in the context of unwarranted departures from established policy. That is just because consistency of treatment and equality and considerations of good administration are at stake. Thirdly, although the claimant did not know of the policy, he was entitled to assume -- indeed, as I see it, he had the legitimate expectation -- that whatever applicable policy was in existence at the time would be applied to him. But that did not happen to him when he made his original application.

[52]As to the question of detriment -- not a legal requirement but potentially factually relevant -- I do not accept Mr Grodzinski's submission that there has been absolutely no relevant detriment. The evidence points plainly to there here being a significant element of what Schiemann LJ in Bibi called "moral detriment": which, as Schiemann LJ observed, should not "be dismissed lightly". In my view I am entitled to, and should, take this factor into account in this case in assessing the overall consideration of fairness. Likewise, in R v Secretary of State for the Home Department, ex parte Zeqiri [2001] Imm AR 42 Lord Phillips of Matravers MR at paragraph 68 of his judgment indicated that prolonged periods of uncertainty leading to mental stress, and the restrictions on benefits, were material factors to be taken into account on the issue of fairness in that case. Although the decision of the Court of Appeal was reversed on the facts in the House of Lords those particular comments in my view remain apposite to the present case.

[53]I also think that I should take into account the position with regard to the Maghdeed and Anwar cases. It will be recalled that in the case of this claimant his proceedings were deferred until after the Court of Appeal had decided the other two cases. In the ordinary way, where the decision in one case is deferred pending a decision in another case, that will not give rise to a legitimate expectation that the decision in that other case will be determinative and acted upon by the other side: not least because the common issue raised may well (and as will be appreciated by all concerned) not be the only one raised, and because the actual facts of each case may well be different: as pointed out by Scott Baker J in R v Secretary of State for the Home Department, ex parte Gashi & Kiche 31st July 2001

[2001] EWHC Admin 622

. In the present case, however, I stress that it is now expressly conceded on behalf of the Secretary of State that the cases of Maghdeed and Anwar were precisely on all fours with that of the claimant himself. The only difference acknowledged -- and of course Mr Grodzinski has said that it is the crucial difference -- is that the policy was then applied to Mr Maghdeed and Mr Anwar when their cases were reconsidered on 6th March 2003, before the war; whereas in the claimant's case, as he stresses, the reconsidered decision only came after the war.

[54]As I see it, the claimant would have had an expectation that his case would be determined precisely in accordance with the outcome of the cases of Maghdeed and Anwar. I have doubts, however, if that amounts to a legitimate expectation in the sense that phrase has in public law. This is because the Secretary of State at the time made no clear and unequivocal representation, so far as I can see, that come what may the outcome in the case of the claimant would be the same as that in the case of Mr Maghdeed and Mr Anwar. And after the policy was announced in March 2003, and the decision to grant refugee status to Mr Maghdeed and Mr Anwar made known, the only express representation made by the Home Office at that time was simply that the claimant's case would be put back before a case officer for reconsideration.

[55]Even so, the point in my view remains of at least some relevance, given the concession now made that the claimant's case was in fact on all fours with Mr Maghdeed's and Mr Anwar's: essentially because it illustrates the arbitrary consequences in this very case of the Secretary of State's failure to apply the policy to the claimant as he should have done. Had, for example, the claimant's case been chosen as a test case rather than Mr Maghdeed's, he, the claimant, would have been accorded refugee status and Mr Maghdeed would not.

[56]Further, after the existence of the policy was publicly disclosed by the Home Office's letter of 20th February 2003 and confirmed in the letters of 6th March 2003 to the solicitors of Mr Maghdeed and Mr Anwar, there could, as can now be seen, have been no justification for withholding refugee status from the claimant also: again, just because (as is conceded) his case was precisely on all fours with theirs. The only reason that did not happen was because of the fact that -- for unidentified reasons -- the caseworker had not reconsidered his case by the time that, shortly thereafter, the war in Iraq started. I accept that the operation of the Ravichandran principle is capable of giving rise to what may perhaps seem to be hard results, without any question of a breach of legitimate expectation arising. But matters seem to me to stand on an altogether different footing when such result is to be traced back to the Secretary of State's own unexplained and unjustified previous failure to apply his own policy to the claimant.

[57]The point seems to me indeed to be a good example of how an unwarranted failure to adhere to an established policy can in consequence give rise to inequality of treatment and of outcome to the affected class. It is not attractive that on the Secretary of State's argument a premium, so to speak, attaches to failure either to publicise or to apply the policy in question.

[58]I was referred by counsel to a number of first instance cases where, so it was said, a similar point arose.

[59]The first was a decision of Stanley Burnton J in ex parte Nadarajah 2nd December 2002

[2002] EWHC Admin 2595

, and from which decision, I gather, an appeal on these particular points still remains pending. That was a case involving the refusal of the Secretary of State to consider an application for asylum domestically, and also involving certification under section 72(2)(a) of the Immigration and Asylum Act 1999: a very different scenario to the present case. One issue was whether a newly introduced policy of the Secretary of State could properly be applied to an applicant whose case had originally been rejected under the application of a previous policy as interpreted by the Secretary of State. Stanley Burnton J decided that on the facts of that case the applicant had no right to have his claim reconsidered under the previous policy. Part of his reasoning was that one factor to be taken into account was that the Secretary of State in any event might have excluded the applicant from in-country consideration even had he correctly interpreted the previous policy. I can see that that particular point might be a point of some debate. After all, Mr Nadarajah was thereby deprived of the chance of arguing that had the Secretary of State correctly interpreted the old policy he might not have excluded him. But, be that as it may, the position in that case is quite different from the present case: not least because here the claimant, as is conceded, would have been granted refugee status had the policy been applied at the time of his original application. Moreover, Stanley Burnton J's observations were expressly made by reference to the facts of the case before him and, further, his comments were made in the context of deciding whether or not it was appropriate to grant a remedy in the form of a quashing order. In such circumstances I gain no real assistance from that decision.

[60]I was taken at some length through the Court of Appeal and House of Lords decisions in the case of ex parte Zeqiri to which I have already referred. However, that was not a case of departure from policy; and, further, it was ultimately decided by the House of Lords that, although it would be unfair of the Secretary of State not to treat like cases alike in the sense of discriminating against someone on inadequate grounds, the conduct in question which was relied on in that case amounted to no more than an ex gratia concession in one particular matter which could not give rise to a sufficiently clear representation capable of grounding a legitimate expectation in favour of others involved in related matters.

[61]I gained no assistance from the citation to me of the decision of Jackson J in ex parte Kiwanuka 19th September 2002

[2002] EWHC Admin 2013

. That was a case concerning availability of another remedy; and the passage in question to which I was referred (paragraph 31(4) of the judgment) in any event makes no reference to the doctrine of legitimate expectation or breach of policy at all.

[62]Rather more in point is the decision of Mr Jack Beatson QC, as he then was, in the case of ex parte Joseph 19th April 2002

[2002] EWHC Admin 758

. In that case there was a policy at the time that "those Sierra Leoneans who do not qualify for asylum will normally be granted four years' exceptional leave". The applicant applied for asylum and, in the alternative, for exceptional leave to remain. He was refused, in part on erroneous grounds. Subsequently, the policy as to exceptional leave to remain was ended in the light of the improving situation in Sierra Leone. One of the arguments raised on behalf of the applicant was that the applicant had a legitimate expectation that he would be granted exceptional leave to remain; that it had been unlawful for the Secretary of State to disregard that policy in his original decision; and that it would be unfair for the Secretary of State thereafter to apply the new policy. The arguments on behalf of counsel appearing in that case, as summarised in paragraph 17 of the judgment, to a significant extent mirror Mr Husain's arguments before me in the present case. I also might add that the arguments of counsel of the Secretary of State in that case (in particular as summarised in paragraph 21 of the judgment) to a considerable extent mirror the arguments of Mr Grodzinski before me in the present case.

[63]The claim of Mr Joseph failed. First, it was held that on the facts of that case there was no unqualified practice or promise at all (that being so, no doubt, because, among other reasons, the policy in question had been qualified by the use of the word "normally"). That is to be contrasted to the present case where the policy was, as is now conceded, of general and unqualified application. Secondly, in the case of Joseph no legitimate expectation as to exceptional leave to remain arose: since the grant of exceptional leave to remain predicated a valid refusal of asylum, and Mr Joseph had in fact himself challenged the validity of the refusal of asylum. That also is not a consideration which applies to the principal argument in the present case.

[64]But a third aspect of Mr Beatson's reasoning was to ask whether it was legitimate to apply the changed policy to Mr Joseph. The judge held -- in my view, uncontroversially -- that prima facie (my own emphasis added) the fresh decision was to be made on the facts and the policies existing at the time of the fresh decision. In that case it was found that there was no detrimental reliance on the part of Mr Joseph in the sense of alteration of position in reliance on the flawed original decision. But the judge went on to consider the position on the basis that Mr Joseph had failed to prove that, but for the delay occasioned by the original flawed decision, the decision would have been taken, and in his favour, before the change of policy: and, as

the judge concluded:

"Accordingly, I do not consider that detriment has been shown in the present case."

It is interesting to note that Mr Beatson seems to have regarded such a consideration, had it been proved -- namely, the loss of the opportunity to prove the entitlement to exceptional leave to remain in the relevant intervening period -- as capable of amounting to requisite "detriment".

[65]I do not, however, propose to refer to various other authorities or to other nuances of the legal arguments advanced before me. In the circumstances here it seems to me that the position justifies and requires, by way of exception, a departure from the principle reflected in the Ravichandran case. It will be clear from what I have already said that I take the view that the combination of(a) the unwarranted and unjustified failure on the part of the Secretary of State to apply his policy to the claimant at the time of his original asylum application when, had it been so applied, he would have been granted refugee status, and

(b) the differentiation in treatment and consequent outcome accorded to Mr Maghdeed and Mr Anwar as compared to the claimant, and

(c) the intervening moral detriment occasioned to the claimant, do, when all the factors are taken together, evince such a degree of unfairness as to amount to a misuse of power and to require the court's intervention.

[66]I add that if, as counsel at some stages in their arguments suggested, the right analysis is -- although, as will be gathered, for myself I doubt that it is quite the right analysis -- that in making his latest decisions in 2004 the Secretary of State was required to weigh the changed situation in Iraq after the overthrow of Saddam Hussein's government against the previous failure to apply the policy to the claimant and to the history of this entire matter vis-a-vis the claimant, then in my view, given the circumstances, the only decision that could properly have been reached was at least to accord indefinite leave to remain to the claimant.

[67]I would also add that, generally speaking, when an allegation of wrongful breach of policy on the part of the public authority is made, the first step normally will be to examine the terms of the policy itself and to consider, for example, whether the policy itself admits of exceptions and room for departure. The second step is (where there has been a change of policy or a non-application of the policy) to ask the question: why? In the ordinary case, no doubt, a sufficient justification will be given. In the present case, however, no such justification is given. One is simply left with the concession that there was such a failure and the inference that the existence of the policy had not been widely disseminated within the Home Office and, in consequence, that the caseworkers, presenting officers and lawyers dealing on behalf of the Secretary of State, with the claimant's application acted in ignorance of there being such a policy. Mr Grodzinski accepted that he would have had difficulty in mounting his arguments had there been bad faith on the part of the Home Office. In the present case Mr Husain disclaims any suggestion of bad faith. Even so, it is worth bearing in mind, I think, as a consideration in cases of this kind, that where there has been a failure to apply an established policy -- whether such failure was deliberate or whether it was inadvertent -- the consequence, so far as the individual affected is concerned, is the same.

[68]In view of my conclusion, I need not deal further with Mr Husain's separate arguments to the effect that even if I were against him on his principal arguments, still there were grounds for challenging the decision letter of 5th August 2004 as unreasonable and flawed. He acknowledged that he might have had an uphill task in that regard (and my preliminary view was to agree with him on that). But since I am with him on his principal arguments, I need not say more. Likewise, I need not deal further with the arguments insofar as they sought to differentiate between the claim for refugee status from the claim to some other form of discretionary leave to remain. Conclusion

[69]In the result I conclude that the circumstances of this case are such as to require a departure from the application of the Ravichandran principle. I quash the decision letters of 16th January 2004 and of 5th August 2004 for the reasons I have sought to give. It will be apparent from this judgment that I do not consider it appropriate to remit the matter to the Secretary of State for further decision. Rather, in the circumstances of this case, I consider that the only proper decision that can be reached is to accord the claimant refugee status and the concomitant indefinite leave to remain. I am not inclined to make a mandatory order against the Secretary of State as Mr Husain has asked; but I am prepared to grant the appropriate declaratory relief for that purpose.

[70]MR HUSAIN: My Lord, on behalf of Mr Grodzinski and I, can I express our gratitude for the comprehensive nature of my Lord's judgment and the speed with which my Lord has arrived at it. My Lord, there remains a question of certain typographical errors or minor errors. I think in summarising my submissions my Lord referred to the claimant's own delay.

[71]MR JUSTICE DAVIS: I did, and I noted that about 20 seconds after I said it. When I correct the transcript I hope I will pick that up.

[72]MR HUSAIN: Secondly, when summarising the Ravichandran principle, my Lord referred to the date of decision. That might be misleading; I do not know. On one view one can see precisely what my Lord was saying, but in the generality the Ravichandran principle is referred to, the material date being the date of the hearing before the appellant authority. It is a matter for my Lord of course.

[73]MR JUSTICE DAVIS: Of course. There sometimes is a gap, of course, between issuing a decision and the hearing.

[74]MR HUSAIN: As far as Nadarajah is concerned, my Lord may want to make it clear that an appeal is pending against Stanley Burnton J's decision on that point. On the other two points, appeals have been determined by the Court of Appeal. Again, that is a matter for my Lord.

[75]Finally, my Lord referred to the case of Kiwanuku [sic]; it is actually Kiwanuka.

[76]MR JUSTICE DAVIS: Normally the transcribers pick these errors up for me. Thank you very much for that.

[77]MR HUSAIN: My Lord, I ask for my costs and also a detailed assessment of public funding.

[78]MR GRODZINSKI: I cannot resist my learned friend's application for costs.

MR JUSTICE DAVIS: Yes, I will make those orders on costs.

[80]MR GRODZINSKI: Notwithstanding the application I am about to make for leave to appeal, can I also thank your Lordship for the careful and comprehensive judgment you have given.

[81]My Lord, I have four grounds for seeking leave to appeal from your Lordship without prejudice to those which I may otherwise seek to advance if refused.

[82]MR JUSTICE DAVIS: Absolutely. You have had to consider this on the hoof; I do understand.

[83]MR GRODZINSKI: The first is this. Your Lordship referred to there being an exception to the Ravichandran principle. Leave aside whether one has to consider the matter at the date of the decision or the date of the hearing -- that is probably neither here nor there -- but my Lord, your Lordship also referred in the course of your judgment to my having conceded that there was an exception to the Ravichandran principle. My Lord, I did concede that there was a scope for exception to the general public law principle as to taking into account the fact of the date of the decision made after an earlier decision has been quashed. I did not accept that there was an exception to the parallel immigration principle as set out in Ravichandran, and I think my learned friend accepted in the course of argument -- indeed, said in the course of amount -- that the Ravichandran principle and the public law principle were actually quite distinct, which is why he accepted in the course of argument that were the matter to come back before a second immigration appeal adjudicator, he could not raise this point. He said the only reason he had to do it --

MR JUSTICE DAVIS: Because it is a policy matter.

[85]MR GRODZINSKI: Precisely so, my Lord. With respect, several aspects of your Lordship's judgment do proceed on the basis there are exceptions to the Ravichandran principle and, in my respectful submission, that is wrong. That is my first ground of appeal.

[86]MR JUSTICE DAVIS: It is not as much an exception to the Ravichandran principle but what I am really saying is there are circumstances whereby parties are not allowed to invoke the ordinary application of the Ravichandran principle. That is the point, is it not?

[87]MR GRODZINSKI: My Lord, I would respectfully differ.

[88]MR JUSTICE DAVIS: You say it comes to the same thing. There are no circumstances where the Ravichandran principle cannot give way.

[89]MR GRODZINSKI: Certainly the Ravichandran always has to be applied in the immigration context. In my submission --

[90]MR JUSTICE DAVIS: That is not the point. The question is whether the Secretary of State can be heard to try and apply it.

[91]MR GRODZINSKI: My Lord has my submission.

[92]MR JUSTICE DAVIS: I must not debate this with you because you are simply saying this merits the Court of Appeal's consideration.

[93]MR GRODZINSKI: That is my first point.

MR JUSTICE DAVIS: All right.

[95]MR GRODZINSKI: The second point really arises out of the first, which is that it is a -- with respect -- highly controversial decision to require the Secretary of State to grant to the claimant refugee status, a concept derived from an international treaty, in circumstances where that treaty itself does not require it. I do not for a moment pretend to have a comprehensive knowledge of all the cases -- probably nowhere near as comprehensive as my learned friend -- but as far as I am aware, this is the first time that a court has ordered refugee status to be granted when there is no need for it.

[96]MR JUSTICE DAVIS: Mr Rashid, I do not supposes, cares tuppence about that. What he wants is indefinite leave to remain. For example, would his benefits and employment situation change, for example, if he were accorded refugee status?

[97]MR GRODZINSKI: As opposed to normal indefinite leave to remain?

[98]MR JUSTICE DAVIS: Yes. Might that not have an impact upon what he might be entitled to get?

[99]MR GRODZINSKI: Can I take instructions for a moment before my learned friend replies?

MR JUSTICE DAVIS: Yes, yes, of course.

[101]MR GRODZINSKI: We think -- sorry not to be more informative, and maybe my learned friend will be able to assist -- there are additional benefits to be conferred by the grant of refugee status as opposed to indefinite leave to remain. My Lord, that is my second point.

[102]My third point is your Lordship's reliance upon moral detriment as being an important factor in this case. My Lord, in my submission, a proper reading of the decision in Bibi, particularly when coupled with the decision of Lord Hoffman in Zeqiri, is such that moral detriment, without actual or potential detriment, is not a factor to be given any significant weight.

[103]MR JUSTICE DAVIS: What are you saying? What I said was I was entitled to take it into account. Are you saying it should not be accorded any weight at all?

[104]MR GRODZINSKI: Where it is moral detriment as opposed to actual or potential, my Lord, yes I do say that. I go that far, and I go that far because of what Lord Hoffman said.

[105]MR JUSTICE DAVIS: You say that Bibi might have to be looked at again in the light of what Lord Hoffman has said in Zeqiri?

[106]MR GRODZINSKI: My Lord, yes.

MR JUSTICE DAVIS: Indeed, the whole issue of moral detriment might benefit from --

[108]MR GRODZINSKI: My Lord, yes. I cannot recall which case came first in time. Bibi was first.

MR JUSTICE DAVIS: Bibi was before the House of Lords.

[110]MR GRODZINSKI: My Lord, yes. I do not want to reargue the point, but can I just take your Lordship to Zeqiri just for one second in the House of Lords at tab 8.

MR JUSTICE DAVIS: Yes.

[112]MR GRODZINSKI: At page 311, your Lordship will see at paragraph 58 Lord Hoffman deals with the grounds advanced by the appellant in relation to unfairness, and I say that there he is grappling with the factors that Lord Phillips Master of the Rolls considered amounted to what might be called moral detriment and was finding that they were not enough. That is my next ground of appeal.

[113]My final ground of appeal is this: that whether or not there may be exceptions to the general public law principle about being allowed to take into account factors relevant at the time of the second decision, the first having been quashed, I certainly accepted there were exceptions to the general principle that you are allowed to correct earlier mistakes. But whether there are exceptions or not to the ability to take a second decision based on the factors pertaining at the time, none of the Court of Appeal decisions even have considered -- and I do not think my learned friend or I were able to alight upon a case where any decision was taken where the fundamental nature of the circumstances that gave rise to the policy in the first place, and to the need as reflected in the policy, had completely disappeared by the time of the second decision, the retaken decision. Neither Bibi nor Begbie, nor any other case, so on one view going to the Court of Appeal may not resolve that difficulty. It might have to go further.

[114]MR JUSTICE DAVIS: That is just a variation on your point that Mr Bibi and Mr Begbie each had a continuing requirement.

[115]MR GRODZINSKI: That is my point. But it is an interesting and important point, my Lord.

[116]MR JUSTICE DAVIS: But what I am -- I am not saying more interested in but as interested in: can you tell me if other cases may be affected by what I have decided in this case?

[117]MR GRODZINSKI: I can do no more than --

[118]MR JUSTICE DAVIS: I know that nothing else that was stacked up, as has it turned out, is still extant.

[119]MR GRODZINSKI: Certainly in terms of general principles of public law, your Lordship's judgment is, with respect, very significant and I would say highly controversial. From that perspective --

MR JUSTICE DAVIS: You would, would you not?

[121]MR GRODZINSKI: I would. But its significance is not only in the field of immigration, but it is significant in the field of public law generally, and one would expect it to be cited by most of the textbooks in this area because it is an important decision.

[122]MR JUSTICE DAVIS: It is considered significant that a judge thinks that the Secretary of State should not get away with departing for no reason from a policy. That is what it comes to. That is significant in public law, is it?

[123]MR GRODZINSKI: What is significant in public law is(a) to what extent moral detriment is enough, and

(b) to what extent --

[124]MR JUSTICE DAVIS: You say that the workings of the Ravichandran principle in this particular context --

[125]MR GRODZINSKI: Yes, and then, in a public law context, the extent to which a wholesale change of circumstances may be enough to vitiate what otherwise would be unfair, and that is very significant.

[126]MR JUSTICE DAVIS: Right. What do you want to say about permission to appeal?

[127]MR HUSAIN: I would resist your Lordship granting permission in the strongest possible terms. This is a matter which my Lord, if my learned friend's points are so strong and my Lord's decision is so controversial -- I will come back to the use of that word in a moment -- my learned friend ought to be seeking permission from the Court of Appeal itself following the normal rule.

[128]As far as the first point, the Ravichandran principle has no exception. I am sorry, but that is one way of starting it again, because what my Lord is really saying is that the public law principle of contemporaneity in decision-making admits of exceptions. What I have said in reply was that the Ravichandran principle, as it applies to the appellate authority, admits of no distinction. Hence my submission in response to my Lord's important questioning. Of course, we are not in the appellate authority here, there is an issue of public law, and when my Lord is taking about an exception to the Ravichandran principle, what he is talking about -- if one may say so, with respect -- is exceptions to the contemporaneity principle as reflected in the Zeqiri case, for example. That is the first point. For my learned friend to say Mr Husain accepted that the Ravichandran principle admitted of no exceptions, and here my Lord has found an exception, is simply form over substance.

[129]Secondly, if my Lord's decision is so controversial on the point that refugee status ought to be granted to this particular individual in circumstances where the Treaty obligation does not allow it, then his solicitors' letter which in terms said that as a matter of law the Secretary of State's (inaudible) in the management of landmark cases was that refugee status ought not to be granted, but as a matter of policy it would, would be equally controversial and rather surprising in its controversy.

[130]So, my Lord, we say there is no controversy here at all. This case is about equal treatment, as my Lord has indicated in his very full judgment. On the question of refugee status, I take it my learned friend's response indicates that there is an important benefit which refugee status confers, and I do not think he is seeking to persuade my Lord to alter the form of the declaration my Lord is proposing to give.

[131]Thirdly, on the question of moral detriment, this is important because my learned friend alights again on Lord Hoffman in Zeqiri. As my Lord said in his judgment, the point about Zeqiri in the House of Lords was that the predicate, the gateway which allows in considerations of detriment was overset by Lord Hoffman. There was no expectation. So it has never been my case that my Lord should just conduct a free-ranging inquiry, take out any question of expectation or, for that matter, policy from the analysis, and just consider whether it is generally unfair.

[132]That is what Lord Hoffman was doing. So we say if my learned friend wants to challenge Bibi, and wants to challenge Kray (?) then the appropriate forum in which to do that is to seek permission of the Court of Appeal. My Lord is simply applying following the case law adopting a leading academic in the field.

[133]Lastly, my learned friend said that there was no case to which we could point which spoke to the facts of this case and of course my Lord has again looked at the Joseph case and indicated that Mr Jack Beatson QC, as he then was, appears to reason that had there been the loss of an opportunity to have the policy (inaudible) that may well have been sufficient in the facts of that case, notwithstanding the change in circumstances.

[134]My Lord, we resist your Lordship's grant of permission.

[135]MR JUSTICE DAVIS: Mr Grodzinski, although I indicated that this was an unusual case, and although I made clear that my decision is a decision on the particular facts of this case, it may be that there are wider considerations arising out of this and I do grant you permission to appeal.

[136]MR GRODZINSKI: I am very grateful. In light of your Lordship's grant, could I ask for an extension of time for formulating the precise grounds of appeal for this reason. We have all done our best to take a detailed minute of the judgment --

[137]MR JUSTICE DAVIS: I understand that. Just a moment.

[138]MR GRODZINSKI: Could I ask for 14 days from the date of the perfection of your Lordship's judgment? Would that be all right?

MR JUSTICE DAVIS: I am just a little reluctant to keep it open-ended.

[140]MR GRODZINSKI: It is 14 days usually.

[141]MR JUSTICE DAVIS: I will give you an extension to 28 days. If you have a problem on that you can apply again. I cannot just overlook the fact that Mr Rashid now has continuing uncertainty hanging over his head. I think I am going to impose a time limit, and if you are in trouble on the transcript then I might extend it.

[142]MR GRODZINSKI: Can I take instructions just for one moment on that last point?

MR JUSTICE DAVIS: Yes.

[144]MR GRODZINSKI: I appreciate your Lordship's point. If the matter (inaudible) change on any aspect.

[145]MR JUSTICE DAVIS: Do you object to an extension of time to 28 days? This judgment is quite a mouthful and it is a lot.

[146]MR HUSAIN: If the positions were reversed.

[147]MR JUSTICE DAVIS: I will say 28 days, and if you really find that is not enough you might have to work hard to persuade me to extend time. You have after all got an (inaudible) on which you can start preparing your grounds. Can I leave it to you to prepare the appropriate minute of order? Do you want declaratory relief?

[148]MR HUSAIN: Yes.

[149]MR JUSTICE DAVIS: Could you agree an appropriate minute and I will initial it. I am sorry this judgment has taken so long to deliver. Thank you both very much indeed for your submissions in this case.

Rashid, R (on the application of) v Secretary of State for Home Department [2004] EWHC 2465 (Admin)

MR JUSTICE DAVIS: Introduction

the judge concluded:

MR JUSTICE DAVIS: Yes, I will make those orders on costs.

MR JUSTICE DAVIS: Because it is a policy matter.

MR JUSTICE DAVIS: All right.

MR JUSTICE DAVIS: Yes, yes, of course.

MR JUSTICE DAVIS: Indeed, the whole issue of moral detriment might benefit from --

MR JUSTICE DAVIS: Bibi was before the House of Lords.

MR JUSTICE DAVIS: Yes.

MR JUSTICE DAVIS: You would, would you not?

MR JUSTICE DAVIS: I am just a little reluctant to keep it open-ended.

MR JUSTICE DAVIS: Yes.

Cited in 5 later judgments