Mugisha, R (on the application of) v Secretary of State for the Home Department [2005] EWHC 2720 (Admin)

Case No CO/3554/2004[2005] EWHC 2720 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 4th November 2005
Strand
London WC2
B E F O R E:
MR JUSTICE CALVERT SMITH
Between
THE QUEEN ON THE APPLICATION OF TIMOTHY MUGISHAClaimant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MS S NAIK (instructed by Messrs Dexter Montague & Partners, 105 Oxford Road, Reading, Berkshire RG1 7UD) appeared for CLAIMANTMR S KOVATS (instructed by The Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE CALVERT SMITH: In this case, the claimant applies for Judicial Review of a decision of the defendant dated 7th June 2001 but served on the claimant on 8th April 2002. In reality, the complaint concerns the defendant's refusal to change that decision in the light of two facts. The first was the defendant's concession on 15th April 2004 that the claimant is a national of Rwanda. The second is the discovery by the claimant in January of 2005 of the details of an unpublished practice of the defendant relating to the return of failed asylum seekers who are Rwandan nationals. By the time of that second fact coming to light, these proceedings were already under way, the claim form being dated July 2004.[2]In summary, the claimant contends that, since November 2000, there had been a practice (which followed a similar practice in place since at least 1997) whereby a Rwandan national who failed in an application for asylum was not returned to that country but granted four years' exceptional leave to remain. Secondly, that in June 2001, in deciding this claimant's application for asylum, the defendant found as a fact that he had failed to establish that he was a Rwandan national and it is contended that that decision may well have been different had the defendant been aware of the important fact that the claimant is a Kinyarwanda speaker. Thirdly, it is contended that, in April 2004, the defendant accepted in terms that the claimant was after all a Rwandan national but that, in spite of that acceptance, he has maintained his decision not to give him the benefit the November 2000 provision. Fourth, that throughout the period from June of 2000 to today, November 2005, the defendant has shifted his position in respect of a number of issues and has not satisfactorily explained such shifts.[3]In summary the respondent claims that the decision of June 2001 was a genuine and reasonably reached decision which therefore did not entitle the claimant to the benefit of the November 2000 practice and, second, that the change of decision as to whether he, the claimant, is a Rwandan national was made because, and at a time when, it was no longer material to any issue since, by the time it was made in April 2004, the practice of not returning failed Rwandan asylum seekers but granting them exceptional leave to remain had ceased.[4]There is a considerable measure of agreement between the parties that this case, now effectively five years and five months old, has been beset by unnecessary delays, many, if not most of which, are attributable in some way or another to the defendant and those which are not cannot reasonably be attributed to the applicant himself as opposed to his legal advisers. In short therefore, whatever the rights and wrongs of the case and its ultimate result, the claimant is entitled to feel that he has not been well treated by the system as a whole.[5]Both counsel have rightly gone through the chronology of the case in presenting their respective arguments. According to the claimant, he arrived in this country on 19th June 2000. He undoubtedly applied for asylum on 20th June 2000. On 3rd November of that year, the bulletin, to which reference has already been made, was issued. It is headed "restricted - not disclosable" and, as far as the court is aware, it was not disclosed, and certainly not to the claimant until January 2005, nearly two and a half years after it had in fact lapsed. It is entitled:
"Rwanda - Bulletin 3/00... "
Important Advice for Caseworkers and Presenting Officers Dealing with Rwandan Applications. "The guidance should be read in conjunction with the latest Rwanda Country Assessment."[6]After dealing in summary with the dreadful human rights situation that had been current since 1994 or before in that country, it deals with the questions to be decided by case workers who are considering applications. In "Determining Nationality", paragraphs 14 to 17, it reads:
"14. When Rwandan nationality is in doubt, caseworkers can test language and knowledge of Rwanda during an interview. A questionnaire is available which can be used to test an individual's knowledge of Rwanda, and caseworkers may also wish to consider their own questions to ask during interview, using the latest available country assessment. "15. When deciding whether to accept an individual as of Rwandan nationality, the credibility of the applicant's claim, ability to speak Kinyarwanda, and knowledge of the country should be all taken into account. "16. The FCO advise that it would be highly unlikely that someone who had lived in Rwanda would be unable to speak Kinyarwanda. However, knowledge of the language is not the only criteria that should be used to help determine nationality. The overall credibility of the subject's claim, ability to speak Kinyarwanda, and knowledge of the country should all be taken into account when deciding whether to accept an individual as a national of Rwanda."
At G, paragraph 22:
"Although it is practically possible to effect returns, it is unlikely we would seek to enforce the removal of an individual who we are satisfied is a genuine national, to Rwandan, due to the general situation in the country at the present time. "23. Exceptional leave should be granted to those who are refused asylum (but not to those who are suspected of involvement of war crimes, or where the exclusion clause is invoked.)"
The exclusion clause is a reference to Article 1F of the Refugee Convention, which does not apply in this case.[7]At H, "Bullet Points", which I take to be a summary of what is contained earlier in the document, the second bullet point reads:
"Establish that the applicant is a genuine national of Rwanda."
The 5th bullet point reads:
"Rejected asylum seekers may be granted exceptional leave to remain on compassionate or humanitarian grounds because of the general situation in Rwanda (in accordance with the criteria set out in the chapter entitled Exceptional Leave in the ADIs)."
The sixth reads:
"There is no practical obstacle on removals to Rwanda, but it is unlikely we would seek to enforce the removal there of any applicant who we are satisfied is a citizen of Rwanda."
[8]On 10th May 2001, the claimant was due to be interviewed in connection with his application for asylum. He did not attend that interview, which therefore never took place. In due course, when refusing the application, the Secretary of State indicated that the refusal had been in part under paragraph 340 of the Immigration Rules HC 395, the relevant parts of which read:
"A failure, without reasonable explanation... to comply with a request to attend an interview concerning the application or claim... "... may lead to refusal of an asylum application or human rights claim."
The interview of 10th May 2001 is the first important event upon which, for different reasons, both parties rely. For her part, Ms Naik, who represents the claimant, contends that there are grounds for the court to find that the invitation to the interview was never received by the claimant. She bases that claim on the fact that a later document said to have be been sent to the claimant, namely the refusal decision itself, never did arrive, at least for a number of months after it had allegedly been sent. The defendant insisted that it had been sent. Mr Kovats for the defendant submits that the two events cannot be linked in that way and that I should not make such a finding on such a flimsy connection. I do not believe it right for me to find as a fact in favour of the applicant that he did not receive the invitation. On the other hand, it would be wrong for me to find as a fact that he did. The only relevant fact I can draw is that, prior to the decision letter to which I am about to refer, the Secretary of State had no means of knowing whether the claimant spoke Kinyarwanda, which, as is apparent from the bulletin to which reference has already been made, is an important factor in the decision.[9]On 7th June 2001, the Secretary of State issued his decision although, as is now accepted, it was not finally served upon the claimant until 4th April 2002. In summary, he refused the application on the bases that a number of the factual claims made were not credible; that a claim that he was wanted for or had been arrested in connection with offences of genocide did not amount to a fear of persecution but simply a fear of prosecution; that in respect of the claimant's concern that as a Hutu he would suffer persecution from the Tutsi community, that such individuals "cannot be regarded as 'agents of persecution' within the terms of the 1951 United Nations convention"; and, at paragraph 9:
"You have produced an ID card but this is not acceptable evidence of your nationality. The Secretary of State has given due consideration to the document you have submitted, alleged to be from Rwanda, but considering the ease with which such documents can be obtained he is not prepared to accept it as independent corroboration of your claim."
He then went on to reject the fear of persecution and to refuse the application under paragraphs 336 and 340 of HC 395 as amended. It is clear therefore, from the refusal letter, that the only fact directly relevant to the question of nationality was the question of the ID card.[10]Later in 2001 and at the beginning of 2002, it is clear from the correspondence in the bundle that the claimant was anxious to know what the result of his application had actually been. He engaged a firm of solicitors near where he lives and attempted to get papers from his previous representatives, or the firm the claimant thought were his previous representatives, without success. On 4th April 2002 he was served formally with the decision of June 2001 and on 12th he lodged grounds of appeal, the fourth of which reads:
"It is not clear from the [Reasons for Refusal Letter] whether the [Secretary of State] accepts the Appellant is a Rwandese national. If so it is submitted that this decision is contrary to his own policy not to return Rwandese nationals."
For her part, Ms Naik relies on the fact that from this very early juncture, the Secretary of State was on notice that he should consider carefully his policy and, for his part, Mr Kovats submits that it must have been well-known within the Rwandan community in this country, and no doubt those who advise and represent them, that there was some such policy in place which meant that failed asylum seekers were not in fact being returned. And, submits Mr Kovats, what the claimant should have done would have been to have addressed Ground 4 not to the Adjudicator but to the Secretary of State for him to consider further. Whatever the rights and wrongs of that may be, any fault certainly cannot be laid at the door, in my judgment, of the claimant; the route chosen, by way of appeal to the Adjudicator and then to the Immigration Appeal Tribunal, was the route normally followed. Alternatively, Mr Kovats suggests that the claimant should have applied for the interview which had not taken place the previous year to be reinstated so that he could have a chance, face to face, so to speak, to put his case, answer any relevant questions, display his knowledge of the language and so on. Once again, while in hindsight that may have been the sensible course, it is hard to fix the claimant with responsibility for not taking it and, as Ms Naik submits, there were other grounds for taking the normal route.[11]On 28th August 2002, operational guidance was produced by the defendant which, in effect, brought to an end the policy of not returning failed asylum seekers to Rwanda on the basis that, although conditions in the country remained poor, they had improved sufficiently to allow for returns. A letter was sent to the Asylum Process Stakeholders Group the following day, which attached the guidance and summarised its conclusions, which reads in part:
"As you may be aware the Home Office has had a long-standing practice of not normally seeking to return unsuccessful asylum applicants to Rwanda. Where their application for asylum has been unsuccessful four years exceptional leave has normally been granted. "
We have of course been keeping the situation in Rwanda under review, and in light of the continuing improvement in the country situation in Rwanda, the Home Secretary has now decided to end this policy."[12]The guidance document contains advice on how to approach evidence of nationality. At IV, paragraph 3, it reads:
"With the previous approach of granting ELR in the vast majority of Rwandan asylum claims, there have been incidents of other nationals posing as Rwandese in the hope of a more favourable decision of their claim. Caseworkers are advised to primarily consider the language the asylum applicant is speaking. Although both English and French are spoken, the likelihood is that a Rwandese national will have some knowledge of the indigenous language, Kinyarwanda, even if they have grown up and been educated outside the country."
Ms Naik relies on that as lending support to her claim that, had the Secretary of State known that the claimant was a Kinyarwanda speaker, he may well have made a different decision.[13]In the early months of 2003, a good deal of time was spent -- the claimant would submit wasted -- discussing the question of whether the claimant was out of time arising from the question of the service of the refusal letter. It may well be that, at least in part, the explanation is that the file within the defendant's office referred to solicitors and an assumption was made that the solicitors now acting for the claimant had always been, so that an erroneous point was taken. Be that as it may, the point was in fact a bad point and did delay the proceedings considerably.[14]On 13th August 2003, the Adjudicator rejected the claimant's appeal, the hearing having been on 1st August. At the hearing, the claimant was represented but the defendant was not. Once again, Ms Naik complains at the absence of representation which meant, as the Adjudicator said in his judgment, that the original document, the identity card, was not before him so that it could be considered. The question of the claimant's nationality was clearly an issue before the Adjudicator, albeit it is now accepted that it would not have been a decisive issue in view of the limited jurisdiction of the Adjudicator. It is however clear that, at least in part, the findings as to its general credibility were influenced by the Adjudicator's adoption of the Secretary of State's finding that, to put it mildly, there was something fishy about the identity card. At paragraph 34 of the determination and reasons, the Adjudicator said:
"The appellant claims that he is a Rwandan national. Evidently, at the time he entered the United Kingdom on 19 June 2000 he would have been granted exceptional leave to remain in accordance with the respondent's then policy towards Rwandan nationals. However that policy was withdrawn by the time the respondent belatedly made a decision on 8 June 2001 and told the respondent eight years (sic)later."
That last sentence was wholly wrong. The policy was not withdrawn by 8th June 2001 and indeed it appears that the documents of August 2000 were before the Adjudicator. The Adjudicator went on:
"The appellant has produced an identity card No 22242 issued on 17 May 2000. Unfortunately the original was not produced because there was no representation by the respondent and therefore I have been unable to see its physical condition. However it has been seen by the respondent. I reject it as sufficient evidence because of the ease with which such documents are prepared. In his SEF Form the appellant claimed that the meeting with a rebel soldier took place on 22 May 2000. In his recent statement the appellant places no date on the critical meeting but simply refers to it as 'May 2000'. The appellant says that he applied for the card in 1998. I find that there is no real likelihood that the appellant would have been issued after two years with his identity card barely a few days before his detention. As noted above, the identity card does not include a date of birth for the appellant. At the time of his entry into the United Kingdom he similarly did not know his date of birth but has now remembered it. It is most likely to have been a matter of public record..."
A little later on, at 38, the Adjudicator accepts, not surprisingly, since the whole hearing was conducted through an interpreter in Kinyarwandan, that the appellant speaks the language of Rwanda. At paragraph 48, in rejecting the appellant's claim, he said:
"He is a man who has clearly tried to buy his way to the United Kingdom on the basis of claiming to be a national of Rwanda on the strength of a doubtful identify card and an ill-constructed account."
At 51:
"The general position is that it is now safe for returns to be made to Rwanda and thus the change of policy by the respondent. The appellant is not entitled to the benefit of four year's exceptional leave to remain because his decision was not made earlier. In any event he has now been in the United Kingdom for approximately three years."
In view of the fact that the question of nationality was not central to the decision of the Adjudicator, who had to consider the refugee grounds and human rights grounds of the claimant, it being common ground that he was going to return to Rwanda whatever his nationality, the only issue to which the nationality problem could go is credibility. It clearly did in view of the findings that I have just outlined.[15]On 26th August 2003, the grounds of appeal were drafted by counsel. They included the claim at paragraph 2:
"At the time the Applicant claimed asylum the [Secretary of State's] policy was to grant exceptional leave to remain or enter for a period of four years to those applicants from Rwanda."
This was put forward as a ground to assert an alleged failure by the Adjudicator to consider whether the Secretary of State had acted in accordance with the law in failing to grant exceptional relief enter or remain in accordance with his own policy at the time. Cases were cited in support.[16]On 10th October 2003, the Vice President of the Immigration Appeal Tribunal gave permission to the claimant to appeal. The reasons for his decision read:
"The Respondent disputed the Claimant's claim that he is a Rwandan national. This issue was therefore before he Adjudicator for determination. "
However, it is arguable that the Adjudicator failed to make a clear finding as to whether the Claimant is a Rwandan national, despite having recorded in his Determination that his issue was in dispute."[17]The case came before the Tribunal, presided over by HHJ Ainley and the determination was notified on 27th April 2004. The Tribunal dismissed the appeal but importantly, in the context of this case, at the appeal, in which the defendant was represented, the defendant accepted that the claimant is a citizen of Rwanda. The determination and reasons then went on to consider the question of whether the policy that had been in existence, and came to an end in August 2000, should avail the claimant before the Tribunal. The Tribunal considered the August documents and the case of Abdi v Secretary of State for the Home Department [1996] Imm Ar 148 and A(Jamaica) [2003] UKIAT 00083. At paragraph 8, the determination reads:
"What these documents show to us when read together is that there was a normal but not inevitable practice of granting Rwandese 4 years exceptional leave to remain if they were unsuccessful asylum applicants at the period when the claimant was refused. Plainly this was not a fixed policy but a practice that was generally followed and it seems to us that it would have to be shown before Abdi could be involved that the Secretary of State could not in the proper exercise of his discretion have come to the conclusion that he did that the claimant was to be removed from the United Kingdom and returned to Rwanda. No evidence has been produced before us other than the documents to which we have referred to show that the Secretary of State could not have made the decision that he did make if properly directing himself on the matters that were relevant to that decision. In those circumstances we would therefore consider that the claimant's appeal would fail on that ground alone."
[18]Turning to the rest of the determination, it must be pointed out that the Tribunal did not have before them, and were therefore to some extent misled, the actual bulletin which this court has seen. This makes it absolutely clear that the policy or practice of not returning unsuccessful asylum applicants but granting them ELR was to be followed unless particular exceptions, which could not apply in this case, applied. So to that extent the Tribunal was making that early decision on a false basis.[19]The determination goes on:
"However, the matter does not stop there because it seems to use that this case is very much on all fours with the case before the Tribunal of A. In that case as in this, the claimant had not been granted leave to enter but was given a period of temporary admission prior to refusal of leave and removal directions being given. This therefore was not an appeal under Section 59(1) of the 1999 Act and the Adjudicator's jurisdiction was limited to considering whether the decision was contrary to the Refugee Convention or the Human Rights Convention. The relevance of the policy of the Home Secretary in a case such as this is limited to consideration of whether in all the circumstances the decision to return him breached his human rights; which can only, in the circumstances of this case be a reference to Article 8." "10. There is no tenable Article 8 claim in this case nor has it been argued that there is and therefore it seems to us that even if the Home Secretary did fail for no good reason to adhere to a policy that bound him that is not a matter, following A, with which the Adjudicator or the Tribunal can be concerned."
[20]So, like the Adjudicator, the question of the policy guidance, bulletin, practice, however one describes it, was not in the end relevant to the decision. That finding has not been challenged by Ms Naik today on her client's behalf. She points to it as another indication that this case was still on the wrong tack because the guidance or the bulletin had not been disclosed but, more importantly of course, because of the change in the Home Secretary's stance on her client's nationality.[21]On 6th May 2004 the claimant asked the defendant, by letter, for exceptional leave to remain, citing the policy which he understood to have been in force and supplying a letter concerning an Afghan national who had retrospectively been given ELR as the result of policy in force at the time of his application. No reply was received to that request and in due course, on 23rd July, the claim form for this case for Judicial Review was issued.[22]A month later, on 23rd August 2004, the Secretary of State replied to the letter of 6th May and refused the request for exceptional leave to remain. The terms of that letter are important. After apologising for the delay in replying, the writer of the letter said:
"You claim it would appear your client was not granted four years Exceptional Leave to Remain because in paragraph 9 of the reason for refusal letter dated 7 June 2001 the Secretary of State doubted his nationality. "
It is accepted that your client is a citizen of Rwanda, however the Adjudicator on 1 August 2003 did not believe any of the account that your client gave of his misfortunes and was found to have left Rwanda for reasons unconnected with either the Refugee or the European Rights Convention..." And then quoting from paragraph 48 of the determination:
"It became sadly all too obvious from the manner in which the appellant gave his evidence that he had not been able to remember the various accounts which he had given of his experiences and which would have been easy to have given had he given one account which was consistent and reflected the truth. Simply I reject the appellant's claim as I have found him not to be a credible witness. "
In his determination, the Tribunal fully considered your client's case using the decision in the case of Abdi v SSHD 1996 Imm AR 148 and the determination of the Tribunal in A (Jamaica) 2003 UKIAT 00083. The Tribunal dismissed your client's appeal on both grounds put before them. Although prior to August 2002 there was a practice of granting exceptional leave to remain to failed Rwandan asylum seekers it was not Published policy, and not all cases were granted exceptional leave. Each case is assessed on its merits and it was found that your client's case did not justify a grant of exceptional leave. Your client's case was found to be not credible by the Adjudicator as well as the Tribunal who both found major inconsistencies in your client's asylum claim." And the summary dealt with the letter concerning the Afghan case by saying that each case was dealt with on its merits, therefore one case could not be used to support another.[23]The letter, however, still does not describe in detail what we now know was in the bulletin and anybody reading the sentence "Although prior to August 2002 there was a practice of granting exceptional leave to remain to failed Rwandan asylum seekers it was not published policy, and not all cases were granted exceptional leave" would not have got the impression that the only people not to get exceptional leave were those suspected of genocide or of matters relevant to Article 1F of the Convention. To put it mildly, the letter could have been franker. However, Mr Kovats relies on its terms generally as setting out and being consistent with the original decision that, in June of 2001, the Secretary of State had considered the relevant issues and had come to a decision which did not then entitle the claimant to exceptional leave to remain. On 18th November 2004, as reported in Hansard for that day, Mr Browne, on behalf of the Secretary of State for the Home Department, in answer to a question as to the policy of his department not to enforce the return of failed asylum seekers, said this:
"Since 1997, the Home Office has had a policy of not enforcing the return of failed asylum seekers to the countries listed below, for the periods specified. "
Prior to October 2002, Exceptional Leave to Remain (ELR) was granted to asylum applicants from particular countries on a country basis. The blanket use of ELR for certain countries ended in October 2002 and since then the issue of return has been considered solely in terms of the individual circumstances of each case. "Since the end of blanket ELR policies the only country for which there has been a general policy not to enforce the return of failed asylum seekers has been Zimbabwe." And in the list of the countries is Rwanda and the periods specified are January 1997 to August 2002 and in a footnote, "policy in place since 1994".[24]On 15th December 2004, solicitors acting for the claimant wrote to the defendant asking, among other things, to see the unpublished policy. The letter, as does other correspondence in the case, discusses the difference between the policy and the practice. For present purposes, I do not believe there is any relevance in it and Mr Kovats realistically did not ask me to find any. I accept his analysis, which is that a policy is effectively something that is published and a practice is unpublished policy. Of course, the unpublished policy was, in general although not in specific terms, well-known to those practising in this field.[25]On 13th January 2005, the Department sent the bulletin of 3rd November 2000 to solicitors acting for the claimant under cover of a letter. After apologising for any confusion that there may have been in earlier letters, dating back to 29th August 2003, the letter reads:
"Prior to September 2002 there was no formal published policy with regard to complementary protection for failed Rwandan asylum seekers. However, in view of the circumstances in-country at that time, which mitigated against removals to Kigali, caseworkers were provided with an unpublished internal guidance note to the effect that Rwandan nationals who failed to demonstrate a well-founded fear of persecution should normally be granted exceptional leave to remain (ELR) for 4 years. "
In light of the improving situation in Rwanda, the Home Secretary decided that from September 2002 ELR should no longer be granted as a matter of course, but that each case should be considered on its individual merits. The letter dated 29 August 2002 was sent to external stakeholders, formally notifying them of the change in practice. "The unpublished guidance note of November 2000, which set out the policy for Rwandan applications at the time of the initial decision in June 2001, stated..." And then it quotes paragraph 23 which I have already quoted. The letter goes on:
"You also inquired whether your client now has a legitimate expectation of being granted the four years ELR to which he would have been entitled had evidence of his nationality been ascertained in the initial asylum decision. In light of the Tribunal determination of 27 April 2004 the Home Office accepts that the claimant is a citizen of Rwanda. Neither at the time when the original decision was made on this claim nor when it was considered by the adjudicator did we accept that your client was Rwandan. We see no grounds for any claim that a legitimate expectation that he would be treated in line with our policy and practice with Rwandans was created until the determination by the Tribunal on 27 April 2004. In April 2004 all claims were treated on a case-by-case basis and no special measures were in place for Rwandan citizens. In the circumstances we see no grounds on which to grant your client any leave."
[26]On 23rd March 2005, by which time the Hansard extract had been sent in by the claimant, the defendant wrote:
"In our letter dated 13 January 2005, third paragraph it sets out the internal guidance in place, in that failed asylum seekers from Rwanda were granted ELR and not asylum. In this particular case, the claimant's nationality was in dispute at the time the decision of his asylum application was made in June 2001. A copy of the Rwanda – Bulletin 3/00 was enclosed with out letter of 13 January 2005, setting out at contents D&E the elements caseworkers had to take into consideration when dealing with each application. The dispute concerning nationality was settled by the IAT Determination dated 27 April 2004 where it was accepted that the claimant was Rwandan. By which time the policy of granting ELR to failed asylum seekers had been revoked."
On 19th April 2005, there was another letter from which I quote part:
"In an attempt to address the issue of nationality, in the Reasons for Refusal letter dated 7 June 2001, your client was informed that the ID card was insufficient evidence and not acceptable as independent corroboration of this claim. The Adjudicator in his Determination promulgated on 13 August 2003 at paragraph 35-39 commented at length regarding your client's credibility and that of the ID card. Your client's nationality was however accepted by the IAT and we were not in a position to challenge that finding. It is not accepted that any error has been made based on the information and evidence provided at the time the decision to refuse your client's claim for asylum was made."
Ms Naik, rightly in my judgment, criticises the terms of that letter. It is perfectly clear, and was later conceded, that it was not the Immigration Appeal Tribunal which made the finding of nationality; it was the defendant who conceded that finding at the Tribunal.[27]On 28th June 2005, the defendant suggested that fresh representations should be presented as to why, as at June 2005, the claimant should now be granted leave to remain in the United Kingdom and suggested that the representations addressed all grounds for wishing to remain here, not limited to those relating to the policy, which is the main issue in the Judicial Review proceedings and assuring the claimant that the claim will be reconsidered. Representations were submitted on 20th July. In summary, they raise the fact that the claimant has now been here for five years or more making allegations of torture when in Rwanda, of his ignorance now as to where his family may be or indeed as to whether they are still alive, and that he has developed a private life in this country. It then sets out, in some detail, the way in which, as it is claimed and in large part accepted, the application has been poorly dealt with, in particular referring to the erroneous claim that the June 2001 notice had been served on the claimant and the subsequent claim that the appeal could not be lodged out of time and the time taken to decide that, the change of stance so far as the nationality of the claimant without any change in the strength of the evidence, or available evidence; and the change of stance on what the policy actually contained and whether the policy been applied to the client in the belief that he was a Rwandan national initially and whether he would have automatically had the benefit of it.[28]On 13th October of this year, the representations having been considered, the application for ELR was rejected. After setting out the matters of fact or inference, which caused the Secretary of State, and then the Adjudicator, to cast doubt on the genuineness of the ID card and therefore the nationality of the claimant, at paragraph 12 the letter reads:
"The nationality issue was further considered by the Tribunal. It concluded that your client was a citizen of Rwanda on 27th April 2004 on the basis that he was a Hutu and as such 'treated as someone who has left Rwanda for reasons unconnected with either the Refugee or the European Human Rights Convention.'"
That says, Ms Naik, perpetuates the error that it was the Tribunal that made conclusions as to his nationality rather than the Secretary of State. At page 13:
"In summary, In June 2001 when he refused your client asylum, the Secretary of State did not consider any aspect of his story reliable, including his claim to be Rwandan. It is not that the Secretary of State had a positive belief that your client was a national of some other specified country. It was that your client had simply failed to provide satisfactory evidence that he was Rwandan. "14. As the Secretary of State was not then satisfied that your client was Rwandan, he consequently did not give your client the benefit of then his practice of granting (subject to exceptions not presently relevant) exceptional leave to Rwandan asylum seekers. "15. By the time your client's appeal came before the Adjudicator on 1 August 2003, the Secretary of State had terminated his practice of granting exceptional leave to Rwandan asylum seekers. This had been done at the end of August 2002. The Secretary of State was not represented before the Adjudicator. The Adjudicator assumed, without deciding, that your client was Rwandan."
Again, this is not a conclusion that it is easy to agree with having considered the Determination. At 16:
"When the appeal came before the IAT in April 2004 there was no reason for the Secretary of State to dispute your client's claim to be a Rwandan national so the Home Office notified the Tribunal that it accepted that your client was a Rwandan. The issue before the Tribunal was a different one, namely whether the Adjudicator had jurisdiction to consider the revoked policy on granting exceptional leave to Rwandan asylum seekers."
[29]Once again, Ms Naik, in my judgment rightly, criticises that paragraph. After all this time there is still no reason given for the change of stance. In the course of his submissions to me, I asked Mr Kovats whether there was any reason that he had to put forward and he referred me to this paragraph in this letter. As to the second part of that paragraph, the issue before the Tribunal undoubtedly included the question of nationality. It was part of the grounds of appeal. It was a matter that was conceded, no doubt so that the arguments on jurisdiction could proceed more expeditiously at the outset of the hearing by the defendant without apparent explanation.[30]In the final paragraph, the defendant says, "Having considered all the representations and the evidence previously tendered on behalf of your client..." "... it is not sufficient to persuade the Secretary of State that the Immigration Rules should not be followed or that the decision made on refusing your client's application for leave to remain should be reversed."[31]It is perhaps worth pointing out that, on the factual matters, without going into detail, the Secretary of State points out that no evidence whatever had been supplied of a private life developed in the UK in the five years that the claimant had been here; that no evidence has been put forward one way or the other as to any efforts the claimant had made to get in touch with his family in Rwanda; and finally that no evidence supporting the allegation of torture had been put before the defendant and, even more surprising than that, was never put before the Adjudicator.[32]When granting permission, the Single

Judge observed:

"... in the light of the decision of Davis J in Rashid the case is sufficiently arguable to warrant a full hearing."
[33]Three cases have been put before me by Ms Naik and the general principles to be derived from those cases, in particular the third, which is R(Bakhtear Rashid) v Secretary of State [2005] EWCA Civ 744, have not been disputed by Mr Kovats. In the first of the cases cited, London Borough of Newham v Bibi [2001] EWCA Civ 607, the passage in which Schiemann LJ, giving the judgment of the court, dealt with legitimate expectation, was cited. At page 17 of the judgment:
"We gratefully adopt what was said of the phrase 'legitimate expectation' by Lord Fraser Tullybelton in A-G of Hong Kong v Ng Yuen Shitu [1983] AC 629 at page 636: "
'It is many ways an apt one to express the underlying principle, though it is somewhat lacking in precision. In Salemi v MacKellar (No.2)(1977) 137 CLR. 396, 404 Barwick CJ construed the word "legitimate" in that phrase as expressing the concept of "entitlement" or "recognition by law". So understood, the expression (as Barwick CJ rightly observed) "adds little, if anything, to the concept of a right". With great respect to Barwick CJ, their Lordships consider that the word "legitimate" in that expression falls to be read as meaning "reasonable". Accordingly, "legitimate expectations" in this context are capable of including expectations which go beyond enforceable legal rights provided they have some reasonable basis: see R v Criminal Injuries Compensation Board ex parte Lain [1967] 2 QB 864.' "18. The case law is replete with words such as 'legitimate' and 'fair, 'abuse of power' and 'inconsistent with good administration'. When reading the judgments care needs to be taken to distinguish analytical tools from conclusions which encapsulate value judgments but do not give any indication of the route to those conclusions. "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."[34]As a gloss to the first question, it is perfectly clear that the question of whether the person affected is aware of the practice or promise is not relevant in considering whether there was indeed a legitimate expectation or, as a consequence, conspicuous unfairness so as to amount to an abuse or, in the words of Davis J in Rashid, misuse of power.[35]The facts of Rashid, which was an asylum case, bear some resemblance to these facts but Ms Naik realistically concedes that they are different and, in terms of any abuse or misuse of power, more extreme than anything she can allege in this case. One particular difference was that there was no question, as there is in this case, of a finding of fact one way during the currency of a particular policy to be reversed outside the period of the currency of that policy and, secondly, a difference in that two closely related cases to Mr Rashid's case became separated, in effect, and had therefore resulted in different treatment of Mr Rashid purely, it was submitted, because of the way in which the cases had been managed.[36]In the Court of Appeal, Pill LJ gave the principal judgment. At paragraph 18 it says:
"Mr Rabinder Singh QC, for the claimant, submits that the real issue in this case is abuse of power. The court should not be fixated with labels and should take an overall view. The issue is whether there was such conspicuous unfairness by the Secretary of State as to amount to an abuse of power. Bad faith is not alleged but, in terms of the consequences which should follow from the abuse, the distinction between bad faith and incompetence may not be significant. The claimant had a legitimate expectation that the correct policy would be applied in 2001 and 2002. It was not applied because of a catalogue of serious administrative errors, it is submitted. "19. Counsel submits that fairness as between applicants for asylum..."
Was an important consideration and he then deals with the parity between the other two cases. Then:
"Given the acknowledged failure of the Secretary of State to apply his own policy, the court should give relief even if the injustice is a historical injustice. The Secretary of State should not be permitted to perpetuate the consequence of his errors."
It then goes on to summarise the development of the concept of unfairness as an abuse of power:
"20. The concept of unfairness as an abuse of power was stated by Lord Templeman in In re Preston [1985] AC 835, at page 864. Lord Templeman stated: "
'The court can only intervene by judicial review to direct the Commissioners [Inland Revenue Commissioners] to abstain from performing their statutory duties or from exercising their statutory powers if the court is satisfied that "the unfairness" of which the applicant complains renders the insistence by the Commissioners on performing their duties or exercising their powers an abuse of power by the Commissioners'. "Lord Templeman cited the judgment of Scarman LJ in HTV Ltd v Price Commission [1976] ICR 170, where, at page 189, Scarman LJ stated:
"'It is a common place of modern law that such bodies [the Price Commission] must act fairly ... it is not really surprising that a code must be implemented fairly, and that the courts have power to redress unfairness'. "21. In R v Inland Revenue Commissioners, ex parte Unilever plc [1996] STC 681, the Revenue refused to exercise a discretion in favour of the taxpayer. The circumstances were described in detail by Sir Thomas Bingham MR who stated that 'the categories of unfairness are not closed, and precedent should act as a guide not a cage'. The Master of the Rolls stated: "
'These points cumulatively persuade me that on the unique facts of this case the Revenue's argument should be rejected. On the history here, I consider that to reject Unilever's claims in reliance on the time limit, without clear and general advance notice, is so unfair as to amount to an abuse of power'. "22. Simon Brown LJ, at page 693e, considered the submission that there had been a legitimate expectation and stated that Unilever could not make good the fundamental requirement for an unqualified and unambiguous representation. However, he went on to reject the arguments of the Revenue stating, at page 695a: "'"Unfairness amounting to an abuse of power" as envisaged in Preston and the other Revenue cases is unlawful not because it involves conduct such as would offend some equivalent private law principle, not principally indeed because it breaches a legitimate expectation that some different substantive decision will be taken, but rather because either it is illogical or immoral or both for a public authority to act with conspicuous unfairness and in that sense abuse its power. As Lord Donaldson MR said in R v ITC, ex p TSW: "The test in public law is fairness, not an adaptation of the law of contract or estoppel".' "23. Lord Hoffmann adopted Simon Brown LJ's expression 'conspicuous unfairness' as amounting to an abuse of power in Secretary of State for the Home Department v Zeqiri [2002] Imm AR 296, at paragraph 44. Mr Rabinder Singh defines it as unfairness which is easy to see and 'leaps up from the page.' "24. In R v Secretary of State for the Home Department ex parte Ahmed and Patel [1998] INLR 570, Hobhouse LJ, at page 591h considered the principle of legitimate expectation stating that it is 'a principle of fairness in the decision-making process'. He stated that it is 'a wholly objective concept and is not based upon any actual state of knowledge of individual immigrants or would-be immigrants ... 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.' "25. In my judgment, there plainly is a legitimate expectation in a claimant for asylum that the Secretary of State will apply his policy on asylum to the claim. Whether the claimant knows of the policy is not in the present context relevant. It would be grossly unfair if the court's ability to intervene depended at all upon whether the particular claimant had or had not heard of a policy, especially one unknown to relevant Home Office officials. "26. In R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213, the decision challenged was the decision of a Health Authority to close a facility for the long-term disabled which the Authority had assured residents would be their home for life. That was a case which sat more comfortably with the conventional concept of legitimate expectation than does the present one. However, Lord Woolf MR, giving the judgment of the court, having stated that: 'the doctrine of legitimate expectation has emerged as a distinct application of the doctrine of abuse of power', added at paragraph 71: 'Legitimate expectation may play different parts in different aspects of public law. The limits to its role have yet to be finally determined by the courts... And without injury to the Wednesbury doctrine it may furnish a proper basis for the application of the now established concept of abuse of power'. "27. The Master of the Rolls cited Preston,Unilever and other cases and stated, at paragraph 81: 'Once it is recognised that conduct which is an abuse of power is contrary to law its existence must be for the court to determine.' He added, at paragraph 82, that 'it is for the court to say whether the consequent frustration of the individual's expectation is so unfair as to be a misuse of the authority's power'. "28. In R v Secretary of State for Education and Employment ex part Begbie [2000] 1 WLR 1115, a balance had to be struck between giving effect to an expectation arising from an undertaking given by the Secretary of State in an educational context and compliance with the terms of a statute. Laws LJ recognised, at page 1129, that 'abuse of power has become, or is fast becoming, the root concept which governs and conditions our general principles of public law'. Having considered the facts of the case, he stated, at page 1131E: "'If there has been an abuse of power, I would grant appropriate relief unless an overriding public interest is shown, and none to my mind has been demonstrated. But the real question in the case is whether there has been an abuse of power at all. The government's policy was misrepresented through incompetence. It is not in truth a change of policy at all.' "On the facts of that case, Laws LJ held that they did not 'elevate the Secretary of State's correction of his error into an abuse of power'. "29. Mr Tam submits that a generalised recourse to unfairness is insufficient to found relief. Circumstances had changed and the decision has been correctly taken by the Secretary of State in the changed circumstances. The claimant is not now entitled to refugee status. That being so, there is no principled basis on which indefinite leave to remain, which Mr Tam describes as a half-way house, can be obtained. The claimant has received the benefit of sanctuary in this country while he would have been at risk in Iraq and has no further entitlement. There is no continuing need for the benefit which should have been conferred by the decision maker. "30. Counsel accepts, by reference to R (Bibi) v Newham London Borough Council [2002] 1 WLR 237, that detrimental reliance does not necessarily 'render it unfair to thwart a legitimate expectation' (per Schiemann LJ at paragraph 31 citing, at paragraph 29, Craig, Administrative Law, 4th ed, at p619). Detriment in terms of loss of rights (and of income) during the period the claimant was deprived of refugee status is accepted by the Secretary of State but the real detriment is the loss is the right to remain in the United Kingdom which would have occurred but for the errors."[37]The concept of conspicuous unfairness which, in the submission made by Mr Rabinder Singh QC and apparently accepted by both Pill LJ and Dyson LJ in their judgments, conspicuous unfairness which leaps off the page, is what, by consent of the parties, I have been asked to look at in this case. I have done so looking overall at the treatment of this claim as well as the specific issue of the change of attitude towards the claimant's nationality. I find that there was indeed a conspicuous unfairness in the way in which the claimant has been treated, not deliberately but, in fact, ever since the finding on 8th June 2001. The question then has to be asked and answered: what remedy is appropriate? The fact is that Mr Mugisha, the claimant, has now been in this country for five years and five months. Had he, as my ruling effectively means he should have been, granted exceptional leave to remain as of June 2001, that would have expired in June 2005. Ms Naik submits that following the ultimate decision in Rashid, I should direct that the claimant be granted indefinite leave to remain. I have not heard the defendant's representations on this topic but I am against Ms Naik in any event. I should declare that exceptional leave to remain should have been granted and leave it to the claimant and defendant in due course, if the issue arises, to deal with the question of whether he should now be granted indefinite leave to remain, this court not having anything like the information necessary to second-guess that decision.[38]Ms Naik, Mr Kovats, there are bound to be errors of date or of name and so on, since I was giving an extempore judgment. Can I rely on you to send in, in the next day or two, obvious howlers so I can correct the transcript?[39]MR KOVATS: My Lord there were only, going back -- one matter: your Lordship said that the refusal letter was sent to the claimant. The only evidence before the court was that it was sent to the solicitors and not the claimant.[40]MR JUSTICE CALVERT SMITH: Could I rely on you perhaps, Ms Naik, to summarise that sort of error. There were one or two that I could hear as I made them. I made one, as Mr Kovats tells me now, and I seem to remember something.[41]MS NAIK: Yes, my Lord. I think I have only identified one date and I can liaise with your clerk about that.[42]My Lord, the other point that I ought to just raise is that I ought to have asked or suggested that the court declare relief and I did not use the right terms. The conclusion that is declared is that ELR should be granted but I think the request I make is that the court should have declaratory relief rather than mandatory relief in the normal way because of the relief that was granted in Rashid. But I can put that into my corrections if your Lordship will accept those corrections. I am very grateful.

MR JUSTICE CALVERT SMITH: Any other applications?

[44]MS NAIK: My Lord, the claimant is legally aided so there are not other applications.

MR JUSTICE CALVERT SMITH: Thank you.

Cited in 2 later judgments