R (Nadarajah) v Secretary of State for the Home Department

These two appeals both involve issues concerning Article 8 of the European Convention on Human Rights (“ECHR”), a policy of the Secretary of the State known as the Third Country Family Links Policy (“the Family Links Policy”), and the legal principle of legitimate expectation; though there are some other points in Abdi . In each case the Secretary of State issued a certificate pursuant to s.72(2) (a) of the Immigration and Asylum Act 1999 (“ the 1999 Act ”) to the effect that the appellant’s claim of violation of Article 8 was manifestly ill-founded. Such a certificate prevents an in-country appeal against a decision of the Secretary of State to remove or deport the entrant to another Member State of the European Union.

The appeal in Abdi is against the decision of Harrison J given in the Administrative Court on 5 December 2003, and is brought with permission granted by Dyson LJ on 3 March 2004. The appeal in Nadarajah is against the decision of Stanley Burnton J given in the Administrative Court on 2 December 2002, and is brought with permission granted by the judge below. Some points arising in Nadarajah have already been determined in this court, but what has been referred to as the policy issue remains; and on 29 March 2004 Dyson LJ ordered that the appeal on that issue in Nadarajah be heard with the appeal in Abdi .

It is convenient at once to set out ECHR Article 8 and s.72(2) (a) of the 1999 Act . As is well known Article 8 provides:

“(i) Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

under section 65 if the Secretary of State certifies that his allegation that a person acted in breach of his human rights is manifestly unfounded.”

The initial stages in the history of Nadarajah’s case were sketched by Stanley Burnton J:

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

In August 2001, the Claimant’s wife entered this country and claimed asylum. In November 2001, the Home Secretary certified the Claimant’s asylum claim under section 11 of the Immigration and Asylum Act 1999 . In January 2002, the Claimant’s solicitors withdrew the first judicial review claim on account of judicial decisions on third country certification (in the case of Yogathas that of the Court of Appeal).”

This account needs a little expansion. The judge’s statement that the Secretary of State sought to remove the appellant to Germany as a safe third country is a reference to a letter of 19 January 1999 by which the Secretary of State decided that the appellant was returnable to Germany pursuant to the practice set out in the Immigration Rules (HC 395 paragraph 345). By the same letter he notified the issue of a certificate under s.2(2) of the Asylum and Immigration Act 1996 to the effect (I summarise) that the appellant would not be persecuted in Germany, nor sent by the German authorities to another country “otherwise than in accordance with the [Refugee] Convention”. This meant that the appellant’s rights of appeal were restricted to an out-of-country appeal against the certificate. However, as the judge noted, his solicitors launched an application for judicial review of the decision to send him to Germany. That was unresolved when, on 20 November 2001, the Secretary of State withdrew the s.2(2) certificate and replaced it with a fresh certificate under s.11 of the 1999 Act , which is broadly to the same effect as s.2(2) of the earlier statute. I need not set it out. In the decision letter of 20 November 2001 it was stated:

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

The appellant’s judicial review application relating to the decision of January 1999 was withdrawn on 23 January 2002. There has never been a challenge to the s.11 certificate. The judge’s account continues as follows:

“3 On 21 February 2002, his solicitors made written representations to the Secretary of State, asking him to consider his asylum claim domestically, and not to deport him to Germany. They referred to medical evidence supporting his case that he had been tortured, and to psychiatric evidence of the damage to his health that would be caused by his return to Germany. As to that, they stressed that:

‘… it is our primary contention that Mr Nadarajah should not be returned to Germany because of the experiences which flowed from that country’s consideration of his refugee status.’

‘There is another important matter. Our client’s wife has joined him in the United Kingdom and made an asylum claim. We do not act for our client’s wife, who is represented by Messrs M K Sri & Co. We understand that our client’s wife is under refusal. However she has appealed and as yet no hearing date has been set. We would submit that this would further affect any decision on whether or not our client should be removed to Germany. If he is removed to Germany then it may be, notwithstanding our client’s fears and the trauma of such return, that our client would not be removed from Germany. Of course it remains our primary contention that our client should not be removed to Germany at all. However whether or not our client might remain for any length of time in that country, this would necessarily separate him from his wife, which in turn raises Article 8 issues.’

The claim under Article 8 based on the presence of the Claimant’s wife had not been made before; in particular, it had not been made on receipt of the Home Secretary’s original section 11 certificate of 20 November 2001. Curiously, the Claimant’s solicitors’ letter did not mention the fact that the Claimant’s wife was pregnant.”

Nor did the solicitors’ letter refer to the Family Links Policy. It seems they had no knowledge of it, either then or at the time of the Secretary of State’s decisions of 19 January 1999 and 20 November 2001. Its potential engagement in the case arises because of the solicitors’ reliance on the appellant’s wife’s presence in the United Kingdom. The policy was set out in a Home Office statement of 21 March 1991, headed “Safe Third Country Cases: Substantive Consideration in UK Because of Family Links”:

“We recognise that a substantial area of discretion will need to be left in order to deal sensibly with individual cases on their merits. Broadly speaking, however, the approach we propose to adopt is that potential third country cases would normally be considered substantively where

the applicant’s spouse is in the United Kingdom;

the applicant is an unmarried minor and a parent is in the United Kingdom;

the applicant has an unmarried minor child in the United Kingdom.

The Secretary of State replied to the solicitors’ letter of 21 February 2002 on 25 February 2002. The Family Links Policy is summarised, and the letter continues:

“11 The Secretary of State is satisfied that your client’s case falls outside of his above stated policy. Your client’s wife is not present in this country as an asylum seeker; indeed, her asylum application has been refused outright and she is appealing against that decision. Neither your client nor his wife has been granted refugee status in the UK nor has either of them been granted leave to enter or remain in the UK within the meaning of such terms under the Immigration Act 1971 . Furthermore, your client had been aware since his arrest as a clandestine illegal entrant [o]n 22 August 1998 that his immigration position in this country was, at best, extremely precarious, depending as it does on the outcome of his judicial review application.

The Secretary of State is confident that his above stated policy is compliant with the UK’s obligations under Article 8 of the ECHR. The Secretary of State has considered all the evidence and representations made on behalf of your client. The question for the Secretary of State is whether the undoubted interference with your client’s right to respect for his family life, if he were to be returned to Germany, would be proportionate and commensurate when balanced against his legitimate concerns in the public interest to maintain a credible and effective immigration control to the United Kingdom, and to deter abuse of the asylum system.

The Secretary of State notes that your client arrived in the United Kingdom travelling alone on 22 August 1998 having prior to this lived in Germany since 1995. The Secretary of State does not know when your client’s wife arrived here but he is satisfied that your client and his wife had been separated due to their own actions for some considerable period of time before either of them arrived in the United Kingdom. The Secretary of State is satisfied in this particular case that the need to maintain the effectiveness of the control of entry to this country for settlement outweighs the interference with your client’s Article 8 rights.

In all the circumstances and having given the most careful consideration to all the matters raised on behalf of your client, the Secretary of State concludes that the allegation that your client’s return to Germany would breach his human rights is manifestly unfounded. He accordingly certifies to that effect pursuant to Section 72(2) (a) of the Immigration and Asylum Act 1999 .”

The appellant was at that time subject to a requirement to report to the Immigration Service at Dover on 27 February 2002. His solicitors wrote to the Secretary of State stating that they were instructed to seek judicial review of the decision of 25 February. They asked for five working days (before any steps to remove the applicant would be taken) within which to lodge the papers. They also sought the Secretary of State’s confirmation that the applicant would not be taken into custody when he attended at Dover on 27 February; and they wrote to the Dover office seeking to be relieved of the requirement to attend. That was turned down. The applicant reported at Dover on 27 February. The Immigration Officer decided to detain him, stating as his reason: “your removal from the United Kingdom is imminent”. The solicitors lodged judicial review papers the next day, 28 February, and Richards J (as he then was) granted bail.

The Family Links Policy was revised in July 2002. The revision was apparently prompted by a suggestion of Collins J when he granted an adjournment in a case by name Al-Mosue on 23 March 2002. Its vehicle was a Parliamentary written answer of 22 July, in which this was stated:

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

And so at length the matter came before Stanley Burnton J. The appellant sought orders to quash three acts or decisions: (1) the decision of the Secretary of State to refuse to give substantive consideration to the appellant’s asylum claim within the United Kingdom; (2) the certificate issued under s.72(2) (a) of the 1999 Act ; (3) the decision of 27 February 2002 to detain the appellant. It is convenient to describe the disposal of applications (2) and (3) first. After considering a good deal of evidence relating to the appellant’s mental health, including material provided to the Secretary of State after his initial decision, Stanley Burnton J concluded that the Secretary of State was entitled to maintain his certificate. As regards the appellant’s detention, the judge held that the appellant’s removal from the United Kingdom was not imminent because he should, in accordance with the Secretary of State’s own policy, have been given time within which to launch his prospective judicial review. Accordingly there was a failure to apply the policy, and the detention was therefore unlawful.

The first of the three applications, for an order to quash the refusal to decide the appellant’s asylum substantively in the United Kingdom, alone survives for this court’s adjudication. It raises what has been referred to as the policy issue. Stanley Burnton J held that (a) the Secretary of State had misinterpreted the Family Links Policy: he should have accepted that the appellant’s wife was an asylum-seeker within the policy, because, although her asylum claim had been refused by the Secretary of State, she had an outstanding appeal against the refusal; (b) the Secretary of State’s interpretation, that the term “asylum-seeker” in the policy meant and only meant a person whose asylum claim had not yet been determined at the executive level by the Secretary of State, was an interpretation not reasonably open to him; (c) the appellant had no right to have his claim reconsidered under the policy as it had been in February 2002, but would (if the Secretary of State’s decisions were quashed) be liable to have it reconsidered under the terms of the revision of the policy made in July 2002; and (d) since the revision made it clear that “asylum-seeker” meant one who had not yet received an initial decision – that is to say (as I have indicated) it wrote into the policy what had in fact been the Secretary of State’s interpretation of the unrevised version – there was no point in quashing the decision, because any fresh decision would be to the same effect.

The appellant’s appeal from Stanley Burnton J was launched on all the points upon which he had been unsuccessful. The Secretary of State appealed, also with permission granted by Stanley Burnton J, on the detention issue. On 13 February 2003 I directed that the issue on the certificate under s.72(2) (a) of the 1999 Act be listed for hearing with certain related appeals, and the appeal on the other issues be adjourned to a date to be fixed.

On 19 June 2003 this court (Judge and Dyson LJJ, and Pumfrey J) allowed the appellant’s appeal relating to the s.72(2) (a) certificate, and quashed the certificate: [2003] INLR 543, [2003] EWCA Civ 840 . The appeals on the issues relating to detention and the Family Links Policy came on for hearing in this court on 10-11 November 2003. On 8 December 2003 the court (Lord Phillips MR, Dyson and Arden LJJ) dismissed the Secretary of State’s appeal on the detention issue but adjourned the policy appeal until the appellant’s wife’s asylum appeal was determined by the Immigration Appeal Tribunal (“the IAT”): [2004] INLR 139, [2003] EWCA Civ 1768 . Thereafter Dyson LJ varied that order for an adjournment so that the appeal on the policy issue might be heard with Abdi , and on 29 October 2004 I directed that it – or they – be further adjourned until after judgment in a case by name Huang [2005] EWCA Civ 105 . Judgment in Huang , to which I will have to refer further, was handed down at the beginning of March 2005.

During the currency of these appeal proceedings the Secretary of State promulgated another policy, referred to as the “ILR concession”, which I should briefly describe because it was the source of some argument at the hearing before us; although it does not in my view affect the proper result of the case. On 24 October 2003 the Secretary of State announced his intention to grant indefinite leave to remain in or enter the United Kingdom exceptionally outside the Immigration Rules. The criteria were that the applicant had applied for asylum before 2 October 2000, and had a dependant aged under 18 in the UK on 2 October 2000 or 24 October 2003. The appellant meets these criteria: he applied for asylum well before 2 October 2000, and a son was born to him and his wife in the UK on 27 August 2002. However the concession excludes from its scope “families where they are all subject to possible third country removal”. The result is that if we conclude that the appellant is by law entitled to the benefit of the Family Links Policy and thus to have his asylum claim considered substantively in the UK, he will not be subject to possible third country removal and will accordingly be granted indefinite leave to remain under the ILR concession.

I should add, finally, that the appellant’s wife’s asylum appeal was dismissed by the adjudicator on 6 May 2003, as I understand it on the basis that because of the improved situation in Sri Lanka she would face no risk of ill treatment on return. The IAT gave leave to appeal on 9 July 2003. Since then there have unfortunately been a series of adjournments and I understand that the appeal remains undetermined.

This appellant is a Somali national, whose identity and date of birth have been matters of dispute. She claims to be Sadia Abdul Kadir Abdi, born on 13 October 1984 to a woman by name Rama Ahmad Barakow. The Secretary of State has documents in his possession tending to show that this was a false identity and that in fact the appellant was called Sadia Mohamed Hassan and was born on 13 February 1980. These documents include an Italian Residence Permit and an Italian Identity Card. According to the Secretary of State her passport also showed her date of birth as 13 February 1980, as did a letter written by a sometime employer in support of a visa application. However, on 7 October 2003, some way into the appellant’s immigration history (as I shall show) there was served on the Secretary of State a DNA Relationship Analysis Report which the Secretary of State accepts is proof that the appellant’s mother is indeed the woman Rama Ahmad Barakow. There are also statements from two witnesses, one of whom is a midwife who says she delivered the appellant in 1984. The appellant’s date of birth is of some importance in the case, because if she had been born on 13 October 1984 as she claimed she would of course have reached the age of 18 on 13 October 2002; so that before that date, as an unmarried minor child of a parent (her mother) who was in the UK, she would under the Family Links Policy have been liable to have her asylum claim substantively considered by the Secretary of State in the United Kingdom, notwithstanding that she would otherwise be returnable to a safe third country for consideration of her claim to take place there.

But I anticipate the history of the case. As I have indicated, as after 7 October 2003 the Secretary of State accepted that Rama Ahmad Barakow was the appellant’s mother, but did not otherwise accept her claimed identity or date of birth. The mother, who arrived in the United Kingdom on 29 March 1999, was granted indefinite leave to remain as a refugee on 28 June 2000. That was on the basis of her membership of a minority clan in Somalia called the “Benadirs”. The appellant of course claimed to be a member of the same clan, and that was to be the basis of the asylum claim which she would in due course put forward.

The appellant arrived in the United Kingdom at Birmingham International Airport on 9 December 2001. It transpired that she had travelled with her uncle, Mohamed Ahmed Barakow, on a British Airways flight from Rome. She did not present herself at Immigration Control with her uncle (who, it appears, was a person who had previously entered the United Kingdom illegally and was held at Immigration Control for further examination). The appellant was to give her name as Sadia Abdul Kadir Abdi. When she was first interviewed she said she had flown from Kenya. In a second interview she claimed to have lived in Kenya for the preceding 14 months, and to have flown from Nairobi to Birmingham with one stopover when no-one left the plane. There are no such flights from Nairobi to Birmingham. Enquiries revealed that she had travelled under the name Sadia Mohamed Hassan with Mohamed Ahmed Barakow on a ticket routed Rome-Birmingham-Belfast-Birmingham-Rome, purchased at a Rome travel agency on 7 December 2001. On checking in at Rome the appellant had been in possession of official documents issued by the Italian authorities. These were genuine documents, and I shall make further reference to them below. I may take up the history as it is recounted by Harrison J:

“16 When she was interviewed more fully on 6 January 2002 she said that she had been in Somalia in 1998 and had subsequently spent one and a half years in Nairobi and had then been in Italy for two weeks before coming to the United Kingdom. She said that she had never worked and that she had never held a passport, although she agreed that her photograph was on the copy passport shown to her. She said she had never held an identification card and she denied ever having applied for a visa. When shown a copy of a visa application made by her, she agreed that it contained a photograph of her and thought that somebody must have signed it for her. Similarly, she denied that the Italian residence document in her name was hers although she agreed that it had a photograph of her on it. She said that she had used documents provided by a lady called Halima who pretended that she was her daughter. She denied that her uncle had brought her to the United Kingdom or that she had travelled with him. She said she happened to meet him at the airport and he offered to carry her bag. She had not come through immigration control with him because she was not feeling very well and had gone to the toilet without telling him that she was unwell.

After an interval, her solicitors asked for her to be further questioned. On this occasion she said that the residence permit was hers. She had lied because she had been attacked on three occasions by some Italian youths who had tried to rape her and she had reported it to the police. She then claimed to have arrived in Italy in the year 2000. When it was pointed out that her residence permit was granted in 1999, she said she was still in Somalia at that time. She insisted that her real name was Sadia Abdulkadir Abdi and that her sister was one year older than her, although she had said in the previous interview that she was the oldest daughter.

The claimant’s account changed yet again when she made a witness statement in these proceedings on 21 November 2002. She said that Halima obtained her Somali passport and her Italian residence documentation for her, and she had also taken her on three occasions to the British Embassy to help her fill in her visa applications. She agreed that the story she gave to the entry clearance officer was untrue. She did not even know that her mother was in the United Kingdom at that time and she did not know why Halima was trying to send her to the United Kingdom. She said that Halima had made her work for an Italian lady for about three years, keeping most of her wages, and had forced her into prostitution. Finally, she said that she had not told the truth in her interview on 6 November 2002 because she had been told what to say by her family.

In fact, a note by the entry clearance officer showed that, when she applied for her visa in October 2000, she had come in person. She had also said that she wished to go to the United Kingdom to her aunt’s wedding. In her very recent statement dated 18 November 2003, the claimant said that she did not know that her mother was in the United Kingdom when she made the three visa applications. It had been Halima’s decision that she should make the applications although she didn’t know why. She said that Halima controlled her life and forced her into prostitution.

The photographs which were found in her uncle’s luggage were included amongst the documents produced by the defendant in these proceedings. According to the defendant, they showed her to be a happy carefree young lady with friends in Italy over a period of time. The claimant said in a subsequent statement that Halima had made her look happy so that she could show them to the men using her as a prostitute. Having seen the photographs, I am inclined to agree with the defendant. Indeed, the account of her being forced into prostitution was not mentioned by her at all during her interview on 6 January 2002.”

It is useful to gather together the history of immigration applications and decisions relating to this appellant. She claimed asylum on 12 December 2001 as a member of the Benadir clan and was interviewed on 6 January 2002. On 10 January 2002 she made a claim to remain in the United Kingdom in reliance on ECHR Article 8, by virtue of her mother and younger sister being resident here. An adjudicator admitted her to bail on 17 January 2002. On 21 January 2002 her solicitors sought confirmation that she would be allowed to enter as the dependent minor child of a settled refugee. That was refused on the ground that (as I have indicated) documents in the possession of the Secretary of State showed that she was no longer a minor, having been born on 13 February 1980. On 15 April 2002 her solicitors submitted evidence (the two witnesses’ statements) to corroborate her claimed date of birth of 13 October 1984. They requested that she be granted leave to remain as a refugee like her mother. On 23 April 2002 the Secretary of State replied, referring to the Italian documents and the appellant’s passport, and stating that he did not accept that the appellant was a minor. The letter also refers to the witness statements, and makes this observation (which I cite because Mr Gill QC for the appellant complains of it): “The Secretary of State has considered the statements that you have submitted on your client’s behalf, however he is not satisfied that this gives conclusive proof of your client’s age”.

On 13 August 2002 the Secretary of State issued a certificate under s.11 of the 1999 Act to the effect that the appellant was properly returnable to Italy which had accepted responsibility to deal with her asylum claim pursuant to the Dublin Convention. The Secretary of State proposed to issue removal directions to Italy for 20 September 2002, and did so. By letter of 13 September 2002 the appellant’s solicitors intimated an appeal under s.65 of the 1999 Act alleging that her removal to Italy would violate her rights under ECHR Article 8 (that is say her right to respect for her family life, given her mother’s residence in the United Kingdom). On 17 September 2002 the Secretary of State issued a certificate pursuant to s.72(2) (a) of the 1999 Act , to the effect that the appellant’s claim of violation of Article 8 was manifestly ill-founded. The Secretary of State’s letter of that date contains this (paragraph 7):

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

Judicial review proceedings were issued to challenge the removal directions set for 20 September 2002, and the certificate issued under s.72(2) (a). Permission was granted at an oral hearing on 22 November 2002, and so at length the matter went before Harrison J in December 2003. Before that, however, on 2 October 2003, the Secretary of State wrote a further very detailed decision letter, dealing with the whole case and concluding that the appellant’s claim under Article 8 was bound to fail. In light of the nature of the submissions made on the appellant’s behalf by Mr Gill, and in particular the suggestion that the Secretary of State failed properly to investigate the appellant’s case, I should recite some of the content of this letter.

The letter records that the appellant had presented herself at Birmingham International Airport as an “undocumented arrival”, and the Secretary of State was induced to embark upon a number of positive lines of inquiry by materials found in the possession of the uncle, Mohamed Ahmad Barakow. These included the photographs referred to by the judge, and a document giving an address for the appellant, in the name of Sadia Mohamed Hassan, at Pescara in Italy. The letter of 2 October 2003 then describes the steps taken by the Secretary of State after the uncle had been interviewed on 10 December 2001, and before the appellant was interviewed on 6 January 2002:

“14 The Immigration Service at Birmingham made enquiries of the Italian authorities… The Questura di Pescara (the Divisional Police Headquarters at Pescara) confirmed from their records that your client, who is known to them as Sadia Mohamed Hassan, was born in Mogadishu on 13 February 1980. She had been issued with a residence permit, No: E404957, on 9 May 1998 by the Police Headquarters in Rome…, which gave her date of entry into Italy as 9 February 1998 at Fiumicino airport, and that on 5 May 2001 the validity of this permit had been extended to 9 May 2005 by the Police Headquarters at Pescara… They also confirmed that your client had permission to work as a domestic…

Enquiries were also made with the Entry Clearance Officer at the British Embassy in Rome. These enquiries confirmed that in 2000/01 your client had made 3 applications for ‘visit’ visas to enable her to travel to the UK but that each application had been withdrawn before a decision had been taken… The photographs on the Visa Application Forms confirm that it was your client who made the applications on 9 August 2000…, 10 October 2000 (… undated but made in person on that date), and… 22 February 200[1].

her Somali passport, number AO387209, issued to her in Rome on 4 March 1998 and valid to 3 March 2001 giving her date of birth as 13 February 1980…;

your client’s Employment Record (Libretto di Lavoro) which had been issued to her in Pescara on 9 August 1998 and showed that she had been working at Via Berardinucci 58, 65100 Pescara since 21 October 1998…;

a further document, ‘Denuncia di Rapporto di Lavoro Domestico’ confirmed that her employer in Pescara was a retired lady, Mrs Grazia Priore, who lived at that address and had been signed by both your client and her employer;

your client’s ‘Titre de Voyage’ number 09662, issued in Pescara on 2 July 2001 and valid for 12 months, also giving her date of birth as 13 February 1980…”

Mr Gill’s case for the appellant largely turns on what the Secretary of State made of the particular facts. For that reason I think it helpful to pay close attention to the reasoning and conclusions of the learned judge below. As he held (judgment, paragraph 25) the core issue on the certificate (the challenge to the removal directions was adjectival) was whether the appellant’s claim of violation of Article 8 was manifestly unfounded. In paragraph 26 the judge said:

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

Whilst an adjudicator would, in my view, be bound to disbelieve the claimant’s latest account of being forced into prostitution in Italy as being incredible, I do not consider that the Secretary of State could reasonably conclude that an adjudicator would be bound to disbelieve her account of her age and identity. There is a factual dispute on that issue such that it cannot be said at this stage that the claimant was bound to fail because an adjudicator was bound to disbelieve her on that issue.

I turn then to the second reason given by the defendant for concluding that the claim was manifestly unfounded, namely that, even if an adjudicator did believe her account as to her age and identity, he would still have been bound to conclude that there was no breach of Article 8 in returning the claimant to Italy. Put shortly, the defendant accepts that there would be an interference with the claimant’s family life under Article 8(1) if she were returned to Italy, but it is submitted that it is plainly necessary and proportionate to return her in the interests of maintaining a firm and effective system of immigration control, and that any adjudicator would be bound to conclude that the interference with her family life was justified under Article 8(2). The defendant’s position is that the claimant should have made an honest application for entrance clearance before leaving Italy.”

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

In considering this matter, I attach importance to the undoubted deception that was practised by the claimant to gain entry to this country when what she should have done was to apply for entry clearance. The fact that she would not have had identification documentation for what she says is her correct identification is of her own making. She has told a pack of lies to circumvent immigration control and she has therefore engineered the very basis of her claim, the right to respect for family life, by so gaining entry to this country. It would, in my view, be sending out the wrong message if the court were not to uphold the certificate under section 72 unless it could be shown that there were exceptional circumstances to justify a contrary conclusion. I do not consider that there are such exceptional circumstances in this case, even assuming that the claimant is who she says she is.

This is not an Article 2 or Article 3 case involving the right to life or torture or inhuman and degrading treatment. It is an Article 8 case involving the right to respect for family life. As Dyson LJ stated in Samaroo v Secretary of State for the Home Department [2001] EWCA Civ 1139 at paragraph 36, the right to respect for family life is not regarded as a right which requires a high degree of constitutional protection. The claimant has only lived with her mother for two years since coming to this country in December 2001, having previously not lived with her since 1997, albeit that that was due to family dispersal arising from civil war in Somalia. She lived in Italy for 3½ years, coming to this country, on her account, when she was 17. She is now, on her account, 19 and no longer a minor dependant child. She would not have family living with her in Italy but she could be visited and supported by her mother and uncle.

When balancing such interference with the claimant’s family life against the need for a firm and effective immigration policy and the need not to send out the wrong message by, in effect, rewarding the deception practised by the claimant by allowing her to benefit from it, and bearing in mind the considerable deference to be afforded to the defendant on that aspect of the matter, I consider that the defendant was entitled to conclude, even accepting the claimant’s account of her age and identity to be correct, that no adjudicator would hold that there had been a breach of Article 8. In my view, the defendant’s decision was both within the range of reasonable responses and it was proportionate. Taking into account the matters I have mentioned, he was entitled to conclude that an appeal to an adjudicator on the human rights claim was bound to fail. This is a case which, in my judgment, crosses the high threshold and which entitled the defendant to certify the claimant’s human rights claim as manifestly unfounded pursuant to section 72(2) (a) of the 1999 Act ”.

It is convenient first to dispose of Mr Gill’s arguments in Abdi which do not relate to the Family Links Policy . His first submission was that the Secretary of State’s conclusion, persisted in throughout the matter’s history, that the appellant’s date of birth was in 1980 and not 1984 was irrational or otherwise unlawful. As I have foreshadowed the substance of the argument was that the Secretary of State did not properly investigate the appellant’s case as to her date of birth, and in any event should not have been looking for “conclusive proof” (letter, 23 April 2002) of the date she claimed.

This is a conspicuously bad argument, which in my opinion should not have been advanced. First, there is in my judgment no principle of law which required the Secretary of State to make any further factual enquiry than in fact he did. I accept that where a public-decision maker fails to take steps which are manifestly open to him to inform himself of matters which must in reason be relevant to his decision, he may well, other things being equal, be vulnerable to a charge of irrationality, because he will not have had regard to all relevant material. But this cannot possibly be regarded as such a case.

I have already cited passages from the letter of 2 October 2003 which describe the enquiries, I would say thorough enquiries, made by the Secretary of State shortly after the appellant’s arrival here and the fruits of those enquiries. The Italian documents (which are before us) are entirely genuine, in the sense that they were issued or authenticated by the relevant Italian authorities, and there is every reason to believe that the factual state of affairs which they represent is the truth.

There is next the fact that the appellant has comprehensively and persistently lied to the authorities in order to circumvent immigration control. That is not only a circumstance which might go to the assessment of any issue of proportionality in the context of her reliance on ECHR Article 8. It also gravely undermines the credibility of what she now chooses to say about the facts.

Mr Gill says it is the appellant’s case that the documents are all explained by the fact that she was given a false identity by the woman Halima, who is referred to in passages from Harrison J’s judgment which I have cited. It is helpful to consider when this case was first canvassed. It was not advanced at the appellant’s detailed interview on 6 January 2002 when she put forward a different and inconsistent account, stating that the documents did not belong to her. Gleaning what one can from the papers before us, her present case seems to have been first relied on in paragraph 10 of a witness statement made by her on 21 November 2002 in support of her judicial review application. It seems to me that there is no escape from the conclusion that, at the very least, it falls to be viewed with the greatest possible circumspection.

Mr Gill also relies on the witness statements put forward on the appellant’s behalf, to which I have briefly referred. The witnesses have not, of course, been cross-examined. They both state they know the appellant’s mother well. It is not I think without significance that the appellant herself has asserted (in paragraph 16 of her statement of 21 November 2002) that she was told what to say at interview on 6 January 2002 by her family. At all events, the Secretary of State considered the witness statements and was plainly entitled to treat them as wholly insufficient to displace the effect of the Italian documents. That is what he did in the letter of 23 April 2002, which I have quoted. After there stating that he was not satisfied that the statements gave “conclusive proof” of the appellant’s age, the Secretary of State proceeded to enumerate some of the documents. I may deal here with Mr Gill’s complaint, which I have foreshadowed, of the Secretary of State’s use of the term “conclusive proof”. It is in my judgment entirely unreal to suppose that this amounted to a legally incorrect self-direction as to the standard of proof which the Secretary of State was to apply to the question before him. In context all that was being said was that the statements could not override the effect of the documents.

Mr Gill is also at pains to point out that the adjudicator who granted the appellant bail on 17 January 2002 accepted her claimed date of birth. But the only document which at that stage the Secretary of State was able to produce was the residence permit.

I have not forgotten that Harrison J held (judgment paragraph 30, set out above) that the Secretary of State could not reasonably have concluded that an adjudicator would be bound to disbelieve the appellant’s account of her age and identity. I entertain serious doubt as to whether that is correct; but there is no cross-notice from the Secretary of State to challenge this finding by the judge and it would be unfair and inappropriate for us to overturn it. Nor have I forgotten that our jurisdiction is as to points of law only; we are not to judge the case’s factual merits. What I have said on this part of the appeal is intended only to refute Mr Gill’s submission of irrationality. I have put the matter firmly so as to reflect my view that this argument should never have been advanced.

I understand Mr Gill to contend that quite apart from any impact of the Family Links Policy the judge was wrong to find (judgment, paragraphs 31, 45 – 47) that, even if an adjudicator did believe the appellant’s account as to her age and identity, he would still have been bound to conclude that there was no breach of Article 8 in returning the claimant to Italy. Upon this question I need say little more than that I agree with the reasoning of the learned judge. The appellant lied her way into this country. She had no entitlement under the Immigration Rules to enter the United Kingdom without an entry clearance, for which (so far as she sought to enter as the child of a refugee) she should have applied in the ordinary way: see Mahmood [2001] 1 WLR 840 , cited by Harrison J at paragraph 40 of his judgment.

The only further point that needs to be made on this part of the case is to emphasise that the judge’s conclusion is wholly in line with this court’s later judgment in Huang [2005] 3 WLR 488 . There the court substantially departed from the approach taken in earlier cases to the question how far should the adjudicator, in an Article 8 case, arrive at his own independent judgment in deciding whether removal of an appellant would be proportionate (given the legitimate aim of fair immigration control) and therefore lawful by force of Article 8(2). Giving the judgment of the court I said that the adjudicator was required

“to allow an appeal against removal or deportation brought on Article 8 grounds if, but only if, he concludes that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the appellant’s favour notwithstanding that he cannot succeed under the Rules.” (paragraph 59)

In both appeals it is said that the appellant enjoys an enforceable legitimate expectation that the Family Links Policy should be applied, so that their asylum claims fall to be considered substantively in the United Kingdom rather than in Germany or Italy. But the arguments greatly differ as between the two cases. It is convenient to deal first with Abdi .

Dyson LJ granted permission to appeal to this court in Abdi principally because he considered that there was “a real prospect of showing that para. 38 of the judgment is not a sufficient answer to the failure to have regard to the … Family Links Policy”. I have set out paragraph 38. The reasoning is, I accept, somewhat opaque. However the essential point which I think the judge is making is, with respect, sound. It is to the effect that the only challenge in the judicial review proceedings was to the s.72(2) (a) certificate (as Mr Underwood QC for the Secretary of State points out (skeleton argument paragraph 6); in contrast to Nadarajah there is no separate challenge to the Secretary of State’s refusal to give substantive consideration to the appellant’s asylum claim in the United Kingdom); the certificate only states that the contention that the appellant’s removal to Italy would violate her rights under the ECHR (effectively, Article 8) is manifestly unfounded; any issue as to the applicability of the Family Links policy could not be more than part of the background to the certificate, and is incapable of touching its legality.

I would however acknowledge that this approach, whatever its strict merits, may be thought over-technical. The Family Links Policy was relied on in the judicial review grounds drafted by counsel, and if in truth the Secretary of State was legally at fault in failing or refusing to apply the policy in the appellant’s favour, Harrison J would surely not have lacked the procedural means to give appropriate relief. Accordingly we should in my view consider the substantive question, whether indeed he was so at fault.

In making submissions about the Family Links Policy Mr Underwood laid some stress on the loose and general terms in which it was drafted (“ Broadly speaking … potential third country cases would normally be considered substantively where…”), and the extensive element of discretion built into it (“ Discretion would need to be exercised according to the merits of the case where…”). There may well be instances in which these features of the policy would be important. But they provide no carte blanche for the Secretary of State simply to choose in any given case whether to apply the policy or not, and in fairness Mr Underwood did not submit as much. Generally speaking the discipline of reason and fairness which the law imposes on public decision-makers obliges them to apply a stated policy to those to whom it is directed. If it is sought to deprive an individual or class from the benefits of the policy in question by recourse to formulations such as “broadly speaking” or “normally”, there will have to be a reasoned justification. Here, that stage was never reached. The Secretary of State never considered whether the policy should be disapplied on particular grounds, because on his view of the facts – the appellant’s date of birth – the policy in any event had no application. If he was not entitled to adopt that view of the facts, I would for my part be prepared to hold that the appellant enjoyed an enforceable legitimate expectation that the policy should be applied to her unless the Secretary of State offered a properly reasoned justification for disapplying it. Such a justification might be constituted (I make no finding one way or the other) by the determined plethora of lies told by the appellant to obtain entry; but as I say this stage was never reached.

Now, I have already held that the Secretary of State was perfectly entitled to conclude that the appellant’s date of birth was 1980 and not 1984, and that the argument to the effect that that was an irrational conclusion should never have been advanced. That seems to me to be the end of the matter. If a distinct judicial review challenge had been directed against the Secretary of State’s refusal to apply the policy, it would have been bound to fail; it would have been met with the irrefutable contention that the Secretary of State’s conclusion as to the appellant’s date of birth was, at the very least, a reasonable one.

To this moment I do not entirely understand what is Mr Gill’s response to this position. It would appear, from a separate note put in by him dated 22 July 2005 and also from his submissions at the hearing, that his contention is that his client is entitled by one route or another to have an adjudicator (now, an immigration judge) decide what is the appellant’s date of birth for the purpose of ascertaining whether the Family Links Policy applies in her case or not. But I do not know what the route might be. There is none in the 1999 Act .

In my judgment the appeal in Abdi has no merit whatever, and I would dismiss it.

The appeal in Nadarajah , which is in effect confined to an argument based on the principle of legitimate expectation, is more substantial. The appellant’s contention may be expressed very shortly. It is to the effect that the Secretary of State should apply the Family Links Policy to the appellant in its original form and by reference to its correct construction as Stanley Burnton J held it to be.

I should say first that the Secretary of State does not challenge the conclusion of Stanley Burnton J that the term “asylum-seeker” in the policy included a person with an extant appeal to the appellate authorities against the Secretary of State’s initial adverse conclusion refusing asylum. I should also notice certain circumstances relating to the s.72 certificate in Nadarajah’s case. As I have said, on 19 June 2003 this court allowed the appellant’s appeal on the certification issue. It was held that matters relied on by the Secretary of State for the purpose of the certificate were in truth arguable, so that certification was not justified. These were (a) the Secretary of State’s contention that the appellant’s wife did not come within the Family Links Policy as originally drawn: Stanley Burnton J held that she did; and (b) the Secretary of State’s view that the appellant lacked credibility: the adjudicator on the wife’s appeal took a different view. Mr Husain for the appellant understandably makes much of this in his skeleton argument. It is enough to give this short citation from this court’s judgment of 19 June 2003:

“The Secretary of State concluded that it was incredible that the appellant returned to Sri Lanka after his claim had been rejected in Germany, and Mr Taylor gave two compelling reasons for this conclusion. But Mr Taylor had not subjected the appellant or his wife to cross-examination. His conclusion was based on essentially a priori reasoning. The adjudicator reached a different conclusion on the wife’s appeal, having heard evidence from the appellant and his wife…”.

In those circumstances Mr Underwood rightly accepts (see his skeleton argument, paragraph 5) that it would not be open to the Secretary of State to re-certify under s.72 (or rather its statutory successor in later legislation) since in light of this court’s views he could not reasonably conclude that the appellant’s human rights claim is manifestly unfounded. Although we are not of course directly dealing with any issue relating to s.72 certification, it is convenient just to set out this court’s reference, at paragraph 28 of its judgment of 19 June 2003, to the decision of their Lordships’ House in Yogathas [2003] 1 AC 920 [2002] 3 WLR 1276 :

“As the House of Lords explained in Yogathas, the Secretary of State is entitled to certify a claim as manifestly unfounded if, after carefully considering the allegation, the grounds on which it is made and any material relied on in support of it, ‘he is reasonably and conscientiously satisfied that the allegation must clearly fail’ (Lord Bingham, para 14), or the allegations is ‘so clearly without substance that the appeal [to the adjudicator] would be bound to fail’ (Lord Hope para 34), or ‘it is plain that there is nothing of substance in the allegation’ (Lord Hutton para 72). Lords Millett and Scott agreed with the reasoning of Lords Bingham, Hope and Hutton. The test to be applied by the Secretary of State in certifying a claim as ‘manifestly unfounded’ is a ‘screening process’ rather than a ‘full blown merits review’ (paras 14 and 34).

The separate question remaining for determination in this appeal is whether the appellant can now rely on the Family Links Policy so as to have his asylum claim determined here. As I have foreshadowed Mr Husain’s submission is that the appellant enjoys an enforceable legitimate expectation that the original policy will now be applied to him in light of Stanley Burnton J’s construction of the term “asylum-seeker”; whereas the Secretary of State’s contention before the judge (and accepted by him) was that any fresh decision would, at least lawfully could, be arrived at in light of the revised policy, whose terms would of course exclude the appellant from its application.

There are first some uncontroversial points. Generally where a decision of a public decision-maker is quashed and the decision falls to be re-taken (as it usually will unless the court has concluded that a particular result is the only legally available decision), it will or at least may be re-taken in light of the legal and factual context prevailing at the time the fresh decision is made. This proposition is to some extent supported by Clarke v Enfield LBC [2002] EWCA Civ 1278 , paragraphs 21 and 30; but see in particular Zeqiri [2002]INLR 291, paragraph 42, where Lord Hoffmann cites paragraph 50 of the judgment in that case of the Court of Appeal.

But this cannot be regarded as a universal rule. If the legal requirement of fairness, or legitimate expectation, dictates a different result, then a different result will be had. The appeal in Nadarajah requires the court to revisit the character of the legitimate expectation principle. I will not attempt a full review of the authorities, which would extend the length of this judgment beyond tolerable limits. However a selective conspectus of some of the leading cases is indispensable for the ascertainment of the underlying principle or principles which will provide the answer to the case.

In AG of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 the question was whether an illegal entrant into Hong Kong was entitled to a hearing before a deportation order might be made against him, there having been an announcement that persons in the respondent’s position would be interviewed. The Privy Council treated legitimate expectation as amounting to a “principle that a public authority is bound by its undertakings as to the procedure it will follow, provided they do not conflict with its duty” (638G). There shortly followed Ex p. Khan [1984] 1 WLR 1337 in which the Secretary of State had refused an entry clearance for a child to be allowed into the United Kingdom for the purpose of adoption by the applicant, but had done so upon grounds nowhere mentioned in a Home Office circular letter apparently setting out the policy or criteria to be applied in dealing with such applications. By a majority (Watkins LJ dissenting) this court allowed the applicant’s appeal against the adverse judgment of Stephen Brown J at first instance. After citing Ng Yuen Shiu and other cases Parker LJ said this at 1347B-E:

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

These points are, I think, of some importance because it is all too easy to make separate compartments of the law where, in truth, different applications represent a single principle or at least interlocking principles. For reasons I will develop I think that is the position here. In this field, the lure of over-classification beguiled, perhaps created, a debate which persisted through the cases for some years: should the law recognise the notion of a legitimate expectation of a substantive benefit, or was the principle of legitimate expectation limited to an insistence upon fair procedure – so that the decision-maker could always change his mind as to the substance of the policy or decision in issue as long as he gave fair warning and (generally) allowed affected parties to make representations? The problem with substantive legitimate expectation was thought to be that it looked like a form of estoppel, which would or might inhibit a public body from exercising its statutory discretionary power in the public interest as it perceived it. Lord Birkenhead had stated the law in Birkdale District Electric Supply Co. Ltd [1926] AC 355 , 364 (cited by Lord Denning MR in Ex p. Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299 : the citation was repeated in Ng Yuen Shiu at 638B). It was

“a well-established principle of law, that if a person or public body is entrusted by the legislature with certain powers and duties expressly or impliedly for public purposes, those persons or bodies cannot divest themselves of these powers and duties. They cannot enter into any contract or take any action incompatible with the due exercise of their powers or the discharge of their duties.”

This view was doubted or questioned by a number of distinguished academic lawyers, and the issue was squarely confronted in Ex p. Coughlan [2001] QB 213 , described in Mr Underwood’s skeleton argument as “[t]he high water mark for protection of substantive legitimate expectation”. The applicant was a very seriously disabled lady who lived together with three fellow-patients in Mardon House, which was a purpose-built NHS facility where she and the others had been promised a “home for life” by the health authority. But in October 1998 the health authority decided to close Mardon House. This decision was challenged in judicial review proceedings. There were other points in the case but for our purposes the issue was whether the decision was unlawful because it involved a violation of an enforceable legitimate expectation enjoyed by the applicant to the effect that the promise of a home for life at Mardon House would be kept. The judge at first instance, Hidden J, quashed the closure decision. He held, among other things, that the health authority had shown no overriding public interest such as might justify its breaking its promise and the decision was in any event flawed by want of a proper assessment of the applicant and other matters.

Giving the judgment of the court Lord Woolf MR (as he then was), discussing the court’s role when faced with a legitimate expectation challenge, said this:

“57 There are at least three possible outcomes. (a) The court may decide that the public authority is only required to bear in mind its previous policy or other representation, giving it the weight it thinks right, but no more, before deciding whether to change course. Here the court is confined to reviewing the decision on Wednesbury grounds… This has been held to be the effect of changes in policy in cases involving the early release of prisoners… (b) On the other hand the court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken. Here it is uncontentious that the court itself will require the opportunity for consultation to be given unless there is an overriding reason to resile from it (see… Ng Yuen Shiu… ) in which case the court will itself judge the adequacy of the reason advanced for the change of policy, taking into account what fairness requires. (c) Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive , not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.

Various passages in Coughlan demonstrate that an abiding principle which underpins the legitimate expectation cases is the court’s insistence that public power should not be abused: see paragraphs 67 ff, where Ex p. Preston [1985] AC 835 , Ex p. National Federation of Self-Employed and Small Businesses [1982] AC 617 , and other decisions of their Lordships’ House are cited. I will just set out this paragraph:

“71 … [T]he doctrine of legitimate expectation has emerged as a distinct application of the concept of abuse of power in relation to substantive as well as procedural benefits… If this is the position in the case of the third category, why is it not also the position in relation to the first category? May it be… that, when a promise is made to a category of individuals who have the same interest, it is more likely to be considered to have binding effect than a promise which is made generally or to a diverse class, when the interests of those to whom the promise is made may differ or, indeed, may be in conflict? Legitimate expectation may play different parts in different aspects of public law. The limits to its role have yet to be finally determined by the courts. Its application is still being developed on a case by case basis. Even where it reflects procedural expectations, for example concerning consultation, it may be affected by an overriding public interest. It may operate as an aspect of good administration, qualifying the intrinsic rationality of policy choices. And without injury to the Wednesbury doctrine it may furnish a proper basis for the application of the now established concept of abuse of power.”

The court proceeded to cite learning to contradict the proposition that “judicial review of a decision which frustrates a substantive legitimate expectation is confined to the rationality of the decision” (paragraph 74). It was thus necessary to confront Ex p. Hargreaves , in which as I have shown that proposition was expressly upheld. In the event Hargreaves was distinguished (paragraph 76), on the basis that there the only legitimate expectation enjoyed by the prisoners had actually been met. There follows further discussion of substantive legitimate expectation, or the third category of case described by the court at paragraph 57 (which I have set out), then this:

“81 For our part, in relation to this category of legitimate expectation, we do not consider it necessary to explain the modern doctrine in Wednesbury terms, helpful though this is in terms of received jurisprudence (cf Dunn LJ in… Mahmood Khan… ). We would prefer to regard the Wednesbury categories themselves as the major instances (not necessarily the sole ones…) of how public power may be misused. Once it is recognised that conduct which is an abuse of power is contrary to law its existence must be for the court to determine.

The next case is Ex p. Begbie [2000] 1 WLR 1115 , decided on 20 August 1999, just over a month after judgment was given in Coughlan . The applicant was a child whose place at a private school was funded publicly through the Assisted Places Scheme which had been introduced by the previous government. After the general election on 1 May 1997 the new government introduced legislation (the Education (Schools) Act 1997 ) to change the policy, phasing out the benefits of the Assisted Places Scheme. The consequence for the applicant was that she would retain her assisted place only until the end of the year in which she completed her primary education, unless the Secretary of State extended it by the specific exercise of a statutory discretion in her favour. Her circumstances, unfortunately, were not within the policy considerations which had been announced as promoting a favourable exercise of the discretion in particular cases. However it was contended on her behalf, ultimately in judicial review proceedings, that (I summarise) assurances had been given by government to the effect that the applicant and other children in like position would enjoy their assisted places throughout their secondary education, and that these assurances gave rise to a legitimate expectation that they would be honoured. In fact, the policy of the government and the effect of the Act of 1997 had been incompetently misrepresented.

The judicial review claim failed at first instance and in this court. The primary ground was that an extension of the applicant’s assisted place was foreclosed by the Act of 1997. However all three members of the court (Peter Gibson and Sedley LJJ and myself) made observations concerning the legitimate expectation doctrine. Peter Gibson LJ said (1124B-C):

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

In Bibi v Newham LBC [2002] 1 WLR 237 the applicants were refugees who had been accepted by the respondent council as unintentionally homeless for the purposes of its obligations under the housing legislation and been provided with temporary accommodation. They sought to rely on a promise which the council had made to provide secure accommodation within 18 months. The promise had been given under a misapprehension as to the authority’s statutory function: they believed they owed a duty, but in fact enjoyed a discretion. In judicial review proceedings the applicants complained of the council’s failure or refusal to abide by its promise. They succeeded at first instance but the council’s appeal was allowed in part. Giving the judgment of the court, Schiemann LJ as he then was 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.

Mr Husain submits that this is such a case. The court’s judgment in Bibi has these further passages:

“39 But, on any view, if an authority, without even considering the fact that it is in breach of a promise which has given rise to a legitimate expectation that it will be honoured, makes a decision to adopt a course of action at variance with that promise then the authority is abusing its powers.

Counsel cited other learning, but the materials I have set out suffice for the determination of the appeal. It will be helpful to give a brief summary of the arguments before arriving at my conclusions.

The essence of Mr Husain’s argument consists, if I may articulate it in my own words, in these propositions. (1) The Family Links Policy in its original form, on its proper construction as Stanley Burnton J ascertained it, applied to the appellant at the time of the Secretary of State’s relevant decisions, culminating in that of 25 February 2002. (2) But it was not then applied to him. (3) A failure absent good reason to apply a policy, according to its terms, to an individual entitled to the policy’s benefit amounts to an error of law. (4) Accordingly the appellant enjoyed a legitimate expectation that the mistake (the failure to apply the policy) would be corrected by dealing with him as if the policy in its unamended form still applied to him; and so the usual rule, that an executive decision which has to be revisited because of an earlier legal error falls to be re-taken in light of the legal and factual context prevailing at the time the fresh decision is made, must give way to the appellant’s legitimate expectation so arising.

There is a suggestion in Mr Husain’s skeleton argument (paragraph 50) that the appellant should now have the benefit of the policy because between 5 August 2001 and 2 October 2001 his wife’s asylum application was awaiting determination by the Home Office, so that in that period he was within the terms of the policy on the Secretary of State’s own construction. This submission has no merit. The Secretary of State was plainly entitled to arrive at his decisions, notably by the letter of 25 February 2002, in light of the then circumstances.

There are certain features within his principal argument, as I have ventured to summarise it, which Mr Husain would emphasise. First, the policy had been publicly stated. The Home Office statement of 21 March 1991 was published or summarised in Butterworths Immigration Service and had been the subject of frequent judicial consideration. The policy’s public dissemination is an important element tending to promote a legitimate expectation of its application to those whom it benefits. Secondly, the rationale of the policy is to promote refugee family unity. It is suggested that on the facts this is a particular reason why the appellant should have the benefit of the policy; and Mr Husain takes issue with the Secretary of State’s reliance (recorded by Stanley Burnton J at paragraphs 28 – 29 of his judgment) on the fact that the appellant’s wife had been refused asylum, and that “they had been separated for some considerable period of time previously by their own actions” (paragraph 29) – the Secretary of State believed that the appellant had remained in Germany from 1995 until he came to the United Kingdom on 21 August 1998. Mr Husain submits that the adjudicator’s determination in the wife’s case tends to show that the appellant had indeed returned from Germany to Sri Lanka, as he asserted. Thirdly, the policy does not apply to an indeterminate class of persons, but to a determinate class of certain asylum-seekers; and this is a circumstance which promotes the appellant’s claim to a substantive benefit (that is, the application of the policy in his case) flowing from his legitimate expectation. Fourthly, whereas in Ex p. Begbie the erroneous statement relied on wrongly placed the applicant within the scope of the relevant policy, and the later correction took her out of it, here the error (the Secretary of State’s mistaken interpretation of the Family Links Policy) took the appellant outside the policy, and the judge’s correction put him back inside it. Thus in this case the appellant is in truth a beneficiary of the policy; and he should be given the benefit of it, without having to show detrimental reliance.

On the theme of detrimental reliance Mr Husain was especially at pains to draw support from the passage in Professor Craig’s work cited at paragraph 30 of the Court of Appeal’s judgment in Ex p. Bibi. I repeat the first sentence for convenience:

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

Mr Underwood roundly contended that there was no evidence of anything amounting to abuse of power on the part of the Secretary of State. As I have said the appellant’s solicitors’ letter of 21 February 2002 did not refer to the Family Links Policy. They did not know of it. There is no question of detrimental reliance; there is at most a tenuous form of “moral detriment” (Mr Underwood’s skeleton, paragraph 24). The Secretary of State’s decision letter of 25 February 2002 did refer to the policy (paragraph 10), so it was plain that he had considered it, and the letter explained why in the Secretary of State’s view it did not avail the appellant. The Secretary of State had consistently applied his understanding of the policy; it had always been his intention that the policy should apply as he understood it; its revision in July 2002 did no more nor less than conform the language of the policy with that position.

Mr Underwood submitted that in principle the courts will not grant relief on grounds of failure to make good a legitimate expectation unless something more is shown than a bare departure from a representation or promise. Detrimental reliance may supply the extra factor; so may inconsistency of treatment between one potential claimant and another. Ex p. Rashid [2005] EWCA Civ 744 , whose text with respect I need not cite, provides a striking instance of the latter. Mr Underwood offered a list of six factors (I apprehend he intended a non-exhaustive list) which would influence or conclude the issue whether the courts would enforce an expectation generated by promise or practice. (1) A promise specifically communicated to an individual or a group, which is then ignored (as in Coughlan ). (2) The clarity of the representation (in this case we have qualifications such as “normally” and so forth). (3) The singling out of an individual who is then treated less favourably than others also affected by the representation. (4) Detrimental reliance. (5) Where the promise is the result of an honest mistake which is then corrected, that will tend against enforcement. (6) Maladministration, verging on bad faith, affecting what is communicated to relevant persons or groups.

Against this background Mr Underwood submits that since the Secretary of State acted honestly and consistently in relation to an individual who before the material decision had no knowledge whatever of the policy which he now contends should benefit him, there can be no question of abuse of power and nothing that begins to justify relief on grounds of legitimate expectation. In the circumstances no principle of the law, whether legitimate expectation or any other, requires him to accord the appellant the benefit of the unrevised Family Links Policy as Stanley Burnton J construed it. The parties’ differences on the facts relating to the appellant’s movements (and the impact, if any, of the adjudicator’s conclusions on the appellant’s wife’s appeal) cannot begin to make a difference.

Each side exerts some pull on one’s sense of fairness. On the one hand the appellant indeed fell within the policy as Stanley Burnton J authoritatively construed it; and having in July 2002 sought to correct his own mistake (as it was later shown to be), the Secretary of State proceeded to apply the correction retrospectively by denying the appellant the policy’s benefit. On the other hand the Secretary of State acted upon his own interpretation of the policy honestly and consistently and now seeks to do no more than give effect to it as he had always conceived it to be; and for his part the appellant placed no reliance whatever on the policy until after the relevant decision had been made.

For my part I would accept Mr Underwood’s contention that there is no abuse of power here, and therefore nothing, in terms of legitimate expectation, to entitle the appellant to a judgment compelling the Secretary of State to apply the unrevised Family Links Policy in his case. I would so conclude on the simple ground that the merits of the Secretary of State’s case press harder than the appellant’s, given the way the points on either side were respectively developed by counsel. If my Lords agree, that disposes of the appeal. But I find it very unsatisfactory to leave the case there. The conclusion is not merely simple, but simplistic. It is little distance from a purely subjective adjudication. So far as it appears to rest on principle, with respect to Mr Underwood I think it superficial to hold that for a legitimate expectation to bite there must be something more than failure to honour the promise in question, and then to list a range of possible additional factors which might make the difference. It is superficial because in truth it reveals no principle. Principle is not in my judgment supplied by the call to arms of abuse of power. Abuse of power is a name for any act of a public authority that is not legally justified. It is a useful name, for it catches the moral impetus of the rule of law. It may be, as I ventured to put it in Begbie , “the root concept which governs and conditions our general principles of public law”. But it goes no distance to tell you, case by case, what is lawful and what is not. I accept, of course, that there is no formula which tells you that; if there were, the law would be nothing but a checklist. Legal principle lies between the overarching rubric of abuse of power and the concrete imperatives of a rule-book. In Coughlan (paragraph 71, cited above) Lord Woolf said of legitimate expectation, “[t]he limits to its role have yet to be finally determined by the courts. Its application is still being developed on a case by case basis.” I do not begin to suggest that what follows fulfils the task. But although as I have said I would conclude the case in the Secretary of State’s favour on the arguments as they stand, I would venture to offer some suggestions – no doubt obiter – to see if we may move the law’s development a little further down the road, not least so as to perceive, if we can, how legitimate expectation fits with other areas of English public law.

The search for principle surely starts with the theme that is current through the legitimate expectation cases. It may be expressed thus. Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so. What is the principle behind this proposition? It is not far to seek. It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public. In my judgment this is a legal standard which, although not found in terms in the European Convention on Human Rights, takes its place alongside such rights as fair trial, and no punishment without law. That being so there is every reason to articulate the limits of this requirement – to describe what may count as good reason to depart from it – as we have come to articulate the limits of other constitutional principles overtly found in the European Convention. Accordingly a public body’s promise or practice as to future conduct may only be denied, and thus the standard I have expressed may only be departed from, in circumstances where to do so is the public body’s legal duty, or is otherwise, to use a now familiar vocabulary, a proportionate response (of which the court is the judge, or the last judge) having regard to a legitimate aim pursued by the public body in the public interest. The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances.

This approach makes no distinction between procedural and substantive expectations. Nor should it. The dichotomy between procedure and substance has nothing to say about the reach of the duty of good administration. Of course there will be cases where the public body in question justifiably concludes that its statutory duty (it will be statutory in nearly every case) requires it to override an expectation of substantive benefit which it has itself generated. So also there will be cases where a procedural benefit may justifiably be overridden. The difference between the two is not a difference of principle. Statutory duty may perhaps more often dictate the frustration of a substantive expectation. Otherwise the question in either case will be whether denial of the expectation is in the circumstances proportionate to a legitimate aim pursued. Proportionality will be judged, as it is generally to be judged, by the respective force of the competing interests arising in the case. Thus where the representation relied on amounts to an unambiguous promise; where there is detrimental reliance; where the promise is made to an individual or specific group; these are instances where denial of the expectation is likely to be harder to justify as a proportionate measure. They are included in Mr Underwood’s list of factors, all of which will be material, where they arise, to the assessment of proportionality. On the other hand where the government decision-maker is concerned to raise wide-ranging or “macro-political” issues of policy, the expectation’s enforcement in the courts will encounter a steeper climb. All these considerations, whatever their direction, are pointers not rules. The balance between an individual’s fair treatment in particular circumstances, and the vindication of other ends having a proper claim on the public interest (which is the essential dilemma posed by the law of legitimate expectation) is not precisely calculable, its measurement not exact. It is no surprise that, as I ventured to suggest in Begbie , “the first and third categories explained in the Coughlan case… are not hermetically sealed”. These cases have to be judged in the round.

There is nothing original in my description of the operative principle as a requirement of good administration. The expression was used in this context at least as long ago as the Ng Yuen Shiu case, in which Lord Fraser of Tullybelton, delivering the judgment of the Privy Council, said this (638F):

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

Applying this approach to the present case, I would arrive at the same result as I have reached on the arguments as they were presented. I am clear that the Secretary of State was entitled to decline to apply the original policy, construed as Stanley Burnton J construed it, in the appellant’s case. I have already said that the Secretary of State acted consistently throughout. The appellant knew nothing of the Family Links Policy at the time of the February 2002 decision. He seeks the benefit, not of a government policy intended to apply to persons in his position but unfairly denied him, but the windfall of the Secretary of State’s misinterpretation. There is nothing disproportionate, or unfair, in his being refused it. Nothing in Mr Husain’s points seems to me to shift that position.

I would dismiss the appeal in Nadarajah .

I agree

I also agree.