Samir v. Secretary of State for the Home Department

SAMIR v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1993] Imm AR 551

Hearing Date: 10 June 1993

10 June 1993

Index Terms:

Exceptional leave to remain -- policy in relation to citizens of the Lebanon -- refusal of leave following refusal of political asylum -- whether Home Office statement of 1984 was a policy statement from which a legitimate expectation might arise -- whether Secretary of State entitled to distinguish in such a policy between applications for leave from those already in the United Kingdom and applications from those who sought asylum on arrival -- whether the Secretary of State had an obligation to publish his policy in relation to the grant of exceptional leave -- whether without publication he might vary such a policy. Immigration Act 1971 s 3(2); HC 251 para 75.

Held:

Renewed application for leave to move for judicial review, following refusal by Pill J. The applicant was a citizen of the Lebanon who applied for political asylum on his arrival in the United Kingdom. The application was refused. The Secretary of State also declined to grant the applicant exceptional leave to remain. Counsel argued that the statement to a Select Committee in 1984 was a statement of policy which had given rise to a legitimate expectation in the applicant's mind that he would be granted exceptional leave to remain. Insofar as the Secretary of State had subsequently changed that policy, he erred in that he had failed to publish that change of policy. He was required to deal with cases for exceptional leave within the ambit of the 1971 Act and the rules. Held 1. The statement of 1984 was not a Ministerial Statement which could give rise to a legitimate expectation on the part of the applicant. It was no more than a statement of fact concerning the practice which had been observed for ten years previously. 2. Nothing in the 1971 Act or the rules related to cases of exceptional leave, nor was there any obligation on the Secretary of State to publish his policy on such cases or any alterations in his policy. 3. It was not unlawful for the Secretary of State to distinguish, in his approach, between those who applied for variation of leave after entry to the United Kingdom and those who sought asylum on entry. 4. The Secretary of State's decision could not be attacked on Wednesbury principles.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Rawda el Balah Samir (unreported, QBD, 28 May 1993).

Counsel:

Miss F Webber for the applicant; I Ashford-Thom for the respondent PANEL: Lloyd, Butler-Sloss, Roch LJJ

Judgment One:

BUTLER-SLOSS LJ: This is a renewed application for leave to move for judicial review. On 28 May 1993 Pill J refused to quash decisions of the Secretary of State for the Home Department, in refusing to grant the applicant political asylum in the United Kingdom in January 1993, in refusing leave to enter and the direction that he should return to Lebanon; those two being made on 13 February 1993. The applicant is a Christian Lebanese. He came to London on 23 December 1990. Immediately upon entry he applied for asylum. He was granted temporary admission. He was interviewed three times, and his application was eventually refused on the basis that, although exceptional leave may be granted to Lebanese who are already in the United Kingdom, the Home Office policy does not apply to those who have come into the United Kingdom for the purpose of applying for asylum. Before the judge, and indeed before this court, one point has been taken, although it has been put very attractively in several different ways. Miss Webber, on behalf of the applicant, has recognized that he is not within the United Nations Convention on Refugees (1951), but has argued that he has a legitimate expectation that he would come within the special position of Lebanese nationals in the Home Office exceptional leave policy. The argument is based upon a statement made on 17 December 1984 to the Home Affairs sub- committee on Race Relations and Immigration. A memorandum was submitted by the Home Office, and situations in which exceptional leave might be given were set out for exceptional policies in respect of nationals of countries listed below. Among those countries at (c) was Lebanon. It was said as follows to this sub-committee: "An exceptional policy for Lebanese who express a fear of return to Lebanon has been in operation for the best part of the last ten years." This was also a written answer in the House of Commons on 16 December 1992 by Mr Charles Wardle on behalf of the Government saying: "for some years Lebanese nationals who have expressed a fear of return to Lebanon, but who could not demonstrate they were refugees within the meaning of the 1951 Convention, have generally been allowed to remain here exceptionally outside the Immigration Rules." Then it was explained that the improved position in the Lebanon meant that this concession was being withdrawn. On 22 December 1992, a letter from the Immigration and Nationality Department of the Home Office to the Immigration Law Practitioners Association set out very much what had been said in the written answer given in the House of Commons. Miss Webber has argued that this statement of 17 December 1984 is a statement of policy, which has encompassed all those Lebanese arriving in the United Kingdom, expressing a fear of return; both those who have been previously in this country, and those who have applied at the port of entry. She further argued that any Lebanese coming into this country expressing fear of return has a legitimate expectation that he will be treated under this exceptional leave policy; and that any variation by the Secretary of State from the express policy, which has not been published, is in conflict with the policy, and raises an arguable case, which deserves the grant of leave. In an affidavit of Mr John Charles, a lawyer in the Home Office, an explanation was given for the distinction which has been taken by the Home Office in respect of on-entry asylum applicants, and those who have already been in; a restriction to which I have already referred. It is said by Miss Webber that that distinction drawn by the Home Office is in conflict with the statement of policy set out in 1984. Secondly, it is suggested that, if no policy has been published, there is an obligation to publish, which the Secretary of State has not complied with. The Secretary of State has an obligation, both under section 3(2) of the Immigration Act and under paragraph 75 of the immigration rules to deal with issues of exceptional leave within the confines of the Immigration Act and rules. I agree with Mr Ashford-Thom, on behalf of the Secretary of State, and indeed with the judge, that the statement made in 1984 was not a statement of policy, but a statement of facts, and at that time, the policy had been in existence for a period of ten years. In my judgment, no legitimate expectation can properly be raised by that statement of facts, which does not disclose the policy of the Secretary of State. There is no reliance by Miss Webber on any earlier published statement by the Secretary of State, or anyone on his behalf. We are, indeed, told by Mr Ashford-Thom, who has made some investigations, that no public statement had previously been made prior to this very short statement in 1984. In relation to the failure to set out the policy by publication, there was no obligation whatsoever upon the Secretary of State to do so. Reliance upon section 3(2) of the Immigration Act 1971 is of no assistance to Miss Webber, because this requires laying before Parliament statements of the rules. No statement of rules has ever been laid before Parliament in respect of Lebanese nationals. Indeed, the failure to set out for public consumption what has been, prior to December 1992, the policy of the Secretary of State, cannot in itself have raised a legitimate expectation of any sort whatsoever. Nor has Miss Webber relied in any way upon previous knowledge of Lebanese nationals as to what were the rules under which they might be given exceptional leave. Paragraph 75 of the immigration rules does not appear to me to cover exceptional leave cases. The statement to the House of Commons in December 1992 and the letter in December 1992 do not, in either of them, appear to have any relevance to the matter, particularly bearing in mind that the lynch pin of Miss Webber's case is that the statement in 1984 contained the policy. Since I have formed the view that it did not contain policy, the lynch pin fails, and the rest of the argument, in my judgment, fails with it. The application of the policy by the Secretary of State, which has not been published, in which he has found that those in the position of the applicant do not fall within his policy, does not, in my judgment, form any ground whatsoever for an allegation of irrationality by the Secretary of State. I find no arguable case of legitimate expectation which arises on these facts, and I would refuse this application.

Judgment Two:

ROCH LJ: I agree.

Judgment Three:

LLOYD LJ: I also agree.

DISPOSITION:

Application refused

SOLICITORS:

Lizzimore Braithwaite, London NW2; Treasury Solicitor