AB, R (On the Application Of) v The Secretary of State for the Home Department

The question of wider importance raised on this appeal is whether rule 334(i) of the Immigration Rules requires an applicant for asylum in the United Kingdom to be present in the country at the time of the decision on the application. In my view, it does. I do not regard this as a startling conclusion, as it simply confirms that the rule means exactly what it appears to mean at first sight.

The appellant, AB, is a leader of a political movement in his country of nationality. He entered the UK on a visitor’s visa in May 2006 and applied for asylum here. His subsequent immigration history is long and complicated. For present purposes, it is sufficient to note that AB’s first application for asylum was rejected by the Secretary of State on 31 October 2007 and a second application was also rejected on 4 June 2009. AB appealed from the latter decision all the way to the Court of Appeal and on 8 November 2011 his appeal was allowed by consent. The Secretary of State undertook to make a fresh decision on his application, which was made after some delay on 12 June 2012. AB’s claim for asylum was again refused. On 9 July 2012 AB lodged an appeal against this decision with the First-tier Tribunal (Asylum and Immigration Chamber).

Throughout this time, AB had been granted exceptional leave to remain in the UK and such leave had been extended periodically. On a number of occasions AB travelled abroad and returned to the UK using a passport issued to him by his country of nationality. In November 2011, in circumstances where his passport had been mislaid by the UK Border Agency, he was issued by the Secretary of State with a certificate of travel limited to the United States to engage in talks concerning his country. As a result of judicial review proceedings brought by AB, the limitation was removed and in January 2012 he was issued with a geographically unrestricted certificate of travel valid until 17 February 2012 (by which date he undertook to return to the UK). On 13 February 2012, while AB was still abroad, he requested an extension of the certificate beyond 17 February 2012. When this request was refused, he applied to the court to challenge the refusal but the application failed. AB remained abroad until 11 March 2012, when with the assistance of the Secretary of State he returned to the UK.

On 27 March 2012 AB applied for a further certificate of travel again to attend talks in the United States as part of a peace process. He was told that he would have to apply in person and that his application would be determined in line with policy – with the implication that the application would be refused as he did not have leave to remain in the UK for at least six months. AB sought to challenge this decision but on 13 April 2012 the court refused permission to proceed with a claim for judicial review. He did not pursue his application for a certificate of travel further.

In early May 2012 AB’s passport from his country of nationality expired.

On 21 July 2012 AB left the UK. He had no certificate of travel and did not inform the Secretary of State of his departure. In order to travel, he used a passport issued to him by a third country which was valid from 23 May 2012 for three years.

AB’s appeal to the First-tier Tribunal from the decision dated 12 June 2012 refusing his claim for asylum was due to be heard on Monday, 6 August 2012. On the Friday before the hearing the Secretary of State abandoned the decision with a view to re-making it within three months because the decision had proceeded on the erroneous basis that AB was an illegal immigrant.

On 9 August 2012, while he was still abroad, AB’s exceptional leave to remain in the UK expired.

On 20 August 2012 the Treasury Solicitor wrote on behalf of the Secretary of State to solicitors acting for AB asking them to confirm whether he was presently in the UK. AB’s solicitors eventually replied on 18 September 2012 to say that he was not. They gave an explanation of his reasons for travelling abroad and said that he had been issued with a travel document, in confidence, by a “friendly state” for political reasons, to be used as absolutely necessary. They did not identify the “friendly state” (except to say that it was not AB’s country of nationality) or the nature of the travel document. Nor did they say where AB currently was, nor whether or when he intended to return to the UK. The letter from AB’s solicitors also complained of the Secretary of State’s failure to make a lawful decision on AB’s claim for asylum and requested the Secretary of State to grant his application. This was followed on 20 September 2012 by a further letter seeking confirmation that the asylum decision would be made by return.

The Treasury Solicitor replied on 21 September 2012. The critical part of the letter (which contains the decision challenged in these proceedings) stated as follows:

“As your client is no longer in the United Kingdom the Secretary of State is not in a position to take forward his claim for asylum and, in light of your client’s actions, a further decision cannot be made.

If and when your client seeks to re-enter the United Kingdom, any further application for asylum will involve an interview and your client will be expected to inform the Secretary of State of his change in circumstances. I note that, if he intends to return to the United Kingdom, your client will need to satisfy the Immigration Officer at the port of entry that he qualifies for admission.”

Since then, AB has not been permitted to re-enter the UK. On 12 October and again on 20 December 2012 AB’s solicitors asked whether the Secretary of State was willing to allow AB to return to the UK as an undocumented passenger, but this request was refused. AB’s wife and adult children are living in the UK, having entered the country on various dates in or before March 2012 and applied for asylum. Their application for asylum was granted in February 2013 and they were given leave to remain. In August 2013 AB applied for leave to enter the UK to be re-united with his family but this application was refused by the Secretary of State. An appeal from that refusal was ultimately unsuccessful. AB is currently living mostly in another EU country and has a Schengen visit visa valid until June 2019.

On 21 December 2012 AB commenced the present action seeking judicial review of the decision dated 21 September 2012 “to refuse to make the decision on the claimant’s asylum claim whilst he is outside the UK”. Permission was given to proceed with the claim but it was then stayed by consent until AB’s application for family reunion had been determined by the First-tier Tribunal. Thereafter the claim for judicial review proceeded to a hearing. It was dismissed by Sweeney J for reasons given in a judgment dated 7 November 2016: see R (AB) v Secretary of State for the Home Department [2016] EWHC 2751 (Admin). AB appeals from that decision on two grounds.

The first ground of appeal is that the judge erred in finding that rule 334 of the Immigration Rules requires an applicant for asylum to be in the UK at the time of the decision.

At the relevant time, (Footnote: ¹) rule 334 provided (emphasis added):

“Grant of refugee status

An asylum applicant will be granted refugee status in the United Kingdom if the Secretary of State is satisfied that:

(i)

he is in the United Kingdom or has arrived at a port of entry in the United Kingdom;

(ii)

he is a refugee, as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;

(iii)

there are no reasonable grounds for regarding him as a danger to the security of the United Kingdom;

(iv)

having been convicted by a final judgment of a particularly serious crime, he does not constitute a danger to the community of the United Kingdom; and

(v)

refusing his application would result in him being required to go (whether immediately or after the time limited by any existing leave to enter or remain) in breach of the [Refugee] Convention, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, political opinion or membership of a particular social group.”

Although rule 334(i) does not specify in terms the date on which the applicant must be in the UK in order to be granted asylum, it is implicit in the wording that this requirement (and all the other requirements set out in the rule) must be satisfied at the time when the decision on the application is taken by the Secretary of State. That is the clear implication of the double use of the present tense (“is satisfied that … he is in the United Kingdom”).

It has, however, been argued on behalf of AB that, properly interpreted, rule 334(i) does not require an applicant to be present in the UK when the decision on the application is taken but only when the application for asylum is made. Not only is this interpretation contrary to the natural reading of rule 334(i) but the difficulties facing it are magnified when the lens is widened to consider the other parts of the rule. Paras (ii) and (iii), for example, make the grant of asylum conditional on the Secretary of State being satisfied that the applicant “is a refugee, as defined …” and that “there are no reasonable grounds for regarding him as a danger to the security of the United Kingdom”. It is hard to see any rational basis for requiring an applicant to be granted asylum if he is not a refugee at the time when the decision on his application is taken, even if he came within the definition of a refugee at the time when he submitted his application; nor for requiring an application to be granted if, at the time of the decision, there are reasonable grounds for regarding the applicant as a danger to the security of the United Kingdom, even if those grounds did not exist at the time of the application. Similar points can be made in relation to paras (iv) and (v). Equally, there is no basis for reading the rule as requiring the conditions set out in paras (ii) to (v) to be satisfied at the time of the decision but the condition stated in para (i) – i.e. presence in the UK – to be satisfied only on a different date.

Despite these formidable objections, AB contends that rule 334(i) should be interpreted only as requiring an applicant to be present in the UK at the time of the application and not at the time of the decision on the ground that such an interpretation is necessary in order to render the rule consistent with the 1951 Geneva Convention relating to the Status of Refugees as amended by the 1967 Protocol (the “Refugee Convention”) and with relevant European law.

Article 1A(2) of the 1951 Refugee Convention to which the UK is a party defines a “refugee” as a person who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

Article 32 prohibits contracting states from expelling a refugee lawfully in their territory save on grounds of national security or public order. Article 33 imposes an obligation on contracting states not to return (“refouler”) a refugee to territories where his life or freedom would be threatened.

Although not all of the obligations set out in the Refugee Convention have been incorporated into UK domestic law, section 2 of the Asylum and Immigration Appeal Act 1993 provides that nothing in the Immigration Rules shall lay down any practice which would be contrary to the Refugee Convention.

Counsel for AB submitted that the Refugee Convention does not in any way limit the ability of states to determine asylum claims where a person who has already entered the receiving state and claimed asylum is outside the receiving state at the time of the determination. I would accept this submission so far as it goes. But what matters for present purposes is that nothing in the Refugee Convention requires a contracting state to grant asylum to someone who at the time of the decision is not within its territory.

In R (European Roma Rights) v Prague Immigration Officer [2004] UKHL 55, [2005] 2 AC 1, the House of Lords held that the Refugee Convention does not require the UK to consider claims for asylum made by persons outside the UK. Lord Bingham (with whose opinion the rest of the House agreed) observed that the Refugee Convention represented a compromise between competing interests. On the one hand, the Convention prohibits a contracting state from returning a refugee who has entered its territory (legally or illegally) to territories where he would be threatened with persecution. But on the other hand, the Convention does not go so far as to impose an obligation on contracting states to afford entry to persons claiming refugee status. Thus, as Lord Bingham noted, “the Convention is directed towards those who are within the receiving state” (para 15). Lord Bingham also quoted (at para 17) the following statement from a commentary on the Convention published in 1953:

“Article 33 concerns refugees who have gained entry into the territory of a contracting state, legally or illegally, but not to refugees who seek entrance into this territory. In other words, article 33 lays down the principle that once a refugee has gained asylum (legally or illegally) from persecution, he cannot be deprived of it by ordering him to leave for, or forcibly returning him to, the place where he was threatened with persecution, or by sending him to another place where that threat exists, but that no contracting state is prevented from refusing entry in this territory to refugees at the frontier. In other words, if a refugee has succeeded in eluding the frontier guards, he is safe; if he has not, it is his hard luck.”

See N Robinson, Convention Relating to the Status of Refugees (Institute of Jewish Affairs, 1953) p163. Lord Bingham pointed out that this opinion has been endorsed by other commentators and upheld by the United States Supreme Court in Sale, Acting Comr, Immigration and Naturalisation Service v Haitian Centers Council Inc (1993) 509 US 155, 183, fn 40, and by the High Court of Australia in Minister for Immigration and Multicultural Affairs v Ibrahim (2000)204 CLR 1, para 136, and Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1, para 42. In the last passage cited, McHugh and Gummow JJ said:

"Rather, the protection obligations imposed by the Convention upon contracting states concern the status and civil rights to be afforded to refugees who are within contracting states."

Lord Bingham was prepared to accept that, although not embodied in the Refugee Convention, a principle had since gained general acceptance and may have achieved the status of customary international law that a person who applies for asylum at the frontier of a state (as well as someone who applies from within it) should not be rejected or returned to a state where they are at risk of persecution without an appropriate inquiry: see the Roma Rights case at para 26. This principle no doubt explains why rule 334(i) of the Immigration Rules includes reference to an applicant who “has arrived at a port of entry in the United Kingdom”. Furthermore, in Hirsi Jamaa v Italy (2012) 55 EHRR 21 the European Court of Human Rights has held that it is contrary to article 4 of Protocol No 4 of the European Convention on Human Rights to intercept on the high seas and send back migrants who are trying to reach a contracting state without examining their individual circumstances. These legal developments, however, are not relevant to the present question, as AB was not at the UK border nor within the control of the UK at the time of the decision to refuse his application.

On behalf of AB, Mr Knafler QC argued that the Roma Rights case can be distinguished on its facts because the applicants for asylum in that case had never entered the UK. The case was therefore not concerned with someone in the position of AB who has entered the UK and applied for asylum here but who is not present in the country when his application is considered. It is true that this factual difference exists, but I cannot see that it is material. The reason relevant for present purposes why the applicants in the Roma Rights case were not protected by the Refugee Convention was that the obligations imposed by the Convention – and in particular, the key prohibition against refoulement – of their very nature apply only to persons who are within the territory (or at least the control) of a contracting state, and there is no obligation on a contracting state to admit asylum seekers to its territory. It makes no difference in that regard whether the person who wishes to seek asylum has never entered the territory of the contracting state in the first place or has entered its territory and then voluntarily left. In neither case does the principle that a refugee cannot be forcibly returned to a place where he faces persecution afford him any assistance.

Counsel for AB also placed reliance on two European directives which establish minimum standards with which member states of the European Union are required to comply in operating a system of asylum. The directives in force at the relevant time were Council Directive 2004/83/EC of 29 April 2004 (the Qualification Directive) and Council Directive 2005/85/EC of 1 December 2005 (the Procedures Directive).

Article 13 of the Qualification Directive states:

“Member States shall grant refugee status to a third country national or a stateless person, who qualifies as a refugee in accordance with Chapters II and III.”

The provisions of Chapters II and III of the Directive set out various matters which must be considered and criteria which must be applied in assessing applications for asylum and in determining whether the applicant is at real risk of persecution. The main objective of the Directive is, as stated in recital (6), “on the one hand, to ensure that Member States apply common criteria to the identification of persons genuinely in need of international protection, and, on the other hand, to ensure that a minimum level of benefits is available for these persons in all Member States.” As recorded in recital (2), the underlying aim is to “work towards establishing a Common European Asylum System, based on the full and inclusive application of the [Refugee Convention], thus affirming the principle of non-refoulement and ensuring that nobody is sent back to persecution.” Recital (3) affirms that the Refugee Convention provides “the cornerstone of the international legal regime for the protection of refugees.” The Directive also sets out criteria for determining whether an applicant is at real risk of serious harm for certain reasons not covered by the Refugee Convention and obliges Member States to grant humanitarian protection to those who meet the relevant criteria.

Counsel for AB emphasised the mandatory language of article 13 (“shall grant refugee status”) and the fact that the qualification requirements set out in Chapters II and III do not include a requirement that the applicant is present in the territory of the Member State at the time when the decision whether to grant refugee status is taken. There is, however, nothing in the Qualification Directive to suggest that it is intended to create any obligations on a Member State to afford protection to persons who are not within its territory. On the contrary, given that the stated aim of the Directive is to establish common criteria for implementing the Refugee Convention, and given that the Refugee Convention does not afford any such extra-territorial protection, it is natural to interpret the obligations imposed by the Qualification Directive – including article 13 – as subject to the same territorial limitation. In other words, the Qualification Directive is not to be read as obliging Member States to grant asylum to refugees who are outside their territory.

Counsel for AB sought to draw a contrary inference from article 11, which sets out circumstances in which a person will cease to be a refugee, including where a person:

“(d)

has voluntarily re-established himself or herself in the country which he or she left or outside which he or she remained owing to fear of persecution;”

This argument, however, confuses the question whether a person falls within the definition of a “refugee” with the territorial scope of the obligation owed by a state to persons who fall within the definition. A person may be within the territory of a Member State and yet have ceased to be a refugee because she has voluntarily re-established herself in the country which she left owing to fear of persecution (or because she has ceased to be a refugee for some other reason). Conversely, the fact that a person leaves the territory of the relevant Member State does not mean that he or she has ceased to qualify as a refugee. What it does mean, however, is that the Member State has no obligation to recognise the person’s refugee status and afford the protection which follows from such recognition, including the fundamental protection against refoulement.

The main objective of the Procedures Directive, as stated in recital (5), is to introduce a minimum framework in the EU on procedures for granting and withdrawing refugee status. Article 3 defines the scope of the Directive and states that it applies to “all applications for asylum made in the territory… of the Member States…”. Article 7 provides that applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision on their application for asylum. Recital (22) records that Member States should examine all applications on the substance, except where the Directive provides otherwise. Article 20 specifies circumstances in which Member States may assume that the applicant has implicitly withdrawn or abandoned his or her application for asylum, which include at para 1(b) the case where:

“He/she has absconded or left without authorisation the place where he/she lived or was held, without contacting the competent authority within a reasonable time, or he/she has not within a reasonable time complied with reporting duties or other obligations to communicate.”

I would readily accept that AB’s application for asylum fell within the scope of the Procedures Directive, as the application was made in the territory of the UK. Furthermore, even if it might have been argued that AB had implicitly withdrawn his application by leaving the UK without a certificate of travel and without informing the Secretary of State within a reasonable time, no such point was taken and no determination was made by the Secretary of State that the application had been implicitly withdrawn. In these circumstances the Procedures Directive required the UK to take a decision on AB’s application for asylum. There is nothing in the Directive, however, which can be interpreted as requiring a Member State to grant refugee status to a person who is not within its territory at the time of the decision. Indeed, the Directive is not concerned at all with whether or when an applicant should be granted refugee status but only with the procedures to be followed in reaching the decision. There is also nothing in the Procedures Directive which obliges a Member State to re-admit to its territory an applicant who chooses to leave the Member State while his or her application is pending. Notably, article 7 confers a right to remain in the Member State until a decision has been made on the application but not a right of entry or re-entry on an applicant who is not in the Member State.

Reference was also made by both sides in argument to Council Regulation (EC) No 343/2003 of 18 February 2003 (“Dublin II”), which was in force at the material time and established criteria and mechanisms for determining the Member State responsible for examining an application for asylum lodged in one of the Member States of the EU by a third country national (see article 1). Materially similar provisions are now contained in the current Regulation (EU) No 604/2013 (“Dublin III”).

A central aim of the Dublin Regulations is to avoid multiple applications for asylum within the EU by the same applicant. To this end, Dublin II (and Dublin III) allocate responsibility for examining any application for asylum made by a third country national to a single Member State: see article 3(1). Under Dublin II the default position (unless one of certain other criteria applied) was that the Member State given this responsibility was the first Member State with which an application for asylum was lodged: see article 13. Pursuant to article 16(1), this Member State was obliged to take charge of the asylum seeker and complete examination of the application for asylum. In addition, provided that certain conditions were complied with, the responsible Member State could be required to take back someone whose application for asylum was under examination or whose application it had rejected and who was in the territory of another Member State without permission. There was (and is), however, no obligation on another Member State to send back such a person.

Assuming that in AB’s case the UK was the responsible Member State under Dublin II, another Member State in which he was present without permission could have required the UK to take him back; and if the UK authorities received such a request made in accordance with the Regulation, they would be bound to re-admit him to the UK. There is, however, nothing in the regime of Dublin II (or Dublin III) which is inconsistent with the policy embodied in rule 334(i) of the Immigration Rules of making the grant of an application for asylum conditional on the applicant being in the UK.

I conclude that nothing in the Refugee Convention or in any of the relevant European Directives gives any reason to interpret rule 334(i) of the Immigration Rules other than in accordance with its natural meaning which makes it a necessary condition of being granted asylum in the UK that the applicant is in the UK at the time when the decision on the application is taken.

So far, I have treated AB’s case as being that rule 334(i) does not require an applicant to be present in the UK at the time of the decision on his application in order to be granted asylum in the UK. However, counsel for AB also advanced an argument that rule 334(i) does not require an applicant to be present in the UK in order for a decision to be taken on the application. In the submissions made in support of AB’s first ground of appeal, these two quite different arguments were not always clearly distinguished.

The second argument seems to me to be clearly correct. No one could reasonably read rule 334(i) as preventing the Secretary of State from taking a decision on an application for asylum when the applicant is outside the UK. All that the rule does is prevent the Secretary of State from granting the application in that event.

Nor does any other provision of the Immigration Rules relating to asylum prevent the Secretary of State from taking a decision on an asylum claim if the applicant is outside the UK. To the contrary, the rules require a decision to be taken “on each application for asylum as soon as possible” (see rule 333A) and this requirement is not made conditional on the applicant being within the UK. The requirement to take a decision as soon as possible is “without prejudice to an adequate and complete examination”; and if the Secretary of State had reasonably considered that more information was needed to enable her to reach a decision, she could have postponed taking it. But that did not arise in this case. A decision might also no doubt have been postponed if AB had asked the Secretary of State to wait until he returned to the UK before taking a decision on his application and she had agreed to that request. But again that is not what happened on the facts of this case where AB’s solicitors were actively pressing for the decision to be made “by return” (see paragraph 9 above). Rule 333C permits consideration of an application to be discontinued if the application is withdrawn. But it has not been argued that AB’s application for asylum was withdrawn either explicitly or implicitly. Furthermore, rule 336 provides:

“An application which does not meet the criteria set out in paragraph 334 will be refused.”

As discussed above, one of the criteria set out in rule 334 is that the applicant is in the UK (or has arrived at a port of entry in the UK) at the time when the decision on his or her application is taken. Reading the relevant rules together, it is clear that, if an applicant for asylum in the UK leaves the country while their application is pending, then (absent some particular reason such as the application being withdrawn) the Secretary of State remains obliged to take a decision on the application; and that, if the applicant is outside the UK at the time of the decision, the rules require that the decision be to refuse the application.

Counsel for AB positively endorsed this analysis. Mr Knafler QC criticised the letter dated 21 September 2012 on the basis that it was wrong to say that, as AB was no longer in the UK, “a further decision cannot be made”. He submitted that, on the proper interpretation of the Immigration Rules, the consequence of AB not being in the UK was not that a decision could not be made but that rule 336 required his application for asylum to be refused.

I agree with this submission but I cannot begin to see how it assists AB’s case. It simply leads to the conclusion that (subject to the second ground of appeal discussed below) the Secretary of State should have refused his asylum claim. Quashing the Secretary of State’s decision and directing the Secretary of State to replace it with a decision to refuse AB’s application for asylum would defeat rather than advance his wish to be granted asylum in the UK.

In an attempt to avoid this logic, Mr Knafler sought to suggest that AB would have been better off if the Secretary of State had expressly refused his application for asylum, as he would then have had a right of appeal from that decision to a tribunal. However, as Mr Payne for the Secretary of State pointed out, that suggestion was incorrect. Prior to October 2014, a person could only appeal against the rejection of an asylum claim if he had been granted leave to enter or remain in the UK for a period exceeding one year (s.83 of the Nationality, Immigration and Asylum Act 2002); otherwise the only relevant right of appeal to a tribunal was against a decision that the applicant was to be removed from the UK (see s.82 of the 2002 Act). Neither right of appeal would have been available to AB, as at the time of the decision dated 21 September 2012 he did not have leave to enter or remain in the UK for any period and no question of removing him from the UK arose as he was not in the UK. (Footnote: ²)

In any case, if (as this argument assumes) the decision which the Secretary of State ought to have taken was to refuse AB’s application, a right of appeal against that refusal to a tribunal would be of no benefit, as ex hypothesi the tribunal could only properly conclude that the decision to refuse the application was correct. This line of argument therefore leads nowhere. I conclude that, although the Immigration Rules required the Secretary of State to refuse AB’s application for asylum rather than declare herself unable to decide it, there is no point in quashing her decision as the difference caused no prejudice to AB.

AB’s second ground of appeal is that the judge erred in concluding that it was not irrational, unreasonable or otherwise unlawful for the Secretary of State to decline to act outside the Immigration Rules. In particular, counsel for AB argued that the Secretary of State unlawfully fettered her discretion by proceeding on the basis that she was unable to make a decision on AB’s asylum claim when it was open to her to take the decision outside the Immigration Rules; and that, had she considered whether to exercise her discretion outside the Rules, she could have granted his asylum claim (either outright or in principle) or at least facilitated his re-entry to the UK to enable him to proceed with the application. It was further submitted that not to facilitate his re-entry for this purpose was irrational, unfair and an abuse of power.

Again, it is necessary to disentangle different strands of the appellant’s argument. Insofar as the complaint made is that the Secretary of State was wrong to consider that she could not take a decision on AB’s asylum claim, I have already accepted its validity. The Secretary of State could (and should) have taken a decision on whether to grant AB’s application for asylum. It was not necessary to go outside the Immigration Rules for that purpose as the rules required a decision to be taken. However, they also required that the decision should be to refuse the application.

Insofar as the complaint made is that the Secretary of State fettered her discretion by declining to act or consider the possibility of acting outside the Immigration Rules, I do not accept its validity. As I see it, no question of acting outside the Rules arose in this case.

A public authority which has a discretionary power may adopt a policy or rule to regulate the exercise of the power and indeed, if it fails to act consistently with its rule or policy, its decision may be open to public law challenge by a person adversely affected. At the same time the principle against fettering discretion requires decision-makers not to shut their ears to claims falling outside the policies they have adopted: see Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799, para 15. The leading authority is British Oxygen Co Ltd v Minister of Technology [1971] AC 610. In that case the Board of Trade had a discretionary power to make grants for capital expenditure, but it adopted a policy not to make a grant for any item costing less than £25. British Oxygen had purchased a very large number of gas cylinders which cost over £4 million in total but only about £20 each. In accordance with its policy, the Board declined to make a grant. Lord Reid identified the general rule as being that “anyone who has to exercise a statutory discretion must not ‘shut his ears to an application’” and “refuse to listen at all” but must be “always willing to listen to anyone with something new to say”. As the Board had “carefully considered” all that British Oxygen had said and had done nothing to suggest that it would not continue to do so in future, it had acted lawfully.

The nature of the Immigration Rules has recently been analysed by the Supreme Court in Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799. Lord Reed (giving the judgment of the Court) noted at para 17 that the Immigration Rules are not law but a statement of the Secretary of State’s administrative practice. But he also said:

“Nevertheless, they give effect to the policy of the Secretary of State, who has been entrusted by Parliament with responsibility for immigration control and is accountable to Parliament for her discharge of her responsibilities in this vital area. Furthermore, they are laid before Parliament, may be the subject of debate, and can be disapproved under the negative resolution procedure. They are therefore made in the exercise of powers which have been democratically conferred, and are subject, albeit to a limited extent, to democratic procedures of accountability.”

It is in the light of these features that the Court of Appeal in R (Sayaniya) v Upper Tribunal [2016] EWCA Civ 85, [2016] 4 WLR 58, paras 21-35, held that the Immigration Rules are not themselves subject to the “non-fettering” principle and that, where the Rules are expressed in mandatory terms, they are not, for that reason, ultra vires nor to be read as operating other than in a mandatory manner. At the same time, the Court of Appeal recognised that the Rules do not restrict the exercise of the Secretary of State’s discretionary powers in that she always has a residual discretion to consider an application made outside the Rules by someone who does not qualify under them: ibid at paras 39-41. As is implicit in the Court of Appeal’s decision, the exercise of this residual discretion is subject to the “non-fettering” principle.

Applying this analysis to the present case, the position is in my view as follows:

There is no evidence, however, that, before the decision under challenge was made, AB or his solicitors made any request for his application for asylum to be considered outside the Immigration Rules or asked the Secretary of State to consider any particular matters which were said to justify declining to treat his absence from the UK as a reason for refusing his application notwithstanding that he did not meet the condition set out in rule 334(i) of the Immigration Rules.

This, in my view, is fatal to the appellant’s argument. The principle against fettering discretion requires a decision-maker to be willing to listen to and consider arguments for not acting in accordance with a rule or other established policy. But it does not require the decision-maker to cast around for possible reasons to do so. That is clear from the nature of the principle which, as the British Oxygen case shows, is a requirement founded in procedural fairness that the decision-maker must not “shut his ears” to an application or refuse to “listen to anyone with something new to say”. It is also confirmed by R (Behary and Ullah) v Secretary of State for the Home Department [2016] EWCA Civ 702, para 39, where the Court of Appeal held that there was no obligation on the Home Office to consider whether to grant leave to remain outside the Immigration Rules in the absence of an express request to do so or, possibly, of facts which were so striking that it would be irrational not to consider the grant of leave outside the Rules even in the absence of any request. In my view, the same applies to the grant of refugee status.

Turning to a further submission made on this ground of appeal, I think it impossible to say that there were circumstances which made it irrational for the Secretary of State not to act outside the Rules in this case, even in the absence of a request to do so. To the contrary, at the time when the Secretary of State was called upon to make the decision on AB’s application, it seems to me that she did not have a sufficient basis on which to exercise a discretion to grant him refugee status in the UK notwithstanding his absence from the country. As mentioned earlier, AB had not informed the Secretary of State where he was, what travel document issued by a friendly state he had in his possession or what rights were conferred by that document, nor when (or indeed whether) he intended to return to the UK. In these circumstances, there was no information to suggest that refusing his application would result in him being required to go to a country in which his life or freedom would be threatened (see para 334(v) of the Immigration Rules).

I would therefore conclude that there was no duty on the Secretary of State in this case to consider whether to grant asylum to AB outside the Immigration Rules and that her failure to do so was not irrational or unlawful.

Nor do I read the decision letter of 21 September 2012 as expressing any refusal to consider any future application for asylum which AB might make, whether under or outside the Rules. On the contrary, the second paragraph of the letter (quoted at paragraph 10 above) expressly contemplated the possibility of such an application.

The final strand of the argument under this head was Mr Knafler’s submission that it was unlawful not to allow AB to re-enter the UK in order to pursue his asylum claim. However, AB had chosen to leave the UK without telling the Secretary of State and without a certificate of travel, and he made no attempt to re-enter the country before his exceptional leave to remain expired. In these circumstances AB had no reasonable expectation, let alone a right, that he would be re-admitted to the UK. In any case, the decision letter of 21 September 2012 was not responding to any request to permit AB to return to the UK. Nor did it foreclose the possibility that AB would be allowed back into the country. The letter said only that, “if he intends to return to the United Kingdom, your client will need to satisfy the Immigration Officer at the port of entry that he qualifies for admission.” This left it open to AB to ask whether the Secretary of State would permit him to return to the UK without a UK travel document or to apply for leave to enter the UK, both of which he subsequently did. That request and application were refused but those refusals are not the subject of this case.

I consider the appellant’s arguments to be well founded to the extent, but only to the extent, that the letter dated 21 September 2012 was wrong in stating that, in circumstances where AB was no longer in the UK, a decision on his application for asylum could not be made. The letter should have stated that rule 336 of the Immigration Rules required the Secretary of State to refuse his application as the criterion set out in rule 334(i) was not met. However, AB plainly suffered no disadvantage from the failure to state in terms that his application was refused – that being in any case the practical effect of the decision. Nor, in my view, can the Secretary of State be faulted for not acting outside the Rules.

For these reasons, I would dismiss the appeal.

I agree.

I also agree.