Abdi v Secretary of State for the Home Department

Factual and Procedural Background

This opinion concerns two appeals involving issues under Article 8 of the European Convention on Human Rights ("ECHR"), the Secretary of State's Third Country Family Links Policy ("the Family Links Policy"), and the legal principle of legitimate expectation. In both cases, the Secretary of State issued certificates under section 72(2)(a) of the Immigration and Asylum Act 1999 ("the 1999 Act"), certifying that the appellants' claims of Article 8 violations were manifestly ill-founded, thereby preventing in-country appeals against removal or deportation decisions.

The first appeal, referred to as Nadarajah, relates to a Tamil national from Sri Lanka who claimed asylum in the United Kingdom after previous asylum claims in Germany were rejected and who was subject to removal to Germany as a safe third country. The appellant's wife was in the UK with an outstanding asylum appeal. The appellant challenged the Secretary of State's refusal to give substantive consideration to his asylum claim in the UK, the issuance of the s.72(2)(a) certificate, and his detention. The certificate and detention issues were resolved, leaving the substantive consideration of the Family Links Policy as the main issue.

The second appeal, referred to as Abdi, involves a Somali national whose identity and date of birth were disputed. The appellant claimed to be a minor child of a refugee residing in the UK, thus potentially engaging the Family Links Policy. The Secretary of State disputed the appellant's claimed identity and age based on genuine Italian-issued documents, and certified the claim under s.72(2)(a) that removal to Italy would not violate Article 8 rights. The appellant challenged the certification and relied on the Family Links Policy and legitimate expectation arguments.

Both appeals were heard with permission granted, and issues relating to the Family Links Policy and legitimate expectation were central to the proceedings.

Legal Issues Presented

1. Whether the Secretary of State was entitled to issue certificates under s.72(2)(a) of the 1999 Act certifying the appellants' Article 8 claims as manifestly ill-founded, thereby preventing in-country appeals.
2. Whether the Family Links Policy applied to the appellants, particularly concerning the interpretation of "asylum-seeker" and the presence of family members in the UK.
3. Whether the appellants had an enforceable legitimate expectation that the Family Links Policy would be applied to their cases as originally formulated.
4. Whether the Secretary of State's decisions were lawful, rational, and proportionate in light of the appellants' circumstances and Article 8 rights.
5. Whether the detention of the appellant in Nadarajah was lawful.

Arguments of the Parties

Appellant's Arguments

• In Abdi, the appellant contended that the Secretary of State failed properly to investigate her date of birth and identity, and that the Family Links Policy should apply to her as a minor child of a refugee in the UK.
• The appellant in Abdi argued that the Secretary of State's certification under s.72(2)(a) was irrational and unlawful, and that her Article 8 rights would be violated by removal to Italy.
• In Nadarajah, the appellant contended that the Secretary of State misinterpreted the Family Links Policy by excluding his wife from the definition of "asylum-seeker" due to her outstanding asylum appeal, and that this misinterpretation led to a failure to apply the policy in his favor.
• The appellant in Nadarajah argued that he had a legitimate expectation that the Family Links Policy, as originally formulated and correctly construed by the lower court, would be applied to his case, entitling him to substantive consideration of his asylum claim in the UK.
• Both appellants challenged the lawfulness and proportionality of the Secretary of State's decisions, relying on Article 8 ECHR protections and the principle of legitimate expectation.

Secretary of State's Arguments

• The Secretary of State argued that in Abdi the decision as to the appellant's date of birth was rational and supported by thorough investigation and genuine documents, and that the appellant's deception undermined her claim.
• It was submitted that the Family Links Policy did not apply to the appellant in Abdi because she was not a minor child entitled to substantive consideration under the policy, and that the certificate under s.72(2)(a) was properly issued.
• In Nadarajah, the Secretary of State accepted the correct interpretation of "asylum-seeker" to include persons with outstanding appeals but contended that the revised Family Links Policy, which excluded appellants with refused asylum claims pending appeal, applied lawfully.
• The Secretary of State maintained that there was no abuse of power or legitimate expectation in applying the revised policy retrospectively and that the appellant in Nadarajah had no knowledge of the policy at the time of the decision.
• It was contended that the detention of the appellant in Nadarajah was unlawful due to failure to follow the Secretary of State's own policy regarding judicial review applications.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully analyzed the facts and legal principles underpinning the Secretary of State’s decisions in both appeals. It noted that the certificates issued under s.72(2)(a) of the 1999 Act function as a screening mechanism to prevent in-country appeals when claims are manifestly unfounded, a standard less than a full merits review but requiring rational and conscientious satisfaction that the claim would clearly fail.

In Nadarajah, the court accepted the lower court’s finding that the Secretary of State had misinterpreted the Family Links Policy by excluding persons with outstanding asylum appeals from the definition of "asylum-seeker." However, the court held that the revised Family Links Policy, which explicitly excluded such persons, was to be applied going forward. Since the appellant had no right to have his claim reconsidered under the original policy, quashing the decision would not produce a different outcome. The court also found that the Secretary of State’s refusal to apply the original policy did not constitute an abuse of power or a breach of legitimate expectation, given the appellant’s lack of knowledge of the policy at the time and the Secretary of State’s consistent application of his interpretation.

Regarding detention, the court found that the appellant’s detention was unlawful because it was contrary to the Secretary of State’s own policy requiring time to be allowed for judicial review applications before removal.

In Abdi, the court rejected the appellant’s contention that the Secretary of State’s conclusion on her date of birth was irrational. The court emphasized the thorough investigation conducted by the Secretary of State and the genuine nature of the Italian documents. The appellant’s inconsistent and deceptive statements undermined her credibility. The court agreed with the lower court’s conclusion that even if the appellant’s claimed identity and age were accepted, removal to Italy would not breach Article 8 because the interference with family life was justified by the need for effective immigration control and proportionality.

The court addressed the legitimate expectation arguments, acknowledging the general legal principles that public authorities must act fairly and consistently with their stated policies or promises unless there is good reason to depart. The court reviewed leading authorities on legitimate expectation, emphasizing that the doctrine is rooted in good administration and abuse of power principles, balancing fairness to individuals against overriding public interests. It rejected the appellants’ claims to enforce the Family Links Policy as originally formulated, concluding that no abuse of power or unfairness arose from the Secretary of State’s application of the revised policy or his consistent interpretation.

Overall, the court applied established legal principles on Article 8, immigration control, certification under the 1999 Act, and legitimate expectation, finding the Secretary of State’s decisions lawful, rational, and proportionate in both appeals.

Holding and Implications

The court dismissed both appeals.

In Abdi, the court held that the Secretary of State’s certification under s.72(2)(a) was lawful and that removal to Italy did not violate Article 8 rights, given the appellant’s lack of entitlement under the Family Links Policy and the appellant’s own deception.

In Nadarajah, although the Secretary of State had misinterpreted the Family Links Policy, the appellant had no right to have his claim reconsidered under the original policy and was not entitled to enforce a legitimate expectation to that effect. The revised policy, lawfully applied, excluded him. The appellant’s detention was unlawful but did not affect the substantive appeal.

The decisions confirm the Secretary of State’s discretion in immigration control matters, the proper application of s.72(2)(a) certification as a screening tool, and the limited scope of legitimate expectation in immigration policy enforcement. No new precedent altering the established balance between immigration control and human rights protections was established.