Home > Cases > Nadarajah & Abdi v SSHD [2005] EWCA Civ 1361

Ashley Underwood QC (who joined Landmark Chambers on 1 February 2006) acted for the Secretary of State for the Home Department in an appeal in the Court of Appeal involving 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.

The Court of Appeal has held that the Secretary of State is entitled to change a policy and to apply his changed policy without breaching the legitimate expectations of those who had applied prior to the change. The doctrine of legitimate expectation required a public body to apply its policies except where a departure from them would not be disproportionate. In deciding whether a departure would be “disproportionate” the Court takes into account factors as those relied upon by the Secretary of State in this case, including whether the applicant did anything in reliance on his legitimate expectations.

The appeal concerned a Tamil from Sri Lanka (the Claimant) who claimed asylum in this country. He was married in 1991; his wife is also a Tamil. In 1995 he travelled to Germany and claimed asylum there. His claim for asylum was rejected. What then happened was disputed. The Claimant stated that he voluntarily returned to Sri Lanka, where he was imprisoned and tortured and that subsequently his wife procured his release. Following his release he fled to this country. The Secretary of State believed that the Claimant had never left Germany, but simply went to ground there. He further believed that the Claimant then illegally 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 but it was discovered that he had done so 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 Aisegeur [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).”

Commenting on the judgment, Ashley Underwood QC stated that “this judgment is an important development and gives clarification to the principle of legitimate expectation”.

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