Secretary of State for the Home Department v Rashid [2005] E...

Facts

• Rashid, an Iraqi Kurd, applied for asylum in the United Kingdom.
• His application was rejected by the Home Office.
• At the time, there existed an unpublished Home Office policy acknowledging the risk of persecution for Iraqi Kurds returned to specific regions of Iraq.
• This unpublished policy was not applied consistently, leading to some similarly situated Iraqi Kurds being granted asylum while others, including Rashid, were denied.
• Rashid challenged the refusal of his asylum claim on the grounds of unfairness due to inconsistent policy application.

Issues

1. Whether the inconsistent application of an unpublished Home Office policy constituted procedural unfairness toward Rashid.
2. Whether the breach of such procedural fairness could create a legitimate expectation on the part of Rashid that the policy would be applied to him.
3. Whether public authorities are required to apply existing policies consistently, regardless of whether those policies are published.

Decision

• The Court of Appeal held that the Home Office’s failure to apply its unpublished policy consistently amounted to unfairness and a breach of procedural fairness.
• It was determined that Rashid had a legitimate expectation that the policy would be applied to his claim.
• The inconsistent application of the policy rendered the decision-making process irrational and arbitrary.
• The Court stressed that even unpublished policies must be applied consistently unless there are cogent reasons for departure.

Legal Principles

• Legitimate expectation can arise not only from explicit promises or published policies, but also from the consistent application of an unpublished policy.
• Procedural fairness in administrative law requires public authorities to act fairly and rationally, avoiding arbitrary or inconsistent decisions.
• Any departure from an established, consistently applied policy (even if unpublished) must be justified by clear and cogent reasons.
• The duty to act fairly encompasses ensuring equal treatment among similarly situated individuals and upholds public trust in administrative decision-making.

Conclusion

The Court of Appeal in Secretary of State for the Home Department v Rashid [2005] EWCA Civ 744 held that the inconsistent application of an unpublished policy constituted procedural unfairness, giving rise to a legitimate expectation for consistent policy application and reinforcing the broader principles of fairness and rationality in administrative law.