I have come across four secret Home Office policies since I returned at the start of September. Normally the Home Office has been quite good at disclosing the policies that officials apply to cases. There is a large section on the BIA website devoted to this. Legal challenges in the past, such as Rashid, exposed the existence of secret policies, but these had been concealed through gross incompetence rather than conspiracy. Probably.
These new ones are secret because the Home Office has deliberately concealed their existence. The non-disclosure of the first one in particular is quite shocking and is the subject of a number of legal proceedings now. This is because a legal case can win where it is shown that the Home Office have not followed their own policy. It is made rather difficult to win where one doesn’t even know the policy exists, never mind what it says. Is the Home Office, then, concealing these policies so that claimants cannot win cases when in fact, in law, they should win them? Is this a gross abuse of process? Answers on postcards, please.
1. Presumption of detention in deportation cases. This policy existed since April 2006 and is entirely in conflict with the declared policy of a presumption of liberty in all cases. There are several test cases going forward now. Those detained under this policy (a LOT of people) may have quite considerable claims for compensation for unlawful detention.
2. Effect of the House of Lords cases of EB (Kosovo), Chikwamba and Beuko-Betts, covered earlier on this blog. These judgments necessitate a radical re-think about ECHR Article 8 cases by immigration lawyers, judges and the Home Office. Are individual officials following Home Office policy on this? There’s no way of knowing, as we don’t know what the policy is.
3. How (or maybe whether) asylum support should be continued while an appeal is pending, even in certain cases were it is out of time, pending an appeal to the Asylum Support Tribunal. Again, there is currently no way of checking whether this policy is being applied as we don’t know what it says. presumably it is more generous than the law strictly requires, though, otherwise the policy would not exist.
4. How to treat cases where there was a delay in decision such that case was outstanding on 1 January 2001 and at that time there was a four years ELR policy that applied to the country from which the person came. This policy may or may not be in force at the moment, apparently, and it is the very belated Home Office response to R(S) (Afghanistan).
The Home Office never ceases to amaze me.