R on the application of Bam Bahadur Gurung (and 7 others) v SSHD [2024] JR-2023-LON-002796

Decision of the President of the Immigration and Asylum Chamber and UT Judge Keith

President of the Immigration and Asylum Chamber of the Upper Tribunal hands down authoritative decision on the case law and principles to be applied when interpreting the words and meaning of a policy, including when ‘context’ is relevant.

The Applicant in the present case was a Nepali national who worked in Afghanistan as a security guard, privately contracted but guarding the UK and Canadian embassies in Kabul. He was evacuated from Afghanistan by UK Armed Forces on 18 August 2021, in anticipation of the Taliban’s imminent return to power under “Operation Pitting”. He was granted entry clearance and limited leave to remain outside the Immigration Rules as an exceptional gesture of goodwill, in order to facilitate his return to Nepal. The Applicant argued that he was eligible for ILR under the provisions of the Afghan Citizens Resettlement Policy (‘the ACRS’) as a national of a third country but ‘at risk’ as a result of events in Afghanistan.

The case turned on the interpretation and meaning of the ACRS, and the Upper Tribunal’s judgment provides an interesting and detailed analysis of the legal principles on the interpretation of policy as well as a discussion on when the ‘context’ to the policy will be relevant. At paragraph 43 onwards of the decision, the Upper Tribunal set out nine relevant legal principles as follows:

1. As a starting point, interpretation of policy is a matter of law for the court or tribunal, see Kambadzi v SSHD [2011] UKSC 23;
   
   
2. The correct approach to understanding the meaning of a policy is for the court or tribunal to decide the meaning for itself. It is wrong to limit the enquiry of the court or tribunal to the question of whether the meaning which the Respondent has attributed to it is one within the range of reasonable meanings only, see R (O) v SSHD [2016] UKSC 19;
   
   
3. A policy must be interpreted objectively, in accordance with the language used, read as always in its proper context. A policy is not to be read as if it were a statute or contract, see Mandalia v SSHD [2015] UKSC 59;
   
   
4. The views of a third party on the interpretation of a policy are irrelevant. In the present case, the UNHCR had published a ‘Handbook on Resettlement’ in which it commented on the interpretation of the ACRS. This was held to be irrelevant in interpreting the policy;
   
   
5. It is necessary to consider the primary intended readership of a policy, see for example R (Cotter) v National Institute for Health and Care Excellence [2020] EWCA Civ 1037. Where the intended readership is a group of specialists or experts, words in a policy may be ‘terms of art’ in the sense of having specific meanings understood by the primary readership of experts, with knowledge of specialist terminology and practice. Alternatively, where the primary readership is the general public, then the interpretation should focus on the natural and ordinary meaning of a policy’s words, as understood by a reasonable and literate person, see Mahad v ECO [2009] UKSC 16. Although Mahad involved interpreting the Immigration Rules, which are closer to statute in terms of interpretation, that principle could be extrapolated to the present case, see SSHD v JB (Ghana) [2022] EWCA Civ 1392;
   
   In Mahad, the Supreme Court said, the “question of interpretation is what the Secretary of State intended his policy to be”, so that the task of the Court was to discover from the words used, “what the Secretary of State must be taken to have intended …. But that intention is to be discerned objectively from the language used…” That is consistent with considering ‘context’ alongside the purpose of a policy, as the Court of Appeal did in R (MD (Angola) & Ors) v SSHD & Anor [2011] EWCA Civ 1238; and as the Divisional Court did in R (CX1) v Secretary of State for Defence [2024] EWHC 94 (Admin), §§55 to 56, when considering the interpretation of the Afghan Relocations and Assistance Policy.
   
   
6. Material or evidence to which the intended readership of a policy does not have access cannot aid its interpretation. It cannot be right that a court or tribunal is in a better position to interpret a policy than its intended readership at the time a policy operated, merely because the tribunal has the later benefit of reading previously unpublished material;
   
   
7. There is a distinction between ‘context’, in the sense of informing a proper understanding of the interpretation of a policy, and background facts. Context was held to be broad. It included interpreting words and phrases within the context of the policy itself, taking the policy as a whole. It may include how a policy sits alongside other policies and statutory provisions, particularly if the words of a policy are ambiguous. It is also closely linked to the purpose of a policy.
   
   However, said the Tribunal, the scope of context has limits. In particular, the relevance of ‘background facts’ as an interpretative aid should be considered with caution. It is important to identify the proposition which the facts are said to support. Once that proposition is identified, the reader can then appreciate how that proposition aids interpretation of the policy.
   
   
8. The earlier version of a written policy may aid the interpretation of a later version. In particular, the changes to a written policy may provide textual context, explain clarifications to ambiguities and shed light on the Respondent’s intentions in a policy, when objectively understood;
   
   
9. The Tribunal held that there is a distinction to be borne in mind when considering cases of this sort between the proper interpretation of a policy and its application. As set out above, the interpretation of a policy is a matter for the court or tribunal; its application and the judgments which they may entail are a matter for the decision-maker: see in a different context Tesco Stores v Dundee City Council [2012] UKSC 13, which was held to be applicable in the present case. In considering a challenge of the kind before the tribunal, this is a principle which will guide the examination of whether there has been an error of law, or a disagreement in relation to how the evaluations required by the policy have been exercised, but involving no misunderstanding of the policy.

Ultimately, the Tribunal agreed with the SSHD’s interpretation of the policy and concluded that the SSHD’s decision to treat the Applicant’s referral under the ACRS as void was both lawful and rational.

Carine Patry KC acted for the SSHD.