The Immigration and Asylum Chamber Upper Tribunal recently summarised "the principles on the interpretation of policy".
In R (Bam Bahadur Gurung) v Secretary of State for the Home Department, JR-2023-LON-002796, the tribunal considered the Afghan Citizens Resettlement Scheme and the claim of a Nepalese national evacuated from Afghanistan in 2021. The applicant argued his eligibility under the scheme's Pathway 1, claiming past affiliation with UK efforts.
I'm particularly interested in paras 43-57, “Legal principles - Interpretation of policy”. Rather than me trying to summarise their summary, I suggest interested parties read the 1000-word section for themselves (copied below). The full judgment is available at: https://tribunalsdecisions.service.gov.uk/utiac/jr-2023-lon-002796
The inspiration for this post was a Free Movement article written by Sonia Lenegan, which they shared on the social media platform Bluesky.
Para 43-57 (with hyperlinks added to relevant judgments):
Legal principles - Interpretation of policy
43. We set out a summary of the principles on the interpretation of policy.
44. First, interpretation of a policy is a matter of law for this Tribunal, as confirmed in Kambadzi v SSHD [2011] UKSC 23, at §36. The Supreme Court has also confirmed that courts and tribunals expect government departments to honour their statements of policy. Policy is not law, so it may be departed from if a good reason can be shown.
45. Second, 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, §28).
46. Third, 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, for example, Mandalia v SSHD [2015] UKSC 59, at §31.
47. Fourth, the views of a third party on the interpretation of a policy are irrelevant. In this case, the UNHCR had published a ‘Handbook on Resettlement’ in which it commented on how it interpreted the ACRS. Both representatives accepted that the UNHCR’s view was not relevant.
48. Fifth, it is necessary to consider the primary intended readership of a policy. For example, see 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.
49. 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. The authority for that proposition is Mahad v ECO [2009] UKSC 16, at §10. That case involved interpreting the Immigration Rules. We accept that the principles for interpreting the Immigration Rules, which are closer to statute, may be slightly different to those which apply to the interpretation of a policy. Nevertheless, there can be no logical objection to applying some of the principles in the former, to the latter. This is one such principle, as confirmed in SSHD v JB (Ghana) [2022] EWCA Civ 1392, at §68.
50. 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 the Divisional Court considered in R (CX1) v Secretary of State for Defence [2024] EWHC 94 (Admin), §§55 to 56, when considering the interpretation of ARAP.
51. Sixth, 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.
52. Specifically, in this case, the Respondent distributed to its staff an internal “casework processes” document (B/[304]). Neither party relied on that internal guidance as aiding interpretation of the policy.
53. Seventh, there is a distinction between ‘context,’ in the sense of informing a proper understanding of the interpretation of a policy, and background facts.
54. Context is broad. It includes 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 (discussed for example, by the Court of Appeal in Cotter, at §51). It is also closely linked to the purpose of a policy.
55. However, 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. We say more about this later when we apply this principle in practice.
56. Eighth, the earlier versions 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.
57. Ninth, there is an important 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: this principle can be observed in a different context in Tesco Stores v Dundee City Council [2012] UKSC 13 at §§19 to 21, but is equally applicable here. In considering a challenge of the kind before us 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 involving no misunderstanding of the policy.
To learn more about the Veteran Law Project and my work, you can find me on Bluesky at @charlierad.bsky.social.
