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J9: Grounds of judicial review
RATIONALITY
Question is whether decision is irrational
"[40] I have quoted at some length from these judgments to show how misleading it can be to take out of context a single expression, such as “conspicuous unfairness”, and attempt to elevate it into a free-standing principle of law. The decision in Unilever was unremarkable on its unusual facts, but the reasoning reflects the case law as it then stood. Surprisingly, it does not seem to have been strongly argued (as it surely would be today) that a sufficient representation could be implied from the Revenue’s consistent practice over 20 years (see eg de Smith para 12-021). It seems clear in any event from the context that Simon Brown LJ was not proposing “conspicuous unfairness” as a definitive test of illegality, any more than his contrast with conduct characterised as “a bit rich”. They were simply expressions used to emphasise the extreme nature of the Revenue’s conduct, as related to Lord Diplock’s test. In modern terms, and with respect to Lord Diplock, “irrationality” as a ground of review can surely hold its own without the underpinning of such elusive and subjective concepts as judicial “outrage” (whether by reference to logical or moral standards)." (R (oao Gallaher Group Ltd) v. The Competition and Markets Authority [2018] UKSC 25, Lord Carnwath)
CONSISTENCY
An aspect of rational behaviour
"[24] Whatever the position in European law or under other constitutions or jurisdictions, the domestic law of this country does not recognise equal treatment as a distinct principle of administrative law. Consistency, as Lord Bingham said in the passage relied on by the appellant (para 19 above), is a “generally desirable” objective, but not an absolute rule.
[...]
[26] In the latter case, in an important passage under the heading “Democracy and Equality” ([1999] AC 98, para 9), Lord Hoffmann had emphasised the need to distinguish between equal treatment as a democratic principle and as a justiciable rule of law:
“9. … Their Lordships do not doubt that such a principle is one of the building blocks of democracy and necessarily permeates any democratic constitution. Indeed, their Lordships would go further and say that treating like cases alike and unlike cases differently is a general axiom of rational behaviour. It is, for example, frequently invoked by the courts in proceedings for judicial review as a ground for holding some administrative act to have been irrational: see Professor Jeffrey Jowell QC, Is Equality a Constitutional Principle? (1994) 7 CLP 1, 12-14 and de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed (1995), pp 576-582, paras 13-036 to 13-045.
… Of course persons should be uniformly treated, unless there is some valid reason to treat them differently. But what counts as a valid reason for treating them differently? And, perhaps more important, who is to decide whether the reason is valid or not? Must it always be the courts? The reasons for not treating people uniformly often involve, as they do in this case, questions of social policy on which views may differ. These are questions which the elected representatives of the people have some claim to decide for themselves. The fact that equality of treatment is a general principle of rational behaviour does not entail that it should necessarily be a justiciable principle - that it should always be the judges who have the last word on whether the principle has been observed. In this, as in other areas of constitutional law, sonorous judicial statements of uncontroversial principle often conceal the real problem, which is to mark out the boundary between the powers of the judiciary, the legislature and the executive in deciding how that principle is to be applied.” (see now the current edition of De Smith’s Judicial Review 8th ed (2018) paras 11.061ff)
As that passage makes clear, in domestic administrative law issues of consistency may arise, but generally as aspects of rationality, under Lord Diplock’s familiar tripartite categorisation." (R (oao Gallaher Group Ltd) v. The Competition and Markets Authority [2018] UKSC 25, Lord Carnwath)
"[50] I agree with Lord Carnwath’s analysis of the relevant legal principles. In public law, as in most other areas of law, it is important not unnecessarily to multiply categories. It tends to undermine the coherence of the law by generating a mass of disparate special rules distinct from those applying in public law generally or those which apply to neighbouring categories. To say that a decision-maker must treat persons equally unless there is a reason for treating them differently begs the question what counts as a valid reason for treating them differently. Consistency of treatment is, as Lord Hoffmann observed in Matedeen v Pointu [1999] 1 AC 98, at para 9 “a general axiom of rational behaviour”. The common law principle of equality is usually no more than a particular application of the ordinary requirement of rationality imposed on public authorities. Likewise, to say that the result of the decision must be substantively fair, or at least not “conspicuously” unfair, begs the question by what legal standard the fairness of the decision is to be assessed. Absent a legitimate expectation of a different result arising from the decision-maker’s statements or conduct, a decision which is rationally based on relevant considerations is most unlikely to be unfair in any legally cognisable sense. In the present case nothing that the OFT said or did could have given rise to any other expectation than that it would act rationally. The questions which this appeal poses are (i) whether the OFT acted rationally in giving the assurance to TMR alone in 2008 and in repaying the penalty to TMR alone in 2012; and (ii) if not what are the consequences for Gallaher and Somerfield." (R (oao Gallaher Group Ltd) v. The Competition and Markets Authority [2018] UKSC 25, Lord Sumption)
ERROR OF LAW
Court to correct any error of law
"[112] The common law of judicial review in England and Wales has not stood still in recent years. Starting from the received checklist of justiciable errors set out by Lord Diplock in the CCSU case [1985] AC 374, the courts (as Lord Diplock himself anticipated they would) have developed an issue-sensitive scale of intervention to enable them to perform their constitutional function in an increasingly complex polity. They continue to abstain from merits review – in effect, retaking the decision on the facts – but in appropriate classes of case they will today look very closely at the process by which facts have been ascertained and at the logic of the inferences drawn from them. Beyond this, courts of judicial review have been competent since the decision in Anisminic [1969] 2 AC 147 to correct any error of law whether or not it goes to jurisdiction; and since the coming into effect of the Human Rights Act 1998, errors of law have included failures by the state to act compatibly with the Convention." (R (oao Q) v. Secretary of State for the Home Department [2003] EWCA Civ 364)
Decision must be taken on the correct legal basis
"In my judgment the decision in Anisminic Limited v. Foreign Compensation Commission [1969] 2 AC 147 rendered obsolete the distinction between errors of law on the face of the record and other errors of law by extending the doctrine of ultra vires. Thenceforward it was to be taken that Parliament had only conferred the decision making power on the basis that it was to be exercised on the correct legal basis: a misdirection in law in making the decision therefore rendered the decision ultra vires." (R (oao page) v. Hull University Visitor [1993] AC 682 at 701 )
"[79] While HMRC's skeleton says compliance with the s696(2) obligation is a matter which may be taken into account, a proposition with which we agree, we note the November 2022 decision went further by in effect saying that HMRC were not even going to consider the 7A discretion without knowing the s696(2) figure. That refusal to consider was wrong in our view...
...
[84] We agree with UBS that HMRC's analysis proceeded on a misdirection. To the extent the efficiency arguments pointed in favour of exercising the 7A discretion then the fact the 7A discretion would not remove the NICs liability from UBS did not detract from the efficiency savings advanced. UBS's NICs liability will therefore be determined by the amount on which Mr Wood is ultimately taxed as employment income, irrespective of the amount of income tax that UBS accounted for, or should have accounted for, on the basis of the best estimate which could reasonably be made." (R (oao UBS AG) v. HMRC [2024] UKUT 242 (TCC), Judge Raghavan and Judge Zaman)
Seeking to exercise power that did not exist
"[53] The officers were purporting to exercise a power under regulation 11 of the Police (Conduct) Regulations 2020 which did not exist. That was a material error of law, which vitiated the decisions made. The Defendant submitted that the error of law was not material, as the same decision could properly have been made under other powers. I do not consider that the case of R v Hull University Visitor ex parte Page [1993] AC 682 assists the Defendant, as it was made in a different context. Therefore, Ground 1 succeeds." (R (oao Philpot) v. Commissioner of Police For The Metropolis [2022] EWHC 1852 (Admin))
Power to specify 'how' something should be done does not include power to specify 'what'
"[31] Irrespective of whether the misconception to which I have referred played a part in leading the Secretary of State to include in the guidance the two passages under challenge, I conclude that his inclusion of them went beyond his powers. HOW does not include WHAT. Power to direct HOW administrators should approach the making of investment decisions by reference to non-financial considerations does not include power to direct (in this case for entirely extraneous reasons) WHAT investments they should not make." (Palestine Solidarity v. Secretary of State for Housing [2020] UKSC 16, Lord Wilson)
POWER MUST BE EXERCISED CONSISTENTLY WITH PURPOSE
- Unlawful to reject claim based on expected change in law that has not yet come into force
"That letter tells Customs Officers to treat claims for payment 'as if the legislation were already in place'. In those circumstances, it does not seem to me that the individual decision-makers can be blamed for couching their letters to taxable persons in the language of outright refusal. That policy document simply proceeded on the basis that the legislation would be passed. It was not, in my judgment, simply suggesting that claims should be deferred until Parliament had expressed its will one way or the other. In so doing, it was to that extent an unlawful and ultra vires policy." (R v. CEC ex p. Kay [1996] STC 1500 at 1528, Keene J - Customs were delaying paying claims pending the introduction of a 3 year time limit)
ILLEGALITY
Statutory powers must be exercised to promote the policy and objects of the Act as a whole
"[21]...Apart from the Convention, the company’s submission comes down to a short point: that is, given the existence of a discretion in section 66, it must in the absence of any specific restriction be treated as an unfettered discretion. That to my mind overlooks the basic principle that any statutory discretion must be exercised consistently with the objects and scope of the statutory scheme." (JP Whitter (Water Well Engineers) Ltd v. HMRC [2018] UKSC 31)
“Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act [which] must be determined by construing the Act as a whole … [I]f the Minister … so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court.” (Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997)
No statutory discretion is unfettered
"[23]...Section 3(1) provides that the scheme regulations permitted by section 1(1) may make such provision as the Secretary of State “considers appropriate”. But the power cannot be as broad as that. No statutory discretion is unfettered. When we read further into section 3, we at once find a helpful signpost. For subsection (2)(a) states that the permitted provision includes, in particular, provision as to any of the matters specified in Schedule 3. It is only a signpost because the words “in particular” mean that the matters specified in Schedule 3 are not the only matters which can be the subject of provision in the regulations. But it valuably identifies the matters which, in particular, Parliament had in mind." (Palestine Solidarity v. Secretary of State for Housing [2020] UKSC 16, Lord Wilson)
- Fact that exercising discretion would be consistent with policy does not mean not exercising discretion inconsistent with policy
"[76] UBS also argues that exercising the 7A discretion would be entirely consistent with the purpose of the discretion. Again we do not rule that out but the point is insufficient to make out UBS's ground of claim by establishing that refusal of the discretion would be inconsistent with the object of the statute." (R (oao UBS AG) v. HMRC [2024] UKUT 242 (TCC), Judge Raghavan and Judge Zaman)
RELEVANT AND IRRELEVANT CONSIDERATIONS
HMRC must take into account all relevant considerations and exclude irrelevant considerations
"[32] The assessment and payment of fees to a legal representative who has replaced another at the sentencing stage of criminal proceedings was, self-evidently, a material consideration which should have been taken into account by the rule making body which introduced amendments to the 2005 Rules by the 2011 Rules. It has been frankly acknowledged that this situation was not adverted to at the time of the making of the 2011 Rules. There was therefore an admitted failure to have regard to a relevant factor and, on that account alone, judicial review will lie of the decision to introduce the 2011 Rules without making provision for the payment of fees which would properly reflect the preparatory work which a legal representative, new to the case at the sentencing stage, would have to undertake." (Re Brownlee [2014] UKSC 4, Lord Kerr)
"[59] In deciding whether or not to agree to a request for a reference under regulation 32(2), the police pension authority must, of course, act reasonably, taking into account relevant considerations and excluding any irrelevant matters." (R (Boskovic v. Chief Constable of Staffordshire [2019] EWCA Civ 676, Barker, Davies LJJ)
- Omitted relevant factor must be material (might have made a difference)
"[62] Accordingly, although the Secretary of State was in error in failing to take account of the appellants' case on prejudice, it was not an error of any consequence and the decision should in my view be allowed to stand despite it." (R (oao Chichvarkin) v. Secretary of State for Home Department [2011] EWCA Civ 91, Richards, Mummery, Longmore LJJJ)
"[61]...Helpfully, on the second day of argument, [the taxpayer] drew the Court's attention to the Court of Appeal's decision in Bolton Metropolitan Borough Council v Secretary of State for the Environment and Greater Manchester Waste Disposal Authority (1991) 61 P.& C.R. 343 at p.352-353, in which Glidewell LJ set out (amongst other things) the following statements of principle:
'2. The decision maker ought to take into account a matter which might cause him to reach a different conclusion to that which he would reach if he did not take it into account. Such a matter is relevant to his decision making process. By the verb 'might' I mean where there is a real possibility that he would reach a different conclusion if he did take that consideration into account.
[…]
6. If the judge concludes that the matter was 'fundamental to the decision' or that it is clear that there is a real possibility that the consideration of the matter would have made a difference to the decision, he is thus enabled to hold that the decision was not validly made.'
Drawing on these statements of principle by analogy, it was submitted by [the taxpayer], and accepted and averred by [HMRC], that I should consider that a matter is 'material' if 'there is a real possibility that the consideration of the matter would have made a difference to the decision'." (R (oao Airline Placement Limited v. HMRC [2023] EWHC 1191 (Admin), Constable J)
- Irrelevant matter must have played a part in the decision
"[67] Where a decision-maker has taken a legally irrelevant factor into account when making his decision, the normal principle is that the decision is liable to be held to be invalid unless the factor played no significant part in the decision-making exercise. Thus, in Simplex GE (Holdings) Ltd v Secretary of State for the Environment (1989) 57 P&CR 306, 325-6, Purchas LJ (with whom the other two members of the Court of Appeal agreed) approved an observation of Forbes J in R v Rochdale Borough Council ex p Cromer Ring Mill Ltd [1982] 3 All ER 761, 766-7, explaining that a decision would not be set aside where the irrelevant factor was 'insignificant or insubstantial', as opposed to a case where the irrelevant factor's 'influence was substantial'." (R (oao FDA) v. Secretary of State for Work and Pensions [2012] EWCA Civ 332)
- Burden on HMRC to show that irrelevant factor played no significant part in decision making
"[69] It appears to me that that is a theoretical point, at least in this case, because, if the Secretary of State cannot succeed in showing that the irrelevant factor was not a significant factor in his thinking or that he would have selected CPI as the relevant index anyway, it is hard to see how he could hope to persuade the court that there would be no point in setting aside the decision and requiring it to be reconsidered." (R (oao FDA) v. Secretary of State for Work and Pensions [2012] EWCA Civ 332)
Relevance is a matter of law, weight is a matter of judgment
"[42] ... In Tesco Lord Hoffmann pointed out that the question of whether something is a material consideration is a question of law: p 780." (R (oao Wright) v. Resilient Energy Severndale Ltd [2019] UKSC 53)
"[54] In Tesco (above) Lord Hoffmann pointed out (780F-G) that the law has always made “a clear distinction between the question of whether something is a material consideration and the weight which it should be given”. The former is a question of law; the latter is a matter for the planning judgement of the planning authority. Accordingly, a failure by a planning authority to have regard to relevant guidance as a material planning consideration would be an error of law. A decision, after considering the guidance, not to follow it, would (absent another ground of challenge in administrative law) be a matter of planning judgement, in which the courts have no role." (Aberdeen City and Shire Strategic Development Planning Authority v. Elsick Development Company Limited [2017] UKSC 66)
No relief if decision would inevitably have been the same
"[68] Even where the irrelevant factor played a significant or substantial part in the decision-maker's thinking, the decision may, exceptionally, still be upheld, provided that the court is satisfied that it is clear that, even without the irrelevant factor, the decision-maker would have reached the same conclusion. Thus, in Simplex GE (1989) 57 P&CR 306, 326, Purchas LJ approved the following passage in the judgment of May LJ in R v Broadcasting Complaints Commission ex p Owen [1985] 1 QB 1153, 1177:
'Where the reasons given by a statutory body for taking ... a particular course of action are not mixed and can clearly be disentangled, but where the court is quite satisfied that even though one reason may be bad in law, nevertheless the statutory body would have reached precisely the same decision on the other valid reasons, then this court will not interfere by way of judicial review.'
In Smith v North East Derbyshire PCT [2006] 1 WLR 3315, para 10, (a different) May LJ said this:
'Probability is not enough. The defendants would have to show that the decision would inevitably have been the same and the court must not unconsciously stray from its proper province of reviewing the propriety of the decision making process into the forbidden territory of evaluating the substantial merits of the decision.'
(See also per Keene LJ at [2006] 1 WLR 3315, para 16, as well as Simplex 57 P&CR 306, 327 and 329, and R v Secretary of State for the Environment ex p Brent LBC [1982] QB 593, 646.)" (R (oao FDA) v. Secretary of State for Work and Pensions [2012] EWCA Civ 332)
- High hurdle
"[81] In all these circumstances, while acknowledging the high hurdle which has to be crossed by a decision-maker before he can persuade the court that his decision would have been the same if he had ignored a factor which he illegitimately had taken into account, I am satisfied that that hurdle would be crossed in the present case. It seems to me that the decision to use CPI as the index by reference to which the 2011 up-rating should be effected would certainly have been made by the Secretary of State even if he had put out of his mind any consideration of the benefit to the national economy of that decision." (R (oao FDA) v. Secretary of State for Work and Pensions [2012] EWCA Civ 332)
Legitimate expectation is relevant factor
"[45] There is a further point. In Bibi, Schiemann LJ said that an authority is under a duty to consider a legitimate expectation in its decision making process. He said:
"49. Whereas in R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213 it was common ground that the authority had given consideration to the promises it had made, in the present cases, that is not so. The authority in its decision making process has simply not acknowledged that the promises were a relevant consideration in coming to a conclusion as to whether they should be honoured and if not what, if anything, should be done to assuage the disappointed expectations.
. . .
51. The law requires that any legitimate expectation be properly taken into account in the decision making process. It has not been in the present case and therefore the authority has acted unlawfully."
[46] The Board agrees. Where an authority is considering whether to act inconsistently with a representation or promise which it has made and which has given rise to a legitimate expectation, good administration as well as elementary fairness demands that it takes into account the fact that the proposed act will amount to a breach of the promise. Put in public law terms, the promise and the fact that the proposed act will amount to a breach of it are relevant factors which must be taken into account." (Paponette v. Attorney General of Trinidad and Tobago [2010] UKPC 32)
"[81] As we have seen, in 2006 the GMC was aware, at the very least, that over the years its officials had routinely made statements about the acceptability of the PMQs which had never been qualified by stating that the policy was subject to change or variation at any time. Nevertheless it appears that in taking these decisions in 2006 and again in 2010 no consideration was given to whether it was necessary to introduce the new rules with immediate effect or to the consequences of doing so. This in itself seems to me sufficient to lead to the conclusion that the decision to apply these rules to the appellant should be quashed. At the very least, the GMC should have taken account of the impact of its decision to depart from its previous policy with immediate effect on the appellant and anyone else who received a similar specific assurance. It should have done so before deciding whether to change course. Failure to do so vitiates the decision on Wednesbury grounds. This is the first category of case considered by the Court of Appeal in Coughlan (at para. 57). Similarly in R. (Bibi) v Newham Borough Council [2002] 1 WLR 237, the failure of the local authority properly to take account in its decision making process of the legitimate expectations to which it had given rise many years previously led to the conclusion on Wednesbury principles that it had acted unlawfully (at paras. 49-51). By the same token, the failure of the GMC to take account of the impact of its new policy on those currently pursuing such courses vitiates its decision." (R (oao Patel) v. GMRC [2013] EWCA Civ 327)
"[82(vi)] To justify frustration of a substantive legitimate expectation, the decision maker must have taken into account as a relevant consideration the undertaking and the fact that it will be frustrated: Paponette [45]-[46]." (R (oao RD v. Worcestershire CC [2019] EWHC 449 (Admin), Nicklin J)
"It is right that the commissioners' representations cannot be construed so as to override the will of Parliament. If Parliament were to legislate in such a way as to leave the commissioners no discretion but rather to oblige them to depart from their representations to the opticians' organisations, then that expression of Parliament's will must prevail, subject to any challenge on the basis of Community law. On the other hand, any such future legislation which may be passed may leave the commissioners some discretion as to making concessions in appropriate cases. In exercising any such discretion the commissioners would almost certainly have to take into account the existence of their representations already referred to." (R v. CEC ex p. Kay & Co Ltd [1996] STC 1500 at 1528, Keene J)
New evidence
- Court considering new evidence rather than requiring a new decision and claim
"[75] I therefore accept, as submitted by the Trust that although HMRC were correct to say the later explanatory statement of Mr Dunmore was not available to the decision-maker, it must be considered by the Court. In my judgement firstly, it is not on its face, inconsistent with his first, admittedly non-expert, statement that did not mention supply but spoke of purchase. It is not a necessary construction of that statement that he was asserting in 2019 that at the time of supply (whether delivery or payment) the intention was for a non-business use of the Linacs. Accordingly, this is different from a case where wholly new material is put before the Court. As noted, a statement had already been made by the Trust, in the letter of November 2020, before HMRC's Decision Letter, in March 2021, that they believed they were within the Concession, and that they were aware that the time of supply was the relevant point, saying in terms: "whether or not the recipient of [the relevant supply] was entitled to deduct depended upon its intention at the time of supply". Against this background, the judicial review evidence can be seen as seeking to explain a position the basis for which had already been indicated before the final decision.
[76] Further, and in any event, this is not a case where it would be just to refuse to consider the material in support of the judicial review. The case law is clear (see for example also the cases set out in The Administrative Court Judicial Review Guide 2023 paragraph 7.11.4) that there is no hard and fast rule. It is indeed generally better if judicial review proceedings are not treated as "rolling" or "evolving" and it is simpler and more cost-effective to avoid looking at post-decision material, procedural flexibility is essential in order to do justice between the parties. This is one of those cases.
[77] This is a case in which it would be unjust to require the Claimant to request a further decision, in circumstances where HMRC indicate that, in the face of the Claimant's judicial review materials, they nonetheless maintain their substantive decision refusing to grant relief under the Concession. I have said that no evidence has been put forward to counter the significant evidential material from the Trust supporting their case. Rather HMRC sought to whittle away the effect of the Trust's evidence suggesting, in reality it could not be relied upon because in their submission it was wholly different from what was said before. That is a point that can be considered, by the Court, and appropriate weight given. I have already said that I do not accept that the two statements read properly, are mutually inconsistent." (R (oao Royal Surrey NHS Foundation Trust) v. HMRC [2023] EWHC 2354, Foster J)
UNLAWFULLY FETTERING DISCRETION
Decision-maker can have policy but must be willing to consider each case on its own merits
"[56] A person upon whom a discretionary power has been conferred:
(1) must exercise it on each occasion in the light of the circumstances at the time;
(2) cannot fetter its exercise in the future by committing himself now as to the way it will be exercised in the future, nor by ruling out of consideration factors which may then be relevant;
(3) may nevertheless develop and apply a policy as to the approach which he will adopt in the generality of cases, as long as it does not preclude departure from the policy or taking into account circumstances which are relevant to the particular case; if such an inflexible and invariable policy is adopted, both the policy and the decisions taken pursuant to it will be unlawful.
[57] The relationship between fettering discretion and the adoption of policy is further elucidated in R (West Berkshire DC) v. Secretary of State for Communities and Local Government [2016] 1 WLR 3923, per Laws LJ at §§16-30, where he identified two relevant principles:
(1) The exercise of public discretionary power requires the decision maker to bring his mind to bear on every case; he cannot blindly follow a pre-existing policy. This is the rule against fettering discretion.
(2) But a policy maker is entitled to express his policy in unqualified terms. He is not required to spell out the legal fact that the application of policy must allow for the possibility of exceptions. A general policy that does not, on its face, admit of exceptions will be permitted in most circumstances. The proof of fettering will be in the willingness to entertain exceptions to the policy, rather than in the words of the policy itself. This is the liberty to express policy without acknowledging exceptions. There is no requirement for a policy to state expressly that it must be applied consistently with the rule against fettering discretion. A policy may, but need not, incorporate exceptions as part of the policy.
Ultimately, a public authority may adopt a policy to guide the exercise of its discretion, provided always that it is prepared to listen to someone with something new to say: British Oxygen Co Ltd v. Board of Trade [1971] AC 610. Any policy adopted by a public authority has to be applied as "not a rule but a guide": R (Sainsbury's Supermarkets Ltd) v. First Secretary of State [2005] EWCA Civ 520, per Sedley LJ at §16." (R (oao MAS Group Holdings Limited) v. Secretary of State for Environment, Food and Rural Affairs [2019] EWHC 158 (Admin), Morris J)
Required to consider arguments put, but not required to cast around for reasons
"This, in my view, is fatal to the appellant's argument. The principle against fettering discretion requires a decision-maker to be willing to listen to and consider arguments for not acting in accordance with a rule or other established policy. But it does not require the decision-maker to cast around for possible reasons to do so. That is clear from the nature of the principle which, as the British Oxygen case shows, is a requirement founded in procedural fairness that the decision-maker must not "shut his ears" to an application or refuse to "listen to anyone with something new to say". It is also confirmed by R (Behary and Ullah) v Secretary of State for the Home Department [2016] EWCA Civ 702, para 39, where the Court of Appeal held that there was no obligation on the Home Office to consider whether to grant leave to remain outside the Immigration Rules in the absence of an express request to do so or, possibly, of facts which were so striking that it would be irrational not to consider the grant of leave outside the Rules even in the absence of any request. In my view, the same applies to the grant of refugee status." (R (oao AB) v. Secretary of State for the Home Department [2018] EWCA Civ 383, Leggatt LJ)