[2025] UKUT 00090 (IAC)

R (on the application of Gurung) v Secretary of State for the Home Department (ACRS meaning – policy interpretation principles)

Field House,

Breams Buildings

London, EC4A 1WR

Promulgated 27^th September 2024

Before:

THE HON. MR JUSTICE DOVE, PRESIDENT

UPPER TRIBUNAL JUDGE KEITH

Between:

THE KING

on the application of

Bam Bahadur Gurung

Applicant

- and -

The Secretary of State for the Home Department

Respondent

Mr Ali Bandegani and Ella Gunn, Counsel, (instructed by Duncan Lewis Solicitors), for the Applicant

Carine Patry KC

(instructed by the Government Legal Department) for the Respondent

1. Interpretation of a policy is a matter of law for this Tribunal, as confirmed in Kambadzi v SSHD [2011] UKSC 23, at §36.

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, §28).

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, for example, Mandalia v SSHD [2015] UKSC 59, at §31.

4. The views of a third party on the interpretation of a policy are irrelevant.

5. 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.

6. 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 (Mahad v ECO [2009] UKSC 16, at §10).

7. Material or evidence to which the intended readership of a policy does not have access cannot aid its interpretation.

8. There is a distinction between ‘context,’ in the sense of informing a proper understanding of the interpretation of a policy, and background facts. 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. 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.

9. 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 author’s intentions in a policy, when objectively understood.

10. There is an important distinction between the proper interpretation of a policy and its application. 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.

The Afghan Citizens Resettlement Scheme (‘ACRS’)

11. At the heart of the ACRS is the word, “resettlement.”The word takes its colour from, and only makes sense, in the context of ‘risk.’ ‘Risk’ runs throughout the ACRS section of the ARIPS, and the ACRS Guidance.The criteria in the policy are to be understood as applying to those at future risk, not simply those who were at risk in the past.

J U D G M E N T