[2025] UKUT 00090 (IAC)

We have considered the legal principles regarding consistency of treatment of those in comparable circumstances, within the context of irrationality. We have regard to what was said in R (Hussain) v SSHD [2012] EWHC 1952 (Admin), specifically §46:

“There is an established principle of public law that “all persons in a similar position should be treated similarly”, see Stanley Burnton J in R (Middlebrook Mushrooms Ltd) v Agricultural Wages Board of England and Wales [2004] EWHC 144 at [74], quoting Lord Donaldson MR in R(Cheung) v Hertfordshire County Council, The Times 4 April 1998. Any discretionary public law power “must not be exercised arbitrarily or with partiality as between individuals or classes potentially affected by it,” see Sedley J in R v MAFF, ex parte Hamble Fisheries [1995] 2 All ER 714 at 722a-b. One reason for that rule is that it provides consistency in decision making, and some certainty about the application of rules.”

Lang J confirmed in KBL v SSHD & Ors [2023] EWHC 87 (Admin), at §87, that:

“Inconsistency, unequal treatment, unfairness, or arbitrariness in public decision-making are contrary to good administration and may lead to a conclusion that a decision is irrational. However, such flaws are not to be treated as free-standing grounds for judicial review.”

However, we also bear in mind her comment at §91 that:

“Where there are divergent decisions in materially the same situations, the Court is required to "consider with the greatest care how such a result can be justified as a matter of law…"

Peter Gibson LJ also made clear in R (Begbie) v Department of Education and Employment [1999] EWCA Civ 2100, at §61 that:

“Where the court is satisfied that a mistake was made by the minister or other person making the statement, the court should be slow to fix the public authority permanently with the consequences of that mistake. That is not to say that a promise made by mistake will never have legal consequences. It may be that a mistaken statement will, even if subsequently sought to be corrected, give rise to a legitimate expectation, whether in the person to whom the statement is made or in others who learnt of it, for example where there has been detrimental reliance on the statement before it was corrected. The court must be alive to the possibility of such unfairness to the individual by the public authority in its conduct as to amount to an abuse of power.”