- Supreme Court decides the standards for judicial review of public policies (R v SSHD, ex parte A, and BF (Eritrea))
- What are the practical implications of these cases?
- What was the background?
- What did the court decide?
- Case details
Immigration analysis: On 30 July 2021, the Supreme Court, of the same constitution, handed down two important decisions. In both, it was affirmed that when judicially reviewing the content of a policy document or statement of practice the court must ask whether the policy authorises, positively approves, or encourages unlawful conduct by those to whom it is directed. This narrow standard for court intervention, derived from Gillick v West Norfolk and Wisbech Area Health Authority  AC 112, was found to be supported by the role of policies in the law, and the view that a more demanding test would be contrary to the public interest. In ex parte A it was held that if there is no obligation in public law for an authority to promulgate a policy, and no requirement that it be a detailed and comprehensive statement of law, it cannot be struck down by a court for failing to meet that standard. In BF (Eritrea), applying Gillick, it was further held that there was no obligation on the promulgators of policy guidance to remove the risk of a misapplication of the law. Written by Zoe Bantleman, barrister at Richmond Chambers and case note editor of the Journal of Immigration, Asylum and Nationality Law.
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