Legitimate expectation

By On 2 May 2008 · 4 Comments · In Immigration rules

The Government has lost yet again. I’m beginning to feel embarrassed for them. These repeated legal defeats smack of a basic failure to comprehend the idea of rule of law. That’s OK with individual politicians, of whom you can’t generally expect very much, but it is deeply worrying with a whole Government equipped as it is with processes and procedures, checks and balances, consultations, civil servants and legal advisers. I’m interested mainly in the immigration field, where the HSMP case, the overseas marriage rules case and now the junior doctors case immediately come to mind, but what about the repeated knock-backs on terrorism, torture and corruption?

Anyway, the House of Lords ruled against the Government on an attempt at a back-door change to the immigration rules for overseas junior doctors. The case was brought by Bapio Action Ltd, a company formed by the British Association of Physicians of Indian Origin to represent the interests of junior overseas doctors who had been lured to the UK by promises of a career here but after arrival were being deprived of an opportunity to apply for jobs.

The judgments differ considerably in their reasoning. Lord Bingham holds that the email sent out by a Home Office official was an unlawful exercise of the power to regulate immigration status that can only be exercised by the Secretary of State (and is rather critical of the attempt to affect so many lives by so such informal, ill-considered means). Lord Carswell agrees with him, more or less. Lord Mance disagrees and decides that the email did not directly affect immigration status, but that the email was a breach of legitimate expectation. Lord Rodger agrees with Lord Mance. Lord Scott disagrees with all of them and allows the Home Office appeal.

So, it’s a score draw between the Bingham reasoning and the Mance reasoning, which are really quite radically different. Whilst I love reading the differing judgments of the Lords, this kind of stalemate makes a strong case for single judgments. Perhaps when they become the Supreme Court.

The most interesting approach from an immigration lawyer’s perspective is that of Lords Mance and Rodger. There have been several cases recently which have been allowed on the basis of legitimate expectation. These all share a common feature. A group of immigrants have been led to expect a certain outcome, but the Home Office changes its mind and pulls the rug out from under their feet. This ought to be a lesson to the Home Office about such unfairness, but somehow I don’t think anyone at Home Office HQ is listening. The ambiguity in the reasoning is also something of a let off as well.

Unfortunately, it seems unlikely that this judgment will be much use to those affected by immigration rule 320(7B). The Court of Appeal case of Odelola, unless overturned, would appear to scupper that. It effectively permits changes to the immigration rules even after an application has been submitted but before it has been decided, as long as there was no express promise not to change the rules. This does seem at odds with other recent case law, so there might be some hope for it being overturned.

 
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4 Responses to Legitimate expectation

  1. Presently Anonymous says:
    12 May 2009 at 1:43 pm

    Hi freemovement

    Thinking about running LE argument in minster of religion case. Just wondered if you had nany thoughts.

    They came on religious worker visa in 07. Switched in-time to MOR for 1yr without having to provide IELTS certificate at level 6. Applied for extsnion as MOR but rejected for not being able to provide IELTS certificate. He has none and has never had to provide one. He as come to UK on and off since 2004 (mixture of visitor, religious worker and MOR).

    Perhaps he has been lucky and thought that his case has been excepted for reasons unknown to him. He thought that language requirement has been disapplied for him because he has been in and out of UK since 2004 and thought he must fall into some sort of concession category. I say LE because he expected language requirement to be disapplied again to him again.

    SSHD’s previous disapplication is now being held to his detriment. He has not been on notice to study for level 6. He has passed Life in UK Test in the interim to prove that he has some knowledge of life and language for UK. This may not assuage an Immigration Judge though. However, it is surely in the public interest that good administration, fairness and consistency in decision-making prevails.

    Found a case called HS (India) 2008 EWCA. Interesting reading. Similar facts to an extent however Appellant applied for MOR and got religious worker in non-pastoral role instead. He didnt notice the mistake. Before expiry, he applied to ‘extend’ his stay as MOR which was refused. On reconsideration, Senior Immigration Judge said if he had entered UK as MOR or was applying for extension of ‘actual MOR visa’ rather than religious worker and he had not been required to provide IELTS cert on prior occasion then doctrine of LE would succeed. Laws LJ thought that SIJ’s comment had ‘considerable force’ but seemed to shy away from LE doctrine. Laws LJ appears to be quite strict on allowing application of LE doctrine in other cases also eg Niazi.

    In the interim, this person has fallen into a lacuna of sorts. They applied under the old rules and got rejected. Funny thing is that if they applied under tier 2 and were successful then they would be exempt from providing IELTS certificate (now only level 5.5 required) because they were applying to extend existing MOR visa.

    I think HS (India), when distinguished, is helpful. However, I am not confident that LE argument would succeed. I have no choice but to run it though. Any thoughts?

    Regards

    PA

    • freemovement says:
      12 May 2009 at 5:11 pm

      I’m not convinced that there is a good legitimate expectation argument in this type of case. I’m afraid that I can only go as far as to say that it sounds like an interesting and difficult case, and rather similar to one I’ve been instructed on! Bar Council rules and the fact it would take a lot of unpaid time to put together a decent reply preclude me from going into any more detail, I’m afraid.

  2. Presently Anonymous says:
    12 May 2009 at 5:40 pm

    Thanks for the reply.

    Agreed. It is ‘an interesting and difficult case’.

    If I don’t run LE argument then all I have is HS (India) from what I can see. Hope the Immigration Judge is with us.

    Once again, great website. Keep it going.

    Kind regards

    PA

  3. Presently Anonymous says:
    12 May 2009 at 5:40 pm

    Thanks for the quick reply.

    Agreed. It is ‘an interesting and difficult case’.

    If I don’t run LE argument then all I have is HS (India) from what I can see. Hope the Immigration Judge is with us.

    Once again, great website. Keep it going.

    Kind regards

    PA