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Legitimate expectation

Legitimate expectation

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.

Free Movement
The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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