What must applicants be able to expect from the UK’s immigration system?
Policy on immigration matters, coming from executive power, must be designed in such a way to provide a degree of predictability and transparency in how power is exercised i.e. how and why decisions are made. There must also be a consistent treatment between individuals of comparable situations. Legitimate expectation is a public law doctrine which can be used if an applicant is in some way deprived of a policy which should have been applied to their case. That applicant is said to have had a legitimate expectation of being treated a certain way under the immigration rules. In a case from 1985 it was found that if an individual comes within the terms of a policy then they can expect to be treated in accordance with it.
In cases where the applicant can prove that the policy applied specifically to them and that they have relied upon this policy to their significant detriment, then they can have not only procedural but also substantive expectation.
How does changing policy affect applicants and appellants? Which point in time applies to certain cases?
When the immigration rules change so frequently, the timing of a decision is clearly crucial. One argument which is often used by appellants as a result of changing policy is that had their application been dealt with in a reasonably prompt time frame (sometimes applicants wait years for decisions), then they would have had the benefit of a policy that was in place at the time of their application. This argument is often linked to an argument that it is a disproportionate interference of an individual’s Article 8 right.
Applicants under the Highly Skilled Migrants Programme had similar issues. They argued that they had a legitimate expectation that their case would be dealt with according to the scheme which was in place at the date of their original application rather than the scheme at the time of an application to extend their leave.
When can delays by the Home Office and tribunal be found unreasonable and work in favour of the applicant?
A good illustration is the case of Mr Rechachi, an asylum seeker who won a judicial review after the High Court held that various delays were unreasonable. This case refers to a policy change which took place on 30 August 2005 – from this date the Home Office no longer granted indefinite leave to remain to all successful asylum seekers. Instead they granted five years’ leave. The Secretary of State specifically and intentionally decided that the five-year period would apply to leave granted after 30 August 2005 that was a consequence of winning an appeal before 30 August 2005. The reasons given were to avoid inconsistency and create administrative convenience in implementing this policy change.
Mr Rechachi’s chronology was as follows:
2002 Mr Rechachi claims asylum
2003 Mr Rechachi submits medical evidence to support his claim
April 2005 The Home Office refuse Mr Rechachi’s asylum claim
May 2005 An appeal is held at the then Asylum & Immigration Tribunal
June 2005 The Immigration Judge decides to allow Mr Rechachi’s asylum claim and writes it up
July 2005 The decision is promulgated
30 August 2005 The policy change to five years’ leave takes place
20 December 2005 Mr Rechachi’s solicitors finally receive notice that Mr Rechachi has been granted five years’ leave.
For more information on:
- Is policy ever ignored by the Secretary of State or treated as if its content should not apply?
- Does an applicant have to be aware of a specific policy for the doctrine of legitimate expectation to apply?