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.
Despite the fact that the High Court agreed that the delays to Mr Rechachi’s case had been unreasonable in this instance it is important to note what else they decided. Firstly, they ruled that there can be no challenge to the Secretary of State’s right (in principle) to change policy on immigration. They said that refugee status is recognised not granted, the formal grant of leave to remain confers the entitlement to remain and that five years’ leave fulfils the UK’s obligation under the Refugee Convention. The High Court also supported the Secretary of State in saying that he did have the right to make policy changes of that kind and on that basis.
Is policy ever ignored by the Secretary of State or treated as if its content should not apply?
The case law of Tozlukaya (2006) which went to the Court of Appeal is a good example of how policy can be simply ignored or intentionally not applied to an individual who should come under its remit. The policy in question is DP5/96 which was amended by Parliament on 24 February 1999 and therefore should have still applied in the years leading up to 2006. The policy stated in a case where children had spent more than seven years in the U.K. then the family would not normally removed. The policy did state that other factors may be taken into account which may displace this.
The family were denied the benefit of the policy and the defence of the Secretary of State was that each decision must be looked at on its own merits. The Home Office also submitted evidence the caseworkers who made the decision did not have access to the amended statement in Parliament (form February 1999) or even an approved summary of the policy’s key points. The Court of Appeal, however, found that the family had a legitimate expectation that this policy would be applied and that ‘all this is contrary to the basic principles of good administration.’
Does an applicant have to be aware of a specific policy for the doctrine of legitimate expectation to apply?
The Court of Appeal found that legitimate expectation of a particular applicant does not have to be of a specific policy but that decisions will be taken in accordance with the relevant policies i.e. in accordance with the law. Otherwise, they said it would be ‘grossly unfair’ for a court to intervene.