AA & Ors v The Secretary of State for the Home Department

These appeals were listed together because they raise a common issue concerning the effect of changes introduced to the Highly Skilled Migrant Programme (“HSMP”) from 7 November 2006 as a result of amendments made to the Immigration Rules (HC 1702 amending Statement of Changes in Immigration Rules, HC 395). HC 1702 introduced changes which, in particular, impose potentially more onerous criteria for an individual already in the UK who seeks an extension of leave under the HSMP.

The first appellant (AA) is a citizen of Pakistan who worked in Pakistan in the banking and investment sector prior to coming to the UK. In March 2005 he made an application under the HSMP which was approved by Work Permits UK on 1 September 2005. In November 2005, AA applied for entry clearance which, on 1 January 2006, was granted valid for 12 months. AA gave up his job in Pakistan, sold his assets in Pakistan and travelled to the UK. On 8 April 2006, AA arrived in the UK and was granted leave to enter until 1 January 2007. On 19 June 2006 AA’s son, the third appellant (MF) arrived in the UK and was granted leave to enter in line with his father. On 9 October 2006, AA’s wife, the second appellant (RM) arrived in the UK and was granted leave to enter in line with her husband. Whilst in the UK, AA undertook work in a bank between April and October before leaving to set himself up in self-employment. On 15 December 2006, AA applied for an extension of his leave under the HSMP. His wife and son applied for an extension of their leave in line with his application. AA’s application, together with those of his wife and son, were refused on 13 February 2007 as AA had failed to satisfy the new points requirement of the revised scheme introduced from 7 November 2006, in particular because he had not earned sufficient income in the previous year in the UK. Also, the respondent decided that AA could not take advantage of some transitional arrangements for the self-employed as he had failed to provide satisfactory evidence of trading 4 months prior to the application.

Immigration Judge Kelly in a determination promulgated on 16 April 2007 dismissed AA’s appeal (and that of his wife and son which fell to be decided in line with his). The judge doubted whether he had jurisdiction to entertain an appeal based upon a legitimate expectation argument. Nevertheless, he went on to reject AA’s argument that he had a legitimate expectation that his application would be decided under the HSMP scheme in force prior to the changes effected from 7 November 2006. He concluded that the only expectation was that AA’s application would be decided on the basis of the Immigration Rules in force at the date of decision: on that it was accepted he failed. In any event, AA had failed to show that he was “lawfully economically active” – a requirement under the version of para 135D of HC 395 in force prior to 7 November 2006. The judge also decided that AA’s removal would not breach his right to respect for his private and family life under Art 8 of the ECHR.

The fourth appellant (MC) is a citizen of Pakistan who worked for the Pakistan government prior to coming to the UK most recently in the Ministry of Women Development, Social Welfare and Special Education with responsibility for the Convention on the Rights of the Child Agenda in Pakistan. He has a Masters Degree in Sociology from the University of the Punjab. On 30 November 2004 he made an application under the HSMP which was approved by Work Permits UK on 16 September 2005. In December 2005, he applied for and was granted entry clearance under the HSMP scheme valid for 12 months. MC resigned his job in Pakistan and travelled to the UK. On 10 April 2006, MC arrived in the UK and was granted leave to enter until 14 December 2006. He left his wife and 4 children in Pakistan with the expectation that they would join him later. Whilst in the UK, he worked from June 2006. On 17 November 2006, MC applied for an extension of his leave under the HSMP. On 15 March 2007, the respondent refused to extend MC’s leave because he had failed to establish a total of 75 points under the new HSMP requirements, in particular because he had not earned sufficient income the previous year. Also, the respondent did not accept that MC’s Masters degree satisfied the English language requirement in para 135D(iii) of HC 395 in force from 7 November 2006.

Immigration Judge P D Birkby in a determination promulgated on 11 June 2007 dismissed MC’s appeal against the respondent’s decision. He rejected MC’s argument that he had a legitimate expectation to remain in the UK or to have his application for an extension of leave to be dealt with other than under the current Immigration Rules. He also concluded that MC’s return to Pakistan would not breach his right to respect for his private life under Art 8 of the ECHR.

The fifth appellant (KS), who is a citizen of India, worked as a principal lecturer in information technology at Gujarat University prior to coming to the UK. He has a Masters Degree in Computer Applications obtained in India. In August 2004, KS made an application under the HSMP which was approved by Work Permits UK on 14 September 2005. In December 2005 he applied for and was granted entry clearance under the HSMP valid for 12 months. However, due to the illness of his mother whom he looked after with his wife he did not travel immediately. KS resigned his job and sold the family farm in India and eventually travelled to the UK. On 4 August 2006, he arrived in the UK and was granted leave to enter until 19 December 2006. On arrival, he took up work with a bank. On 24 November 2006, KS applied for an extension of his leave under the HSMP. This was refused by the respondent on 19 December 2006 because, due the short period of his employment in the UK, he was unable to meet the 75 point criteria in para 135D in force from 7 November 2006. He was advised to make an application as a work permit holder but his employer was unwilling to consider his employment on that basis.

Immigration Judge McMahon in a determination promulgated on 5 June 2007 allowed KS’s appeal. The judge accepted the argument that on the basis of what was said in Home Office guidance the appellant had a substantive legitimate expectation that his application would be considered under the HSMP criteria prior to HC 1702 coming into effect on 7 November 2006. The respondent’s decision was, as a result, not in accordance with the law and the respondent should again consider KS’s application accordingly. The judge also concluded that the refusal of leave was a disproportionate interference with KS’s right to respect for his private life and hence breached Art 8 of the ECHR.

Following orders for reconsideration on the application of the appellants (in the appeals of AA and MC) and of the Secretary of State (in the appeal of KS), the appeals now come before us.

The HSMP was first introduced on 28 January 2002 but has been subject to change on a number of occasions. The essential feature of the HSMP is described in the Home Office guidance, Highly Skilled Migrant Programme: Guidance for Applicants, 7 November 2006 (at p. 2):

“to allow individuals with exceptional skills to seek entry or stay to work in the UK without having a prior offer of employment, or to take up self-employment opportunities.”

Initially the HSMP operated outside the Immigration Rules and its terms were wholly contained within the Home Office guidance documents (see Highly Skilled Migrant Programme (HSMP), January 2002 and Highly Skilled Migrant Programme (HSMP) – Revised Programme effective from 28^th January 2003). On 1 April 2003, the HSMP was incorporated into the Rules as paras 135A-135H of HC 395 (HC 395 as amended by HC 538), although the points system and criteria operated under the Scheme remained in the published guidance. A revised programme was introduced on 31 October 2003 together with a separate (but similar in effect) scheme for applicants under 28 years of age (see Highly Skilled Migrant Programme (HSMP) - Revised Programme effective from 31 October 2003 (hereafter “the October 2003 Guidance”)). Further changes were made to the rules governing the Scheme in October 2004 (Cm 6333 and Cm 1112), March 2005 (HC 346) and April 2006 (HC 1016) before the final changes, and ones affecting these appellants, were made in November/December 2006 by HC 1702.

The HSMP operates on a “points system” awarding individuals points on the basis of a number of factors currently falling within the four general “scoring areas” of qualifications, previous earnings, UK experience and age and one further specific one where the individual holds a qualifying MBA degree. Since 7 November 2006, there has also been an English language requirement (see Highly Skilled Migrant Programme: Guidance for Applicants, 7 November 2006). The precise criteria and points valuations have varied over time. In essence, to be successful, the individual must, inter alia, achieve a specified total number of points. That too has varied over time, initially being set at a minimum of 75 points, reducing to 65 from 31 October 2003 but returning to 75 with effect from 7 November 2006.

Applicants are required to follow a two-stage process. First the applicant must obtain approval under the scheme from Work Permits UK and secondly, if successful must apply for entry clearance or an extension of leave if already in the UK. As we shall see, the Immigration Rules set out the requirements for the grant of leave (para 135A-135HA of HC 395). Successful applicants are granted an initial period of leave to enter which can be extended for a further period before the individual may be granted indefinite leave to remain. When first introduced, initial leave to enter under the HSMP was granted for 1 year with possible extension for a further 3 years before indefinite leave could be sought after a total of 4 years in the UK. From 1 April 2006 those periods were changed so that initial leave to enter is now granted for 2 years with a possible extension of leave for a further 3 years before indefinite leave can be sought (now) after a total of 5 years in the UK (HC 1016 amending HC 395).

Home Office guidance notes provided potential applicants with an explanation of the HSMP and the application process and also contained the criteria for the award of points until the latter were incorporated into Appendices 4 and 5 of the Immigration Rules from 5 December 2006 by virtue of HC 1702. Mr Kovats, who appeared for the respondent, helpfully provided us with a binder containing the various guidance documents issued by the Home Office in particular, as may be relevant to these appeals, dated 31 October 2003, April 2005, October 2005, April 2006 and November 2006. The appellants rely in particular on the October 2003 Guidance as the foundation for their claims of legitimate expectation.

On 7 November 2006, the Home Office suspended the HSMP deleting the relevant Immigration Rules and substituting with effect from 5 December 2006 the current Rules applicable to HSMP applicants (HC 1702). It is the effect of the changes introduced by HC 1702 in November/December 2006 which is at the heart of these appeals.

Prior to HC 1702, the relevant Rules in HC 395 for an individual seeking entry to the UK under the HSMP provided as follows:

“Requirements for leave to enter the United Kingdom as a highly skilled migrant

135A The requirements to be met by a person seeking leave to enter as a highly skilled migrant are that the applicant:

(i)

must produce a valid document issued by the Home Office confirming that he meets, at the time of the issue of that document, the criteria specified by the Secretary of State for entry to the United Kingdom under the Highly Skilled Migrant Programme; and

(ii)

intends to make the United Kingdom his main home; and

(iii)

is able to maintain and accommodate himself and any dependants adequately without recourse to public funds; and

(iv)

holds a valid United Kingdom entry clearance for entry in this capacity.

Leave to enter as a Highly Skilled Migrant

135B A person seeking leave to enter the United Kingdom as a highly skilled migrant may be admitted for a period not exceeding 2 years, provided the Immigration Officer is satisfied that each of the requirements of paragraph 135A is met.

Refusal of leave to enter as a highly skilled migrant

135C Leave to enter as a highly skilled migrant is to be refused if the Immigration Officer is not satisfied that each of the requirements of paragraph 135A is met.”

The provisions relating to an extension of stay for an individual who had entered the UK under the HSMP were as follows:

“Requirements for an extension of stay as a highly skilled migrant

135D The requirements of an extension of stay as a highly skilled migrant, in the case of a person who was granted leave to enter under paragraph 135A, are that the applicant:

(i)

entered the United Kingdom with a valid United Kingdom entry clearance as a highly skilled migrant; and

(ii)

has already taken during his period of leave all reasonable steps to become lawfully economically active in the United Kingdom in employment, self-employment or a combination of both; and

(iii)

meets the requirements of paragraph 135A(i)-(iii).

Extension of stay as a highly skilled migrant

135E An extension of stay as a highly skilled migrant maybe granted for a period not exceeding 3 years, provided that the Secretary of State is satisfied that each of the requirements of paragraph 135D, 135DA, 135DB, 135DC, 135DD, 135DE, 135DF or 135DG is met.

Refusal of extension of stay as a highly skilled migrant

135F An extension of stay as a highly skilled migrant is to be refused if the Secretary of State is not satisfied that each of the requirements of paragraph 135D, 135DA, 135DB, 135DC, 135DD, 135DE, 135DF or 135DG is met.”

And, finally, in relation to the grant of indefinite leave to remain under the HSMP the relevant provisions were as follows:

“Indefinite leave to remain as a highly skilled migrant

135G Indefinite leave to remain may be granted, on application, to a person currently with leave as a highly skilled migrant, provided that he:

(i)

has had a continuous period of at least 5 years’ leave to enter or remain in the United Kingdom in this capacity or has had a continuous period of at least 5 years’ leave to enter or remain in the United Kingdom which includes periods of leave to enter or remain granted under paragraphs 128 to 319 of these Rules; and

(ii)

for the period of leave as a highly skilled migrant, has met the requirements of paragraph 135A (i)-(iii); and

(iii)

for any period of leave not in this capacity, has not had recourse to public funds; and

(iv)

is lawfully economically active in the United Kingdom in employment, self-employment or a combination of both.

Refusal of indefinite leave to remain as a highly skilled migrant

135H Indefinite leave to remain in the United Kingdom to a person currently with leave as a highly skilled migrant is to be refused if the Secretary of State is not satisfied that each of the requirements of paragraph 135G is met.”

In addition, the Rules allowed for ‘switching’ from, for example, being a student, work permit holder and working holidaymaker into the HSMP category (paras 135DA-135DG). It is unnecessary for us to set these out as they are not relevant to these appeals.

The relevant criteria for the awarding of points in order to qualify under the HSMP were not (then) in the Rules but were set out in the relevant Home Office guidance and documentation (see HSMP Guidance for Applicants Under 28 Years of Age, April 2006 and HSMP Guidance for Applicants 28 Years of Age and Over, April 2006).

On 7 November 2006, the Government suspended the HSMP. With effect from 6 December 2006, HC 1702 put in place amending Immigration Rules for the HSMP. The Government indicated that any applications received after 6 November 2006 would be considered under the new Rules and criteria for the HSMP. The requirements for entry clearance and leave to enter under the HSMP remained the same in para 135A apart from the fact that a total of 75 rather than 65 points were now required. For our purposes the important change was in para 135D and the requirements for an extension of stay under the HSMP. The substituted para 135D provides as follows:

“135D. The requirements for an extension of stay as a highly skilled migrant for a person who has previously been granted entry clearance or leave in this capacity, are that the applicant:

(i)

entered the United Kingdom with a valid United Kingdom entry clearance as a highly skilled migrant, or has previously been granted leave in accordance with paragraphs 135DA-135DH of these Rules; and

(ii)

has achieved at least 75 points in accordance with the criteria specified in Appendix 4 of these Rules, having provided all the documents which are set out in Appendix 5 (Part I) of these Rules which correspond to the points which he is claiming; and

(iii)

(a) has produced an International English Language Testing System certificate issued to him to certify that he has achieved at least band 6 competence in English; or

(b)

has demonstrated that he holds a qualification which was taught in English and which is of an equivalent level to a UK Bachelors degree by providing both documents which are set out in Appendix 5 (Part II) of these Rules; and

(iv)

meets the requirements of paragraph 135A(ii)-(iii).”

There are also a number of other amendments to the Rules governing the HSMP including the ‘switching’ provisions in paras 135DA-135DG and that for the grant of indefinite leave to remain in para 135G. None are important in these appeals.

It will be immediately apparent that the new para 135D has a number of effects. First, it imposes a new English language requirement. We need say nothing more about that in these appeals other than to note that it was one of the bases for the refusal in the case of MC. Secondly, it removes the requirement, previously in para 135D(ii) that the applicant show that he has “taken during his period of leave all reasonable steps to become lawfully economically active in the United Kingdom in employment, self-employment or a combination of both”. Thirdly, this requirement is replaced by a new para 135D(ii) which stipulates that the applicant must show that he “has achieved at least 75 points in accordance with the criteria in Appendix 4” of the Rules and provided the necessary supporting documentation required by Appendix 5 of the Rules. (The detail of Appendices 4 and 5 is not important to the legal issues in these appeals and we do not set them out here.)

It is clear that the shift from an applicant proving that he is “lawfully economically active” to establishing that he has achieved 75 points under the criteria in Appendix 4 is to a more specific requirement which is likely to impose a more onerous requirement than before. What was previously required is set out in the various versions of the Home Office guidance issued prior to November 2006. The relevant terms of the guidance has not changed between the 31 October 2003 guidance which is relied upon by the appellants and that immediately preceding the rule changes which was issued in April 2006. Point 18.1 of the October 2003 Guidance is in identical terms, so far as is relevant, to paras 55 and 57 respectively of the two April 2006 guidance notes and is as follows:

“….You will be asked to provide evidence of your economic activity during your period of stay in the UK and evidence of your personal earnings during the period, if you are employed. If you are self-employed a business plan and evidence that you have established a business bank account, which has been active, will suffice. If you have been active in employment and self-employment then you should submit evidence of both. …”

In these appeals, it is accepted that the principal appellants were unable to satisfy the requirement in para 135D(ii) in force from 7 November 2006, namely that they had achieved the required threshold of 75 points under the HSMP. They had simply not been able to work long enough in the UK prior to seeking an extension of their respective leaves to qualify for the necessary points in accordance with Appendix 4 of HC 395. (MC also failed on the English language requirement introduced from 7 November 2006.) But, it is strongly maintained on their behalf, that they each had taken “all reasonable steps to become lawfully economically active” and so would have succeeded under the previous version of para 135D(ii). (Although the judge specifically found against AA on that issue also.)

The appellants argue that they are entitled to have their applications for extensions of leave considered under the earlier HSMP rules in force when they applied for and were granted entry clearance and came to the UK acting in reliance on that guidance. The appellants’ claims are based upon the argument that they have a legitimate expectation that their applications will be decided on the pre-7 November 2006 rules which, they say, is derived from representations amounting to a promise contained in the Home Office’s October 2003 Guidance upon which each appellant relied to his detriment in coming to the UK. It is submitted on behalf of the appellants that their appeals should be allowed to the extent that the Secretary of State should re-consider their applications in accordance with the pre-7 November 2006 rules. In addition, the appellants argue that refusal of leave in these circumstances breaches Art 8 and the right to respect for private and, to the extent it is engaged, their family life.

In any appeal before the Tribunal in which the appellant relies upon the immigration rules, the applicable rules to the appeal are those that were in force at the time the immigration decision was taken. That is the effect of the decision of the Divisional Court in R v IAT ex parte Nathwani [1979-80] Imm AR 9. The court held that the Secretary of State and the appellate body were correct to apply the rules in force at the date of the Secretary of State’s decision rather than those in force at the date of the individual’s application. Stephen Brown J considered this to be “abundantly clear” and the contrary unarguable (at p.13). Eveleigh LJ was no less certain (at p. 14):

“… there is no right in the applicant to dictate to the Secretary of State which set of rules shall be applied at the time of the decision in the case. The rules are essentially rules which have to be regarded at the time of a decision.”

Lord Widgery CJ agreed with both judgments (at p. 15). We would venture to say that this position represents settled and undisputed law. Nevertheless, it was challenged in the recent case of MO (Date of decision: applicable rules) Nigeria [2007] UKAIT 00057. The Tribunal approved and applied the reasoning in Nathwani. At para [14] the Tribunal set out the underlying basis for the ‘starting point’ in appeals before the Tribunal:

“14.

The Immigration Rules are not a statute or a statutory instrument. Although they are to be laid before Parliament, and although they are subject to a negative resolution by either House, they remain the Secretary of State’s “Rules laid down by him as to the practice to be followed”. Although they can have no effect if the legislature disapproves of them, the Immigration Rules are essentially executive, not legislative. Section 3(2) of the 1971 Act sets down the procedure for making what are essentially statements of policy; it does not change those statements from policy into legislation. As executive rules or policy they are in our view not amenable to interpretation as though they were statutes or statutory instruments. The Secretary of State is entitled and bound to make and operate the United Kingdom’s immigration policy and he is entitled to make decisions about particular cases by reference to the policy in operation at the time the decision is made.”

We have no doubt that the Tribunal’s reasoning in MO is equally applicable in determining the appropriate policy that should be applied by the Secretary of State outside the immigration rules. It must be the policy current at the time she takes the relevant decision under challenge (see R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213 per Lord Woolf MR at [75]). Although here, there may be an argument (at least before the Administrative Court) that a failure to apply at an earlier date a policy in an individual’s favour is so “conspicuously unfair amounting to an abuse of power” as to render a later decision unlawful even if it complies with the current (new) policy (see R(S) v SSHD [2007] EWCA Civ 546 (explaining R(Rashid) v SSHD [2005] EWCA Civ 744) and DS (Afghanistan) v SSHD [2007] EWCA Civ 774).

Turning to these appeals, the only basis for the appellants’ claims to an extension of leave under the Immigration Rules is on the basis of para 135D as introduced by HC 1702. There is no doubt that HC 1702 applies to the Secretary of State’s decisions in these appeals which were all made after 5 December 2006 when HC 1702 came into force. There are no transitional provisions displacing application of the new rules to applications outstanding at the date those rules came into force. Indeed, the Home Office expressly acknowledges they apply to earlier applications if made on or after 7 November 2006 when the previous rules were deleted. They would also apply to applications for an extension of leave made before 7 November 2006 but which were decided after 5 December 2006.

It is accepted that these appellants cannot succeed under the Rules introduced by HC 1702. What is said, of course, on behalf of the appellants is that the terms of the Home Office guidance in October 2003 taken together with the wording of para 135A when they sought and were originally granted entry clearance that they must “intend[ ] to make the United Kingdom [their] main home” creates a legitimate expectation that the applications for extension of leave will be dealt with on the basis of the substance of the earlier immigration rules. At the dates the Respondent’s decisions in these appeals, those rules were no longer in force. The content of this argument must therefore be that the Secretary of State is required to consider (and consequently exercise) her discretion outside the rules in accordance with the terms of the previous rules.

Mr Kovats on behalf of the Secretary of State made three principal submissions:

Before we consider the substantive arguments about legitimate expectation we must confront Mr Kovats’ first submission. It goes to the Tribunal’s jurisdiction to deal with the substantive arguments apart from the Art 8 issues. Although it was not raised earlier in the reconsideration process, it was specifically relied upon by the immigration judge in the appeal of AA to reject the legitimate expectation ground. In truth, counsel for the appellants were not taken by surprise and both Mr Gillespie and Ms Phelan fully addressed the jurisdictional issue in their submissions before us. Given that Mr Kovats submission raises a jurisdiction issue, we consider that it is right that we should deal with it.

The relevant statutory provisions are found in ss. 84 and 86 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). So far as necessary for these appeals, s.84(1) provides as follows:

“84.

Grounds of appeal

(1)

An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds—

(a)

that the decision is not in accordance with immigration rules;

(b)

that the decision is unlawful by virtue of section 19B of the Race Relations Act 1976 (c. 74)(discrimination by public authorities);

(c)

that the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42)(public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights;

(d)

that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant’s rights under the Community Treaties in respect of entry to or residence in the United Kingdom;

(e)

that the decision is otherwise not in accordance with the law;

(f)

that the person taking the decision should have exercised differently a discretion conferred by immigration rules;

(g)

that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom’s obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant’s Convention rights. …”

Section 86 of the 2002 Act deals with the “determination of appeal” and, as relevant to these appeals, provides as follows:

“86. Determination of appeal

(1)

This section applies on an appeal under section 82(1) , 83 or 83A.

(2)

….

(3)

The Tribunal must allow the appeal in so far as he thinks that—

(a)

a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or

(b)

a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently.

(4)…..

(5)

In so far as subsection (3) does not apply, the Tribunal shall dismiss the appeal.

(6)

Refusal to depart from or to authorise departure from immigration rules is not the exercise of a discretion for the purposes of subsection (3)(b).”

Mr Kovats’ primary submission was that the Tribunal cannot consider grounds of appeal which rely entirely upon public law principles such as legitimate expectation or fairness. Those matters were for the Administrative Court in judicial review proceedings under Part 54 of the CPR. He submitted that challenges based upon public law principles did not fall within the ground of appeal in s.84(1)(e) of the 2002 Act that the decision was “otherwise not in accordance with the law”. He submitted that there was no binding authority that they did although it had been assumed in some earlier cases, most prominently by the Court of Appeal in (DS) Abdi v SSHD [1996] Imm AR 148. Mr Kovats submitted that s.84(1)(e) should be construed as limited to challenges that, in effect, a decision was not “in accordance with statute” in particular the Immigration Acts. Mr Kovats’ subsidiary submission was that only the Abdi-type public law challenge of failure to consider (or properly consider) a policy could be brought within the ground of appeal in s.84(1)(e).

In the experience of the current panel of the Tribunal, Mr Kovats’ submissions on behalf of the Secretary of State are unprecedented. It has certainly been accepted since the decision of the Court of Appeal in Abdi that at least some public law challenges fell within the Tribunal’s jurisdiction founded on the words “not in accordance with the law”. Those words have existed in the governing statute dealing with immigration appeals since s.19(1) of the Immigration Act 1971. Those words were subsequently repeated in Sched 4, para 21(1) to the Immigration and Asylum Act 1999 before becoming, with the addition of the word “otherwise” the ground of appeal now found in s.84(1)(e) and repeated in s.86(3) of the 2002 Act.

The case law begins with the House of Lords’ decision in R v IAT ex parte Bakhtaur Singh [1986] 1 WLR 910. The case concerned an Indian citizen whom it had been decided should be deported on the ground that it was conducive to the public good under s.3(5) of the Immigration Act 1971. In the appeal against that decision, the adjudicator refused to take account of the positive contribution which the appellant had made (and could continue to make) as a musician and priest in the local Sikh community. The impact upon that community was not one of the “compassionate circumstances of the case” under the equivalent of what is now para 364 of the Immigration Rules. The IAT refused permission to appeal and the appellant sought judicial review of its refusal. Counsel for the Secretary of State submitted that there were some matters which were only relevant for the Secretary of State and were not relevant in a statutory appeal. A failure to take them into account might result in the Secretary of State’s decision being quashed on Wednesbury grounds but did not fall within the appellate tribunal’s jurisdiction. The House of Lords held that the adjudicator had been wrong in excluding the effect of the deportation upon the Sikh community. In so doing, Lord Bridge (with whom the other Law Lords agreed) rejected counsel’s argument (at p. 919):

“[Counsel for the Secretary of State’s] argument encounters its final and, to my mind, insurmountable hurdle, in a consideration derived from the general law. On classic Wednesbury principles (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223), in exercising his discretion whether to implement a court recommendation for deportation or whether to decide to make a deportation order against an overstayer, the Secretary of State is bound to take account of all relevant considerations. If, therefore, some interest of third parties which is known to the Secretary of State and which would be adversely affected by deportation is in truth relevant to the proper exercise of the discretion, a decision made without taking it into account would in any event be open to challenge by judicial review and consequently would be open, in the case of an overstayer, to appeal under section 19(1) as being “not in accordance with the law” quite apart from the immigration rules. It follows that to construe the rules in the sense for which the appeal tribunal contends would not only conflict with the general law but would also be ineffective to restrict the relevant matters which the appellate authorities may, and indeed must, take into consideration.”

Mr Kovats submitted that these comments are obiter and should not be followed. He relied instead upon a passage in the judgment of Watkins LJ in the decision of the Divisional Court in R v IAT ex parte Home Secretary [1992] Imm AR 555. There, the appellant contended that the Secretary of State in refusing leave outside the immigration rules had acted unfairly. It was argued on the appellant’s behalf that the general principles of administrative law (including the duty to act fairly) fell within the appeal tribunal’s jurisdiction because of the requirement to allow an appeal where the decision was “not in accordance with the law” by virtue s.19(1) of the 1971 Act. The court dismissed the application because there had not in fact been any unfairness. Nevertheless, Watkins LJ said this about the jurisdictional issue (at pp. 563-4):

“…having regard to the firm view I have taken of the Tribunal’s finding on fairness, it is unnecessary to resolve this issue. It is far better that it should wait to be resolved in a case where it is crucial to the determination of the application. Be that as it may, I feel it right to say, without, of course, deciding the matter, that I should find it very surprising that within the appellate structure of the 1971 Act, adjudicators and tribunals are empowered to embark upon often complex and far-reaching issues involving public law considerations, such as procedural impropriety, and so on, albeit that a Tribunal has a legal chairman and that an appeal lies to this court from the Tribunal. In the present uncertainty of the public law issues, I think it would be prudent of chairmen of tribunals to leave such matters to this court which is accustomed to dealing with them.”

It is important to notice that Watkins LJ’s views were obiter and, as he explicitly acknowledged, were clearly tentative. By contrast, Lord Bridge’s views, even if also technically obiter, were clearly considered and the other four Law Lords sitting in Singh who agreed with Lord Bridge’s speech did not demur from them. Lord Bridge, of course, had extensive experience of public law cases. Whilst at the Bar he represented the Government in public law cases as First Treasury Counsel (Common Law). To the extent that we must choose between these views, Watkins LJ’s comments pre-date those of Lord Bridge and, with all due respect to Watkins LJ, we prefer the approach in Singh.

The next case we should consider is the well-known decision of (DS) Abdi v SSHD. The case concerned the (then) Somali Reunion Policy whereby members of the household of a Somali national who had been granted refugee status in the UK would, in certain circumstances, be allowed to join that individual in this country. In Abdi, the Secretary of State refused a number of applications under the policy concluding that the applicants did not qualify as the part of the refugee’s household. On appeal, an adjudicator found that was a mistaken view of the facts and so the policy did apply. He went on to allow the appeal on the basis that the decision was “not in accordance with the law”. Following an unsuccessful appeal to the IAT, the Secretary of State appealed to the Court of Appeal. The Court of Appeal upheld the adjudicator’s decision. In the course of doing so, the court dealt with the argument that the Secretary of State’s failure to apply his policy did not lead to the decision being “not in accordance with the law” under s.19(1) of the 1971 Act. Having cited the passage from Lord Bridge’s speech in Singh which we set out above, Peter Gibson LJ continued as follows (at p. 157):

“These remarks are only obiter dicta and it is not obvious that Parliament by section 19(1)(a)(i) intended adjudicators to have the power to examine the validity of the Home Secretary’s decision by reference to all the matters that would be relevant for a judicial review of the decision. But Mr Singh did not suggest that Lord Bridge’s remarks were wrong and they are supported by similar comments by Mustill LJ in Malhi v Secretary of State for the Home Department [1990] Imm AR 275 at p 283. I shall therefore proceed on the footing that if it can be shown that the Home Secretary failed to act in accordance with established principles of administrative or common law, for example if he did not take account of or give effect to his own published policy, that was not “in accordance with the law”.”

Mr Kovats placed great store upon this passage and submitted that the Court of Appeal simply assumed the existence of the Tribunal’s jurisdiction for the purposes of that appeal. It is not binding authority on the scope of what is now s.84(1)(e) of the 2002 Act despite having been followed, seemingly without disagreement, by the Court of Appeal in the similar case of Hershi v SSHD [1996] Imm AR 569.

We accept that Abdi is not an authoritative ruling on the scope of the Tribunal’s jurisdiction because the Court of Appeal merely accepted that it existed given the concession by the Secretary of State. Nevertheless, the Court of Appeal did act upon that concession and did find against the Secretary of State on the substantive issue and held that the Secretary of State’s decision was “not in accordance with the law”. That approach, so far as we are aware, has never subsequently been challenged in the 12 years since Abdi was decided. It has been applied numerous times by the Tribunal (and its predecessors) where the decision-maker has failed to take account of (or properly consider) a relevant policy. The same can be said of the Court of Appeal as is illustrated by the following passage from the judgment of Keene LJ in AA (Afghanistan) v SSHD [2007] EWCA Civ 12 at [16] which concerned the misapplication by the Secretary of State of his policy dealing with unaccompanied children:

“16.

The position is that the AIT should have found an error of law by the adjudicator. He for his part should have found that the Secretary of State’s decision was not in accordance with the law and allowed the appeal under section 86(3)(a) of the Nationality, Immigration and Asylum Act, 2002 (“the 2002 Act”). This court has held more than once that for the Secretary of State to fail to take account of or give effect to his own published policy renders his decision not “in accordance with the law”: see, for example, Secretary of State for the Home Department v. Abdi [1996] Imm. AR 148 at 157. Likewise the AIT should have concluded that the adjudicator had made an error of law.”

Mr Kovats properly drew our attention to two decisions of the IAT both chaired by the President (Ouseley J) in which it had been accepted that legitimate expectation could be relied upon in an appeal under s.84(1)(e).

The first, RM (Special Vouchers – representation) India [2005] UKIAT 00067, concerned a number of East African Asians who sought entry clearance to join their parents in the UK after the Special Voucher Scheme (which would have applied to them) ended. The appellants relied upon a number of Government statements which they said established a legitimate expectation that they would, nevertheless, be granted entry to the UK. On the facts, the IAT found against the appellants. However, Ouseley J accepted that s.84(1)(e) encompassed both the Abdi-type challenge and also one based upon legitimate expectation. As to the former, he said this (at [40]):

“40.

The Tribunal has jurisdiction to say that a decision is not in accordance with the law where the Secretary of State has ignored or misinterpreted his policy. Abdi shows as much….”

As to legitimate expectation, Ouseley J said this (at [43]):

“43.

It might be that the facts of a particular case were so strong that a failure to give effect to a substantive legitimate expectation was an abuse of power and hence the decision would be not in accordance with law. That would not be enforcing policy but law. But the facts here are nowhere near that. Where the facts show that a decision breached the requirement for the procedural protection of a legitimate expectation, the decision would not be in accordance with law, but could be reconsidered. ...”

In the second case, EG (Abuse of process – legitimate expectation) Serbia and Montenegro [2005] UKIAT 00074, the appellant appealed against the decision refusing him asylum. One of the bases for his appeal was that, as a result of a telephone conversation with a Home Office official in which (the appellant claimed) he had been told he would be issued with “papers”, he had a legitimate expectation that he would be granted leave. In this respect, he relied upon s.84(1)(e) and argued that the decision was “otherwise not in accordance with the law”. On the facts, the IAT concluded that no such representation had been made. The IAT cast no doubt, however, on the view that it could in principle consider a challenge based upon a legitimate expectation (see [16]-[31]). In addition, Ouseley J saw legitimate expectation as encompassing both cases where a decision-maker had failed to follow a promulgated policy and where it arose from a practice or promise (at [21]). The importance of the latter for these appeals is its implications for Mr Kovats’ subsidiary position, namely that s.84(1)(e) allows only challenges on an Abdi basis. Ouseley J‘s view was that Abdi is merely a specific instance where a person has a legitimate expectation that a decision-maker will act in a certain way, namely apply his published policy. Thus, to accept that Abdi-type challenges fall within s.84(1)(e) is also to accept that challenges based upon legitimate expectation fall within s.84(1)(e).

Mr Gillespie and Ms Phelan also referred us to the cases of Baig v SSHD [2005] EWCA Civ 1246 especially a passage in the judgment of Buxton LJ at [28] and HC v SSHD [2005] EWCA Civ 893. It is not necessary for us to dwell on these cases at any length. They are in truth not directly relevant to the issue we must decide. In Baig, it is clear that Buxton LJ was concerned with the scope (and identification) of an error of law within the appellate structure. It was a misunderstanding by the adjudicator of the correct approach to determining proportionality under Art 8.2 of the ECHR. In other words, Buxton LJ was concerned exclusively with what had to be shown by a losing party to allow an appeal from an adjudicator to the (then) IAT and onward to the Court of Appeal. (Under the current appeal structure, such an error would be relevant in seeking reconsideration or, subsequently, onward appeal to the Court of Appeal.) His reference to “an error of public law” must be read in that context. Buxton LJ was not dealing with the jurisdiction of (and grounds of appeal to) the adjudicator (now Tribunal) under the 2002 Act. To the extent that there is any ambiguity in Buxton LJ’s words – which we doubt – his reference to HC makes the point unequivocally where the Court of Appeal at paras [3]-[8] is dealing with the jurisdiction of the IAT to hear an appeal from an adjudicator on a point of law under s.101(1) of the 2002 Act. At best, these cases illustrate a broad view of what constitutes an “error of law” but they say nothing directly about the interpretation of the statutory phrase “otherwise not in accordance with the law” in s.84(1)(e) of the 2002 Act.

In our view, there is nothing in the case law, apart from Watkins LJ’s tentative view in R v IAT ex parte Secretary of State, which tells against s.84(1)(e) encompassing at least some public law grounds. Indeed, the case law provides positive support for that view.

Further, the structure of s.84(1) itself strongly suggests that Mr Kovats’ submission that s.84(1)(e) must be construed narrowly is untenable. It cannot be restricted to, in effect, decisions contrary to the Immigration Acts. The grounds of appeal in s.84(1)(b), (c), (d) and (g) identify a broad range of other legal provisions which, if breached, will led to a successful appeal: s.19B, Race Relations Act 1976; s.6, Human Rights Act 1998; EU Treaties; and the Refugee Convention. Ground ‘(e)’ requires proof that the decision is “otherwise” not in accordance with the law. As a matter of language, therefore, a decision which breaches one of these other statutes is one which is “not in accordance with the law” and that, of course, would be the basis for allowing any appeal in such a case under s.86(3)(a). Given the breadth (and particularity) of what surrounds ground ‘(e)’ it seems unlikely that Parliament intended that ground to be limited to ‘the Immigration Acts’. Had it wished to do so, we would have expected that to be spelt out in s.84(1)(e) rather than expressed in the general way it actually is. In our judgment, the narrow interpretation that Mr Kovats pressed upon us – whether in the form of his primary or subsidiary argument - sits uncomfortably with the statutory context.

Mr Kovats also submitted that the narrow interpretation was correct otherwise there would be an undesirable overlap with the jurisdiction and functions of the Administrative Court. We do not accept this. To the extent that it is echoing Watkins LJ’s words in R v IAT ex parte Secretary of State that the Administrative Court should be left to deal with legal issues with which it is more familiar, that is, with respect, a somewhat dated view. The Tribunal’s jurisdiction lies within the heart of public law adjudication. On an almost daily basis, Immigration Judges are required to interpret and apply the Human Rights Act and ECHR to individual appeals before them. Also, as the case law amply demonstrates, since Abdi the Tribunal has in fact exercised a jurisdiction applying public law principles.

To the extent that Mr Kovats’ submission is that there should be no overlap between the Tribunal and the Administrative Court, it is with respect misplaced. There is an inevitable overlap between the two jurisdictions dealing with “immigration decisions” as indeed there always is when a statutory appeal system to challenge certain public law decisions exists. The Administrative Court always retains its jurisdiction but any attempt to invoke it in preference to the appeal process will usually be met by a refusal to grant leave to seek judicial review because there is an alternative remedy by way of appeal (see R v SSHD ex parte Swati [1986] 1 WLR 477; SSHD v R (Lim) [2007] EWCA Civ 773, especially at [13]). Of course, there are differences between the jurisdictions. The Tribunal may be able to enquire into the merits of immigrations decisions, for example in the exercise of discretion under the Rules, whilst the Administrative Court is restricted to determining the legality of the discretionary decision. Determining whether a decision breaches an individual’s human rights may in practice blur the merits/legality distinction. Likewise, the Administrative Court may have a jurisdiction that the Tribunal lacks, for example to determine the vires of an immigration rule (see e.g. Koprinov (01 TH 00091) (5 February 2001); AI v SSHD [2007] EWCA Civ 386 at [58] per Dyson LJ) and has remedies that the Tribunal lacks such as quashing orders and declarations. The fact remains that there is overlap but, in reality, the appeals process is the procedure of first choice in such cases. Mr Kovats’ submissions would, if correct, tend to produce a duplication of procedures requiring an individual to raise public law based challenges to an immigration decision, which would otherwise come within the s.84(1)(e) ground, before the Administrative Court. We see no good reason for this obviously inefficient use of court and judicial resources.

Mr Kovats’ final submission on this aspect of the appeals was that the appellants were seeking to avoid the effect of s.86(6) which prohibits a challenge to the Secretary of State’s decisions not to exercise his discretion outside the Rules. With respect, this argument is simply wrong. Section 86(6) has no application to these appeals. We set out above the relevant parts of s.86. It provides the circumstances in which the Tribunal must allow an appeal (s.86(3)) and when it must dismiss an appeal (s.86(5)). By relying upon the ground in s.84(1)(e), if made out, the appellants rely upon s.86(3(a) that the “decision against which the appeal is brought … was not in accordance with the law (including immigration rules)”. As it happens the wording of ground ’(g)’ and s.86(3)(a) coincide but the latter is equally applicable to an appeal where the individual succeeds on, for example, asylum, human rights or EU grounds. By contrast, if an appellant is arguing that a discretion under the Immigration Rules should have been exercised differently, he will rely on the ground in s.84(1)(f) and, if made out the appeal will be allowed by virtue of s.86(3)(b), namely that a “discretion exercised in making a decision against which the appeal is brought … should have been exercised differently”. There is no question of the appellant succeeding on a challenge based upon the illegality of the decision (covered by s.86(3(a)) where the challenge is to the merits of the exercise of a discretion. Hence the need for the specific wording in s.86(3)(b) if the appeal is to be allowed. Section 86(6) exists to create an exception to s.86(3)(b) where the merits based challenge is to the Secretary of State’s refusal to exercise his discretion outside the rules. It has no application where, as here, the challenge is to the legality of the decision and which, if successful, falls within s.86(3)(b).

We see no proper basis for adopting the narrow interpretation of s.84(1)(e) proposed by Mr Kovats. In reality, his one example of a “law” which could engage this ground of appeal was “the Immigration Acts”. That example, however, merely illustrates that at least some public law challenges do fall within s.84(1)(e). The most obvious examples would be in a deportation case where the power to deport under s.3(5) of the 1971 Act does not exist because the appellant is a British citizen or in a removal case where the power to remove does not exist because the appellant is not an immigration offender within s.10 of the Immigration and Asylum Act 1999 nor an illegal entrant (see SSHD v R(Lim)). But in truth, these ‘precedent fact’ cases are challenges based upon a public law principle – that the decisions are ultra vires: see R v SSHD ex parte Khawaja [1984] AC 74. The inclusion of these challenges, in our view, places a significant dent in Mr Kovats’ otherwise pristine primary submission in respect of the Tribunal’s jurisdiction.

As Mr Gillespie pointed out, the phrase “immigration laws” is a statutory term of art defined in s.33(1) of the Immigration Act 1971 as, indeed, is the phrase “Immigration Acts” which is now defined in s.61(2) of the UK Borders Act 2007. We agree with Mr Gillespie that had Parliament wished to narrow the Tribunal’s jurisdiction to the degree submitted by Mr Kovats, it would have done so expressly and in the clear words which were readily available to it. The wording of s.84(1)(e) has been the operative statutory phrase conferring jurisdiction in immigration appeals since the Immigration Act 1971. Parliament has re-enacted those words without relevant amendment on two subsequent occasions in the 1999 and 2002 Acts; both occasions were subsequent to the Court of Appeal’s decision in Abdi which clearly, in our view, raised the availability of public law challenges within the immigration appeals structure. The statutory words have nevertheless remained despite the major overhaul of the appeals provisions in the 2002 Act.

For these reasons, we do not accept Mr Kovats’ primary or subsidiary submissions in respect of the Tribunal’s jurisdiction under s.84(1)(e). The words themselves are broadly expressed and unqualified in their scope. They should be given their ordinary meaning. The words “otherwise not in accordance with the law” encompass challenges to immigration decisions on public law grounds. Such grounds will include for example procedural fairness (see BO (ECO’s Duties per D S Abdi) Nigeria [2004] UKIAT 00026 – decision taken by ECO prior to date fixed for interview) and, importantly for these appeals, legitimate expectation.

As presently advised, we also consider that the Tribunal has jurisdiction to deal with a challenge to a discretion exercised in making an immigration decision on a Wednesbury basis, namely that the discretion was exercised irrationally. That, after all, was the very ground considered by Lord Bridge in Singh to fall within the statutory wording. This will have no impact where the discretion is part of the Immigration Rules themselves because any such challenge would be subsumed by the Tribunal’s role in deciding on the merits whether the discretion “should have [been] exercised differently” (s.84(1)(f) and s.86(3((b)). It might, however, have an impact if the discretion was one existing outside the rules. Section 86(6) prohibits the Tribunal from considering the merits of a refusal to depart from the rules under s. 86(3)(b) but, as we have seen, does not affect a challenge to the legality of such a decision where s.86(3)(a) is the operative provision. As a ‘rationality’ challenge forms no part of these appeals, we say no more than that.

In relation to the appeals before us, it follows that the immigration judges in the appeals of MC and KS were correct to consider the legitimate expectation argument but the immigration judge in the appeals of AA, RM and MF erred in law (though not, as we shall see, necessarily materially) when he concluded that he had no jurisdiction to do so.

The crucial issue in these appeals now becomes whether the appellants can establish the substantive legitimate expectation they claim.

The courts have developed and refined the public law doctrine of legitimate expectation significantly since Lord Denning first used the term almost 40 years ago in Schmidt v SSHD ([1969] 2 Ch 149 at p. 171). Its precise scope and content remains part of the evolutionary process within modern public law (see, R v North and East Devon HA ex parte Coughlan [2001] QB 213 per Lord Woolf MR at [71]). In its original usage the courts conceived legitimate expectation as a type of public law “property” interest lying somewhere between a right and a mere spes which might entitle the individual to procedural protection before he was deprived of it or denied its continuance (see O’Reilly v Mackman [1983] 2 AC 237 per Lord Diplock at p. 275 and McInnes v Onslow-Fane [1978] 1 WLR 1520). In time, legitimate expectation came to describe the procedural “right” conferred by the law (the outcome) rather than the underlying interest (the basis) that was a sine qua non to protection from arbitrary or unfair action by a public body.

Consequently, over time the courts have utilised the concept to provide procedural protection to an individual where the public body has either acted in a way inconsistent with its previous practice (see, e.g. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374) or in violation of a promise or representation made that a certain process would be followed (see, e.g. Att-Gen of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629). In both instances, the root of the public law principle is fairness. In Nadarajah and Abdi v SSHD [2005] EWCA Civ 1363, Laws LJ expressed the underlying principle as follows (at [68]):

“68 …Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so. What is the principle behind this proposition? It is not far to seek. It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public. …”

There are four further general points that we would make.

First, any practice or promise must be established evidentially and must be “clear, unambiguous, and devoid of relevant qualification” particularly where it is said to give rise to a substantive benefit (R v IRC ex parte MFK Underwriting Agencies Ltd [1990] 1 WLR 1545 per Bingham LJ at p. 1570). Secondly, detrimental reliance upon the representation will usually be present in order to establish the unfairness (or abuse of power) arising form the public body reneging upon its previous practice or promise; although not always necessary, the absence of detrimental reliance where the claim is successful will be “very much the exception” (see R v SSHD ex parte Begbie [2000] 1 WLR 1115, per Peter Gibson LJ at p. 1124). Such reliance is particularly important in cases where the expectation is said to arise from a specific promise or representation made to the individual. It is less important where the public body seeks to depart from what it has stated to the public at large it will do, for example in a published policy (see Bibi v Newham LBC [2002] 1 WLR 237 per Schiemann LJ at [30]; Begbie per Sedley LJ at p. 1133). In truth, (detrimental) reliance by an individual is a factor relevant to the overall assessment of the binding nature of the claimed expectation and whether the public body’s decision to act in accordance with its new (lawful) policy is ‘unfair’ and an abuse of power. Thirdly, not every legitimate expectation must be honoured. Such an expectation may be overridden in the public interest (Coughlan per Lord Woolf MR at [57]; and Nadarajah and Abdi per Laws LJ at [68]-[69] – suggesting that the public body must satisfy a test of ‘proportionality’). Fourthly, a promise cannot operate to create a legitimate expectation where that would require the public body to act contrary to its powers or otherwise unlawfully (see, e.g. Begbie; Ng Yuen Shiu per Lord Fraser at p. 638).

As these authorities show, the benefit that the individual may claim by operation of a legitimate expectation is exclusively a procedural one, for example to be consulted or to make representations prior to the decision being taken. That cannot assist the appellants in these appeals. They do not claim a right to be consulted before the Immigration Rules can be changed: an argument which would have little or no prospect of success given the statutory framework for amending Immigration Rules (see R (Bapio Action Ltd) v SSHD [2007] EWCA Civ 1139). Instead, they argue that they are entitled to a substantive benefit, namely the application of the pre-7 November 2006 Immigration Rules applicable to HSMP applications. For that the appellants rely heavily upon the Court of Appeal’s decision in Coughlan’s case.

In Coughlan, the applicant was a seriously disabled woman who lived in a purpose built NHS facility. She had moved there having been promised that it would be her “home for life” by the health authority. Following a public consultation, the health authority decided to close the facility and the applicant sought judicial review to quash the decision. She claimed, inter alia, that the decision was in breach of an enforceable legitimate expectation based upon the promise of a “home for life”. Hidden J agreed and his decision was upheld by the Court of Appeal.

At [57] Lord Woolf MR identified the three possible outcomes when a legitimate expectation is claimed:

“57.

There are at least three possible outcomes. (a) The court may decide that the public authority is only required to bear in mind its previous policy or other representation, giving it the weight it thinks right, but no more, before deciding whether to change course. Here the court is confined to reviewing the decision on Wednesbury grounds. This has been held to be the effect of changes of policy in cases involving the early release of prisoners (see Re Findlay [1985] AC 318; R v Home Secretary ex parte Hargreaves [1997] 1 WLR 906). (b) On the other hand the court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken. Here it is uncontentious that the court itself will require the opportunity for consultation to be given unless there is an overriding reason to resile from it (see A-G for Hong Kong v Ng Yuen Shiu [1983] 2 AC 629) in which case the court will itself judge the adequacy of the reason advanced for the change of policy, taking into account what fairness requires. (c) Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive , not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.”

At [58] he explained the court’s role in respect of each category:

“58.

The court having decided which of the categories is appropriate, the court’s role in the case of the second and third categories is different from that in the first. In the case of the first, the court is restricted to reviewing the decision on conventional grounds. The test will be rationality and whether the public body has given proper weight to the implications of not fulfilling the promise. In the case of the second category the court’s task is the conventional one of determining whether the decision was procedurally fair. In the case of the third, the court has when necessary to determine whether there is a sufficient overriding interest to justify a departure from what has been previously promised.”

As will be clear, it is the third category of legitimate expectation that confers a substantive, rather than a purely procedural, benefit and which is claimed in these appeals. In effect, the Respondent argues that the appeals fall within the first category.

In relation to when a substantive expectation may arise, Lord Woolf MR (at [59]) identified a narrow category of case:

“…most cases of an enforceable expectation of a substantive benefit (the third category) are likely in the nature of things to be cases where the expectation is confined to one person or a few people, giving the promise or representation the character of a contract….”

And at [71], Lord Woolf MR added:

“…when a promise is made to a category of individuals who have the same interest it is more likely to be considered to have binding effect than a promise which is made generally or to a diverse class, when the interests of those to whom the promise is made may differ or, indeed, may be in conflict…”

On the facts, the Court of Appeal held that the ‘promise’ gave rise to a substantive legitimate expectation. At [60] Lord Woolf MR identified the significant features of the case:

“…First, the importance of what was promised to Miss Coughlan, (as we will explain later, this is a matter underlined by the Human Rights Act 1998); second, the fact that promise was limited to a few individuals, and the fact that the consequences to the Health Authority of requiring it to honour its promise are likely to be financial only.”

Having established the legitimate expectation, the Court of Appeal went on to consider whether it would be an abuse of power to frustrate the expectation and concluded that it would be and there was no overriding public interest which justified it (see [89] per Lord Woolf MR).

In Coughlan, Lord Woolf MR commented that the category of legitimate expectation where an individual could claim a substantive benefit was “controversial” (at [59]). The existence of this category of legitimate expectation is now settled. It has, for example, been accepted by the Court of Appeal in Begbie; Bibi and Nadarajah and Abdi albeit unsuccessfully on the facts of those cases. Thus, there is no doubt that the authorities now recognise that a substantive benefit may be derived from a legitimate expectation. In these appeals, it is not an extension of leave which would be the substantive benefit akin to that claimed in Coughlan’s case. If it were, we are in no doubt that this would be a proposition with no hope of success given the structure of the Immigration Rules and of the HSMP in particular. Rather, the appellants claim the substantive benefit of the pre-7 November 2006 HSMP rules.

To establish the legitimate expectation claimed, the appellants must show that:

Before turning to consider the submissions in detail, there is an initial point that we should mention.

There has been a number of guidance documents issued before HC 1702 took effect. Mr Kovats provided us with a ring-binder containing the guidance. A number pre-date the appellants’ initial applications or at least the decisions under the HSMP or to grant entry clearance. Nevertheless, Mr Gillespie and Ms Phelan relied as a matter of fact exclusively upon the guidance of 31 October 2003 when a revised HSMP was introduced. The passages they rely upon, which we set out below, do not appear in the later guidance, for example of April 2005, October 2005 and October 2006.

Both counsel asked us to accept that it was the October 2003 Guidance which was in fact relied upon by each appellant. That indeed would seem to have been accepted by the immigration judges in each appeal and it is probably improper for us to go behind that. Nevertheless, the appellants’ claimed position seemed somewhat unlikely to us. We enquired how this could be when later guidance had been issued by the Home Office and, we presumed, would have replaced the October 2003 Guidance on the Home Office web-site. The matter was left unresolved. Equally, when we enquired of the respondent when precisely particular guidance had been replaced on the web-site, again no satisfactory answer was forthcoming despite enquiries being made. In his written submissions, Mr Kovats asked us to assume, unless the contrary were shown, that at the time the appellants were granted entry clearance the April or October 2005 guidance would have been on the Home Office web-site. The appellants’ subsequent reliance on the October 2003 Guidance was, therefore, wholly inappropriate.

This is a most unsatisfactory situation. Reliance is central to the appellants’ submissions in these appeals. It appears plain to us that a legitimate expectation can only be established, if at all, in circumstances such as arise in these appeals from guidance that is current at the time that an individual changes his position to his detriment on the strength of the representation made which probably equates to the time when each appellant resigned his work and sold assets in his own country and came to the UK. It is far from clear precisely what the dates for these events would be in each of these appeals. In an orderly world of immigration control, it would be reasonable to assume that at all relevant times the October 2003 Guidance would have been replaced on the Home Office web-site by the April or October 2005, or even April 2006, guidance. That, however, may not always be the reality (see e.g. OS (10 years’ lawful residence) Hong Kong [2006] UKAIT 00031 - dealing with the relationship between the ‘long residence’ rule and concession). Reliance could then only properly be placed on that later guidance which the appellants’ counsel accept could not help them to establish the legitimate expectation claimed. In these appeals, given the view we take below on the effect of the October 2003 Guidance, we are content, albeit reluctantly, to proceed on the basis that the appellants may put their cases at their highest in reliance upon that guidance.

Ms Phelan and Mr Gillespie relied upon four sets of questions and answers in the October 2003 Guidance which are as follows:

“24.

9 Q: What if the scheme changes?

A: As with any immigration scheme we reserve the right to adapt some of the criteria or documentation associated with the scheme and will inform you via our websites of any such changes. All applications will be treated on the basis of the HSMP provisions at the time that they were submitted.

24.10

Q: I have already applied successfully under HSMP. How does the revised HSMP affect me?

A: Not at all. It is important to note that once you have entered under the programme you are in a category that has an avenue to settlement. Those who have already entered under HSMP will be allowed to stay and apply for settlement after four years qualifying residence regardless of these revisions to HSMP.

26.5

Q: How long can I stay in the UK if I entered as a skilled migrant?

A: You will initially be given 12 months stay. If you want to remain in the UK under the HSMP, you should apply for an extension of your stay in the last month before the expiry of your permission to stay in the UK. For further information, please see ”Extension of stay in the United Kingdom” section. You will be able to amalgamate leave in other categories that lead to settlement for example, please see “Extension of stay in the United Kingdom section.” towards the end of that period you can apply to remain in the same capacity for a further period of up to three years.

After four years in the UK as a highly skilled migrant you can apply for settlement. The main criteria for settlement will be that you have spent a continuous period of four years in the UK (except for trips abroad of three months or less, totalling less than six months in the four year period) in a category leading to settlement and that you continue to be economically active in the UK as a highly skilled migrant.

26.6

Q: What will I need to do to qualify to stay after the first 12 months?

A: You will need to show that you are lawfully economically active or, if you are not, that you have taken all reasonable steps to become lawfully economically active (e.g. evidence of several job application forms or a business plan). Applications are made directly to the HSMP Team of Work Permits UK using a form FLR (HSM) together with supporting HSMP evidence. The evidence that you will be required to provide is covered in the section “Extension of stay in the United Kingdom” in this guidance. Details of the application process for an extension of stay after one year in the programme will also be provided to successful HSMP applicants with their approval papers. “

They also relied upon paras 18.1 and 18.2 which are headed “Extension of stay in the United Kingdom”:

“18.1

If your application is successful you will be given permission to enter the United Kingdom for a period of 12 months. In the last month before the end of that period you will be able to apply for further permission to stay as a Highly Skilled Migrant. You should apply directly to the HSMP team in Work Permits (UK) using the form FLR (HSM) available from the IND website. You will be asked to provide evidence of your economic activity during your period of stay in the UK and evidence of your personal earnings during the period, if you are employed. If you are self-employed a business plan and evidence that you have established a business bank account, which has been active, will suffice. If you have been active in employment and self-employment then you should submit evidence of both. You will also need to declare that you and your family have not had access to public funds and have not received a criminal conviction. If your application is approved you will normally be given permission to remain for a further three year period. Further details on the application process for an extension of stay after one year will be provided to successful applicants.

18.2

If you have been granted permission to stay in the United Kingdom as a Highly Skilled Migrant for four years and wish to remain in the United Kingdom on a permanent basis you can apply at the end of the four-year period for permanent residence. This is otherwise known as indefinite leave or settlement. In addition those applicants who have been approved under HSMP and are applying for permanent residence as a Highly Skilled Migrant will be able to amalgamate leave to remain under HSMP with previous leave from other categories that lead to settlement. For example if you had previously stayed in the UK with two years leave for work permit employment and then switched to the HSMP you would be eligible to apply for settlement after a further two years in the UK as a Highly Skilled Migrant. Further information on whether an immigration route leads to settlement can be found on the IND website at www.ind.homeoffice.gov.uk. If you meet the requirements for settlement your spouse or unmarried partner and children under the age of 18 will also be able to obtain permanent residence with you.”

Reliance was also placed upon the requirement for the grant of leave to enter found in para 135A(ii) of the Immigration Rules in force at all materials times which states that the person seeking leave:

“intends to make the United Kingdom his main home”.

This in turn, it is said, is amplified in para 9.1(c) of the guidance in the following terms:

“9.1

In addition to scoring at least 65 points you will also need to demonstrate:

…

c)

That you are willing and able to make the United Kingdom your main home. We will ask you to provide a written undertaking to that effect. You will be expected to make the UK your country of habitual residence. Secondments abroad that are an integral part of a job based in the UK are permitted by HSMP, however they will be considered as time outside of the UK for settlement eligibility purposes. To qualify for settlement in the UK you must have spent a continuous period of four years in the UK except for short holidays or business trips. Any secondment that requires you to be outside the UK for an unbroken period of over three months will make your previous stay in the UK ineligible as a continuous period in the UK.”

Counsel for the appellants submitted that these words read together amounted to a promise that the appellants’ applications for extension of leave will be judged on the basis of the rules and criteria in force when the appellants moved to the UK. An ordinary person reading the guidance would understand it as saying that there was no need to worry about any changes to the scheme in the future.

Mr Kovats, on behalf of the respondent, submitted that any representation must be clear and unequivocal if it is to give rise to a legitimate expectation. The guidance was far from that. In context, the appellants must have been aware that they would have to make further applications to remain and that the criteria for success would be those applicable at the time. It was important to look at the matter objectively and to see what the Government was seeking to achieve. Mr Kovats sought to distinguish Coughlan on the basis that the representation, if any, had been made to the public at large rather than to a small group through specific dialogue. He submitted that the appellants’ only legitimate expectation was that the rules at the date of decision would be applied.

The starting point, and for Mr Kovats the finishing point, is stated by the Tribunal in MO (at [16]):

“16.

The appellant can gain nothing by putting his claim in the language of legitimate expectation. His only legitimate expectation is to have his application decided in accordance with the Rules at the time the decision is made. Any other view would entail the conclusion that the Secretary of State’s power to make policy by changing the Rules from time to time is hampered or fettered (see In re Findlay [1985] AC 318)…. ”

However, as the Tribunal in MO itself acknowledged, this will be displaced if a substantive legitimate expectation is established based upon a promise or representation (at [18]). In deciding what, if any promise or representation is made, it seems to us that the correct approach is not a subjective one. It is neither correct to ask ‘what do the appellants understand the guidance to mean?’ or ‘what does the Secretary of State intend to convey in the guidance?’ Neither of those approaches focuses upon the legitimacy of any expectation and therefore on its legal enforceability. There is a need for objective verification to justify that result. The correct approach is to ask ‘what would a reasonable reader of the guidance understand was being said?’ That reader will not approach the guidance in a pedantic, overly analytical way but will read it sensibly and not in an excessively self-serving way necessarily ignoring or resolving ambiguities in their own favour. In addition, the reasonable reader will bear in mind the context in which the guidance is issued. It should be readily apparent to anyone that immigration policy reflects the Government and Parliament’s current view of the public interest. Immigration policy is not static and the consequence is change. The Immigration Rules, for example, are amended with a sometimes alarming frequency. Objectively, applicants under the HSMP could expect, in general, no future certainty as to the content of the rules.

The appellants seek to establish a legitimate expectation that the accepted basis upon which immigration decisions are made – the ‘starting point’ as we called it earlier – must give way in the interests of fairness. They are, no doubt, part of a substantial group of individuals. We do not know how many. The House of Lords/House of Commons Joint Committee on Human Rights in its report, Highly Skilled Migrants: Changes to the Immigration Rules published on 9 August 2007 (HL Paper 173; HC 993), quotes the HSMP Forum estimate that “as many as 90% of the 49,000 migrants who have already been admitted onto the programme” may not be eligible to stay under the new Rules (at para 26). Mr Kovats prays this in aid and, pointing to what was said in Coughlan, argues that this makes the appellants’ argument less potent. We see the potential force in that submission if we were concerned with the unfairness to the appellants or the ability of the Secretary of State to renege on a promise that has been established. The smaller the group the more likely it would be unfair to renege on the promise because of the lesser impact upon the public interest in maintaining ‘old’ policy for a few. It is more difficult to see its force when the issue is what would a reasonable reader consider the guidance to be saying? However, we acknowledge that the reasonable reader’s interpretation might be affected by the breadth of potential recipients of the guidance.

Turning to the specific parts of the guidance relied upon by the appellants, we do not consider the requirement in the Rules or the statement in the guidance at para 9.1(c) that the individual must be willing and able to make the UK his “main home” substantially to assist the appellants. The requirement is not that they make the UK their only home and, in any event, the scheme (as was and is now) is a scheme leading to settlement if the Rules and criteria are satisfied. That is simply what the HSMP is about – it does not amount (or contribute) to a promise as to the basis upon which the individual will be judged when seeking an extension of leave.

Likewise, paras 18.1 and 18.2 (which are reflected in questions and answers 26.5 and 26.6) describe the (then) current requirements of the HSMP for an individual who has entered the UK under the scheme. In our view, it cannot reasonably be construed as a promise that the rules and criteria will remain ossified for ever. They must, in any event, be read in the context of the October 2003 Guidance as a whole and in particular pars 24.9 and 24.10.

We consider these to be the crucial parts of the October 2003 Guidance for the appellants. Paragraph 24.9 could not be clearer. In answer to the question “What if the scheme changes?”, the answer is given that the criteria and documentation under scheme may change which will be notified via the Home Office web and

“All applications will be treated on the basis of the HSMP provisions at the time that they were submitted.”

In fact, this is also reflected in para 16.1 where it is stated:

“HSMP has been extended indefinitely, although the Home Office may decide it is appropriate to make further changes to HSMP in the future.”

If the October 2003 Guidance said no more, the appellants’ claims would be utterly hopeless in law. These paragraphs make it clear to any reader – let alone the reasonable reader – that the scheme may change and future applications would be dealt with under the criteria in force at that time.

However, the October 2003 Guidance does say more in para 24.10 which we set out again for ease of reference:

“24.10

Q: I have already applied successfully under HSMP. How does the revised HSMP affect me?

A: Not at all. It is important to note that once you have entered under the programme you are in a category that has an avenue to settlement. Those who have already entered under HSMP will be allowed to stay and apply for settlement after four years qualifying residence regardless of these revisions to HSMP.”

Paragraph 24.10 is more promising from the appellants’ perspective at least at first blush. Its scope is, however, clear: it is concerned with how the “revised scheme” affects someone who has already successfully applied under the HSMP. The “revised scheme” is, of course, a reference to the revisions introduced on 31 October 2003 which led to the particular Guidance. The Guidance is headed “Highly Skilled Migrant Programme (HSMP) – Revised Programme effective from 31 October 2003”. The changes are summarised at para 3.1 involving a reduction in the points threshold to 65, the introduction of a new scheme for under 28 year olds and the introduction of a new 10 point allowance for a person with a skilled partner. The effect of these changes on someone who has already “applied successfully under the HSMP” is stated to be “Not at all”. In fact, paragraph 24.10 has nothing to do with the situation of these appellants. They applied after the “revised scheme” came into effect and they do not claim not to be covered by its terms. Their claim is that its terms do cover them. However, what is said is that para 24.10 is said to give the impression that a person who has already entered the UK under the HSMP will not be affected by any revisions to the scheme.

As Bingham LJ stated in the MFK Ltd case, to give rise to a legitimate expectation the representation must be “clear, unambiguous and devoid of relevant qualification” (at p. 1570). Whilst para 24.10 is not a model of clarity, it cannot reasonably bear the meaning and create the expectation claimed. To read it as such would be to ignore the immediately preceding para 24.9 which states that is not how the scheme will be applied if any changes to it occur in the future. This is not merely a pedantic or overly analytical construction of para 24.10. It is to read it in context and in the light of what is said in immediate proximity to it in the Guidance. A reasonable reader would not read the (potentially) beneficial provisions without reference to such clear and unequivocal provisions that negate any beneficial meaning that might be gleaned from para 24.10. The effect is that any ambiguity is resolved against the claimed legitimate expectation that the (then) current rules and criteria under the HSMP will always be applied to the appellants.

For these reasons, the appellants cannot factually establish the legitimate expectation they claim. Their only legitimate expectation is that their applications will be judged on the basis of the rules and criteria under the HSMP in force at the relevant time, namely the date of any decision.

That conclusion is sufficient to dispose of these appeals to the extent that they are based on the legitimate expectation argument. However, we cannot leave the legitimate interest argument raised in these appeals without dealing with the public interest issue that was fully argued before us. Mr Kovats submitted that the change in immigration policy effected by HC 1702 was justified and overrode any legitimate expectation that might otherwise arise. We agree to the extent that it seems to us that even if a promise or representation had been made we are not satisfied that it would be unfair to these appellants (or those in a similar situation) for the Secretary of State to renege on that promise. Our reasons for that conclusion are as follows.

We accept that these appellants – and no doubt others in a similar position – have given up their jobs and, perhaps, also their homes and re-located to the UK. Despite our reservations, we also have accepted that they did so in reliance upon the October 2003 Guidance. There is, therefore, a genuine sense of grievance that they have been treated unfairly in, to use Ms Phelan’s words during the hearing, ‘having the rug pulled out from under them’. That unfairness, however, has to be balanced against any countervailing public interest. It is also axiomatic that the Government is entitled to change immigration policy by the procedures laid down in s.3(2) of the Immigration Act 1971 through Parliament. In these appeals, it is not suggested that she has done so unlawfully. Therefore, we are faced with a situation where, it is said, a lawful change of immigration policy cannot be invoked against these appellants (or others similarly placed). There is no doubt that the public interest may outweigh any promise (and hence legitimate expectation) that an individual might claim. As Laws LJ said in Nadarajah and Abdi at [69]:

“The balance between an individual's fair treatment in particular circumstances, and the vindication of other ends having a proper claim on the public interest (which is the essential dilemma posed by the law of legitimate expectation) is not precisely calculable, its measurement not exact.”

In the earlier case of Begbie, Laws LJ said this (at pp.1130-31):

“80.

.... In some cases a change of tack by a public authority, though unfair from the applicant’s stance, may involve questions of general policy affecting the public at large or a significant section of it (including interests not represented before the court); here the judges may well be in no position to adjudicate save at most on a bare Wednesbury basis, without themselves donning the garb of policy-maker, which they cannot wear. The local government finance cases, such as R v Secretary of State ex parte Hammersmith [1991] 1 AC 521, exemplify this. As Wade and Forsyth observe (Administrative Law , 7th edn p.404):

“Ministers’ decisions on important matters of policy are not on that account sacrosanct against the unreasonableness doctrine, though the court must take special care, for constitutional reasons, not to pass judgment on action which is essentially political.”

81.

In other cases the act or omission complained of may take place on a much smaller stage, with far fewer players. Here, with respect, lies the importance of the fact in Coughlan that few individuals were affected by the promise in question. The case’s facts may be discrete and limited, having no implications for an innominate class of persons. There may be no wide-ranging issues of general policy, or none with multi-layered effects, upon whose merits the court is asked to embark. The court may be able to envisage clearly and with sufficient certainty what the full consequences will be of any order it makes. In such a case the court’s condemnation of what is done as an abuse of power, justifiable (or rather, falling to be relieved of its character as abusive) only if an overriding public interest is shown of which the court is the judge, offers no offence to the claims of democratic power.

82.

There will of course be a multitude of cases falling within these extremes, or sharing the characteristics of one or other. The more the decision challenged lies in what may inelegantly be called the macro-political field, the less intrusive will be the court’s supervision. More than this: in that field, true abuse of power is less likely to be found, since within it changes of policy, fuelled by broad conceptions of the public interest, may more readily be accepted as taking precedence over the interests of groups which enjoyed expectations generated by an earlier policy. ”

There are powerful arguments in favour of the public interest outweighing the interests of those who came to the UK under the HSMP prior to the changes brought in by HC 1702. First, unlike Coughlan, we are concerned not with a small group of individuals to whom (assuming contrary to the view taken above) a representation or promise has been made – this is not a “discrete” but rather an “innominate” class likely to be of some substantial size (see the comments of Laws LJ in Begbie at p. 1131 taking a restrictive view of the reach of Coughlin).

Secondly, the context of immigration policy is a “macro-political field” to borrow Laws LJ’s words in Begbie. In striking the correct balance, the Tribunal (like the courts) should be cautious of intruding so as to frustrate a change of immigration policy that, in itself, is lawful. (It has not been suggested in these appeals that the change in the Rules was unlawful on Wednesbury grounds.) The changes to the HSMP introduced in November/December 2006 were motivated by a recognition that Government policy needed better to capture those who would contribute more to the labour market in the UK. The Explanatory Memorandum to HC 1702 stated that the new rules and criteria:

“will be more effective in ensuring that the HSMP helps us to select those migrants who will make the greatest economic contribution to the UK.”

The point is made at greater length by Liam Byrne MP, the Minister of State for Nationality, Citizenship and Immigration in a letter dated 18 May 2007 and addressed to the House of Lords/House of Commons Joint Committee on Human Rights (at Appendix 3 of their Report):

“We made the changes in order to:

•

Ensure that the programme continues to attract those migrants who are of the greatest benefit to the UK economy.

•

Make it clearer and more objective, inline with our aims for the forth-coming Points-Based System for managed migration; and

•

Tackle previous instances of abuse under the system.

The previous extension test was not a sufficient robust measure of whether the migrant had been making an economic contribution to the UK. This meant that the scheme was not always meeting its policy objective of bringing talented people to the UK who can make a strong contribution to our economy. Analysis of labour market outcomes at the extension test stage showed that whilst the majority of HSMP migrants are earning good salaries in the UK, around one in ten earn equivalent to the bottom 25% of UK earners, and around 2 in 10 earn below the average wage. Further, we found that some were employed in low-skilled jobs such as food production operatives and taxi drivers.

The new rules have been designed to overcome this problem by using criteria that more accurately predict labour market success at the initial application stage and by testing HSMP participant’s success in the UK labour market more rigorously at the extension stage. We believe that these measures are therefore necessary in the interests of the economic well-being of the country.”

The Minister’s letter does not seem to have been made public until the Parliamentary Joint Committee on Human Rights published its report on 9 August 2007 and so was not relied upon by the Respondent at the hearings in these appeals. It cannot, therefore, directly assist the Respondent in these appeals although the public interest it highlights is merely a ‘fleshing out’ of what is readily apparent in the earlier Explanatory Memorandum to HC 1702 which was certainly available at the time of the hearings.

Thirdly, it is important to notice, in our view, that as part of the policy changes effected by HC 1702 consideration was given in general terms to those who had been granted entry under the earlier criteria. As part of a package of changes, some transitional provisions were introduced in order to provide alternative routes for seeking leave to remain on another basis when an individual could not succeed under the new criteria, for example to permit switching to work permit employment and concessions were made specific to HSMP cases; and to assist the self-employed. We do not set out the detail (for which see letter from Liam Byrne MP, the Minister of State for Nationality, Citizenship and Immigration in a letter dated 30 March 2007 and addressed to the House of Lords/House of Commons Joint Committee on Human Rights, at Appendix 2 of their Report). It is accepted that for a variety of reasons these appellants could not take advantage of the transitional arrangements.

In our view, the Tribunal is not in a position, nor is it entitled, to embark upon an evaluation of the policy changes that motivated and which resulted in the specific changes made to the HSMP by HC 1702. It seems to us that commensurate with the injunction in cases such as Begbie and Nadarajah and Abdi, the Tribunal must stay its hand. Whilst each case must, in this respect, turn upon an assessment of the unfairness to the individual appellant balanced against the dictates of the public interest, for these appellants (and any others similarly placed) their only legitimate expectation can be to have their applications determined under the current HSMP rules and criteria.

In the appeals of AA (together with RM and MF) and MC, the immigration judges did not materially err in law in dismissing the appeals on the basis that the appellants had failed to establish an enforceable substantive legitimate expectation and so those decisions must stand. In the appeal of KS, the immigration judge did materially err in law in allowing the appellant’s appeal on this basis and we substitute a decision dismissing the appeal.

We turn now to consider Art 8 of the ECHR in respect of each of the appeals before us. In these appeals, the appellants argue that the decisions to refuse to extend their leave disproportionately interfere with their right to respect for their “private and family life”. The implicit effect of the Respondent’s decisions is that the appellants’ human rights are engaged because they will be required to leave the UK and return to the countries of which they are nationals and where they lived prior to coming to the UK under the HSMP (see JM v SSHD [2006] EWCA Civ 1402).

Art 8 provides as follows.

“Article 8 – Right to respect for private and family life

1.

Everyone has the right to respect for his private and family life, his home and his correspondence.

2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The jurisprudence setting out the framework for the application of Art 8 is too well-known to require repetition here: in particular, the 5-stage approach in the speech of Lord Bingham in R(Razgar) v SSHD [2004] UKHL 27 at [17] and the approach to the question of ‘proportionality’ in the single opinion of the House in SSHD v Huang [2007] UKHL 11, especially at [19]-[20].

The immigration judge’s reasons for dismissing AA’s claim under Art 8 are set out at paras [21] – [23] of his determination:

Mr Gillespie submitted that the immigration judge had erred in law. First, he submitted that Art 8.1 was engaged. AA’s private life included the pursuit of a career or business and he relied upon Niemietz v Germany (1993) 16 EHRR 97 at para 29. The decision to refuse an extension was a sufficiently serious interference with that right. He pointed out that AA had been induced to come to the UK and make it his main home with his family; he had given up his job and had sold his property in Pakistan; he will suffer hardship if returned to Pakistan and had to re-establish himself. Further, in those circumstances the decision not to extend AA’s leave is proportionate.

AA’s appeal is exclusively concerned with his right to respect for his private life. The immigration judge’s conclusion that the decision did not interfere with his “family life” is unassailable given that his wife and son could (and there is no reason to believe they would not) return with AA to Pakistan which was their home until travelling to the UK in 2006.

As regards AA’s private life, the notion of “private life” under Art 8 must be given a broad compass and includes “the right to establish and develop relationships with other human beings” (see Niemietz at [30]). We do, however, have considerable doubts as to whether it extends to business or professional activities. Although the Court’s decision in Niemietz (especially at [29]) offers some support for that view, its precise scope is unclear. It may well be difficult, as the immigration judge said at para [21] of his determination, to extract a ‘right to settle and work’ in the UK from Art 8.1. The right to associate must, of course, be distinguished from the right to any business assets or the business itself which, if at all, are protected by Art 1 of the First Protocol of the ECHR which is not relied upon by AA. Nevertheless, for the purposes of this appeal we are content to assume that AA has established “private life” in the UK and its interference on removal would engage Art 8.1. There can be no doubt that the decision was “in accordance with the law” and taken in furtherance of a legitimate interest, namely the economic well-being of the UK. The crucial issue identified by Mr Gillespie in his skeleton was whether the decision was proportionate to that legitimate aim under Art 8.2.

It is seems to us that the immigration judge approached the question of proportionality correctly as a matter of law. He sought to strike a “fair balance” between AA’s (and the other appellants’) interests and the legitimate aim of the economic well-being of the UK underlying the change in the HSMP. He sets out a length earlier in his determination the appellants’ evidence. We are left in no doubt that he fully took into account the appellants’ individual circumstances and the impact of removal upon them. The appellants had neither a legal right nor a legitimate expectation to stay in the UK. They had only been here for varying short periods of time during 2006. They would return to the country of their nationality where they had lived prior to coming to the UK. The immigration judge’s findings that AA was unable to bring himself within the requirements of the transitional provisions for the self-employed and, indeed, that AA failed to meet the previous requirement in para 135D(ii) of being “lawfully economically active” were not challenged before us. The immigration judge’s conclusion that the Respondent’s decision was not disproportionate comes nowhere near being perverse and, in fact, is the conclusion we would reach on the facts of these appeals. The immigration judge did not materially err in law in concluding that the appellants had failed to show a breach of Art 8 and his decision to dismiss their appeals stands.

The immigration judge’s reasons for dismissing MC’s claim under Art 8 are set out at para [14] of his determination:

The judge accepted that the Respondent’s decision interfered with the appellant’s private life and so engaged Art 8.1. As we understood Ms Phelan’s submissions, she only challenged the immigration judge’s conclusion that the decision was proportionate. Ms Phelan’s submitted both orally and in her skeleton that the judge had failed to have regard to the unfairness to MC in the effect of the change in the HSMP rules when assessing proportionality. We do not agree. We do not understand the judge’s reference to challenging the fairness of the change in the Immigration Rules “in another forum”, by which presumably he had in mind the Administrative Court, to have excluded proper consideration of the appellant’s own circumstances. It is clear in reading para [14] of the determination that the judge fully had regard to the appellant’s circumstances and the impact of decision upon him and his family who were in Pakistan. The judge’s decision is properly reasoned on the basis of all the relevant matters. He too was dealing with an appellant who had only lived in the UK for a short period in 2006. He had no right or legitimate expectation to remain in the UK. His family remained in Pakistan where he had lived, so far as we can tell, all his live until coming to the UK. The Immigration Judge’s conclusion that any interference with the appellant’s private life in these circumstances was not disproportionate is wholly sustainable and, in our view, the correct decision. The immigration judge did not materially err in law in concluding that the appellant had failed to show a breach of Art 8 and his decision to dismiss the appeal stands.

In KS’s appeal the immigration judge allowed the appeal under Art 8. The judge’s reasoning is set out at paras [5.18] and [5.22]-[5.23]of his determination:

Mr Kovats accepts that the judge was entitled to find that KS had established private life in the UK. However, he submitted that the judge erred at para [5.22] in concluding that the decision to refuse him leave would interfere with his private life and also that the judge’s conclusion at para [5.23] in relation to proportionality was perverse.

We do not accept the first part of Mr Kovats’ submission. It seems to us that the judge was entitled to conclude that the decision would have the practical effect of requiring the appellant to leave the UK and return to India. Given the acceptance that the appellant had established private life in the UK, we see no error in the judge’s conclusion that the decision to refuse leave had the effect of interfering with that private life.

We do, however, see the underlying force of the second part of Mr Kovats’ submission in relation to the judge’s assessment of proportionality. In the first sentence of para [5.23], the judge takes into account “the clear expectation derived from the old HSMP Scheme”. That expectation, as we have shown earlier, has no legal basis. In itself, this amounts to a material misdirection. In any event, we are unable to see any semblance of the ‘fair balancing’ exercised required by Art 8.2 in para [5.23] of the determination. Rather, the judge only identifies those factors he considered to weigh in the appellant’s favour. The importance of the policy underlying the change in the HSMP is not referred to and neither is the fact that the appellant’s family are all still in India and there is no suggestion that he could not return there and given his history and qualifications re-establish himself in his own country. The judge’s reasoning is legally flawed and cannot stand.

We must, therefore, substitute our own decision. We accept that the appellant came to the UK with the subjective expectation that he would be allowed to stay. That expectation was, however, not reasonably founded. We accept that, nevertheless, he gave up his University job in India and moved to the UK. We accept that the family farm was sold. We also accept that it is intended that his wife should join him in the UK but at present she remains in India where she is a school teacher and looks after the appellant’s mother. We note that KS’s employer declined to assist the appellant to become a work permit employee under the transitional provisions. The appellant accepted in his evidence that he would not be destitute on return to India, that he has good qualifications and experience and a supportive family and accommodation (see para [5.13] of the judge’s determination). In these circumstances, the appellant can reasonably be expected to return to India to live with his wife and re-establish himself in time in employment. The appellant has no legal right or expectation to remain in the UK. We have already set out above the important legitimate aim underlying the change in the HSMP. Taking fully into account the effect of the Respondent’s decision on the appellant, we conclude that the right to respect for his private life is outweighed by the public interest and therefore the interference with that right is proportionate.

For these reasons, the immigration judge materially erred in law in his decision in relation to Art 8 and it cannot stand. We substitute a decision dismissing KS’s appeal under Art 8.

In respect of AA, RM and MF, the decisions dismissing each of their appeals stand.

In respect of MC, the decision to dismiss his appeal stands.

In respect of KS, the decision to allow his appeal on the grounds that it was not in accordance with the law and under Art 8 cannot stand. We substitute a decision dismissing his appeal on both grounds.