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

Each of the appellants is a citizen of Poland, and each, or a family member, was permitted to enter and work in the United Kingdom under the European Community Association Agreement providing benefits to Polish citizens. Each of the appellants entered the United Kingdom and commenced work prior to the accession of Poland as a member of the Union on 1 May 2004. Each was refused a grant of permanent residence. Each is now represented by Tessa Anna Sempik, solicitor, of Castelnau, Barnes.

Each of the appellants applied for, and was refused the grant of, a permanent right of residence under paragraph 15 of the Immigration (European Economic Area) Regulations 2006 (SI 2006 No 1003) which came into force on 30 April 2006:

The refusal was in each case made on the basis that, at the date of decision, none had been residing in the United Kingdom in accordance with the 2006 Regulations because, prior to 1 May 2004, each resided in the United Kingdom in accordance with the Association Agreement. Although each was a worker (or a family member of a worker) and became an EEA national when Poland became an EEA State on that day, none was a qualified person within the meaning of Reg 6 of the Regulations until accession:

The appellants rely upon the transitional provisions contained in Schedule 4 to the 2006 Regulations:

We have set out the transitional provisions in full, although Ms Sempik relied solely on paragraph 6, because they demonstrate the relationship between the 2000 Regulations and the 2006 Regulations and that for many purposes those able to rely upon the provisions formerly contained in the 2000 Regulations will continue to benefit from them. The obverse of the coin, however, is that the transitional provisions make no provision to enable a person lawfully in the United Kingdom in some other capacity to have that position equated with that of a person who qualifies under the 2006 Regulations.

Thus, whilst paragraph 6 aggregates periods of activity and residence in accordance with the 2000 Regulations prior to 30 April 2006 when the 2006 Regulations replaced them, both sets of Regulations were concerned with EU nationals and they, by definition, could not refer to Polish nationals prior to accession on 1 May 2004.

In order to deal with this difficulty, Ms Sempik relied upon paragraph 255 of the Immigration Rules, both as originally laid before Parliament and as amended from time to time. We shall set out the history of this provision insofar as it is material:

Those who qualified under the Association Agreement alone were entitled to ILR. Those who had not resided for the qualifying periods prior to accession were entitled to a honeymoon period which enabled them to have their pre-accession residence aggregated with the qualifying time spent in the United Kingdom as Union citizens. Those who had not been residing in the United Kingdom for the qualifying period prior to the amendment of paragraph 255 on 30 April 2006 were not able to make use of aggregation: they had to rely solely upon their period of residence after 1 May 2004 when they became Union citizens. Their only consolation was that the transitional provisions permitted an aggregation of time under the 2000 and 2006 Regulations. Were it not for the transitional provisions, time would have started again for them on 30 April 2006 because they could not have been residing in accordance with the 20006 Regulations until they came into effect.

As we shall shortly see, all of the decisions made in the present appeals were made after 30 April 2006 when paragraphs 225 - 225B no longer applied. We shall, of course, return to the consequences of this later in the determination.

Mr Truchan and his family seek a reconsideration of the determination of Immigration Judge Mark-Bell, promulgated on 22 November 2007 dismissing their appeals against the decisions of the respondent made on 19 July 2007. Mr Truchan was born on 7 December 1964 and has been in the United Kingdom since at least 7 February 2002 when he was issued with an Inland Revenue self employed registration. He was given a further year’s leave on 1 October 2002 and a further 3 years leave on 13 November 2003 which would have permitted him to remain until November 2006. In each case, leave was granted under the Association Agreement.

In his determination, the Immigration Judge properly, in our judgment, disregarded the determination of Immigration Judge Lobo in an unreported determination of Gryglewski (IA/03453/2007), relying upon practice direction 10 and the citation of unreported cases. In any event, paragraph 7 of the Immigration Judge Lobo’s determination is inadequately reasoned: the appeal was allowed only on the basis that when the first appellant applied for permanent residence on 29 March 2006, he had been a self-employed person for five-years, albeit his residence since 12 April 2003 was pursuant to an Association Agreement and not under the 2000 or 2006 Regulations. Immigration Judge Lobo made no reference to the requirement that residence in the United Kingdom had to be in accordance with those Regulations.

Ms Sempik, who appeared on behalf of the appellants, argued that the first appellant’s business activity before the 2006 Regulations came into force was in accordance with the 2000 Regulations and that the Immigration Rules, paragraph 255B, and its reference to a residence permit had to be construed as a reference to a person entitled to a residence permit after 1 May 2004, and that those who had been issued a residence permit and permanent residence under the Association Agreements or were entitled to them were to be equated with those resident in the United Kingdom in accordance with the 2000 Regulations.

In addition, she submitted that the respondent’s letter, in this case dated 13 November 2003, gave rise to a legitimate expectation of permanent residence. In the course of argument before us, we have been provided with a model letter, which Ms Sempik submitted was in identical terms in all such cases. It ran as follows:

“I am writing to confirm that you have been granted leave to remain in the United Kingdom as a self-employed person under the provisions of an EC Association Agreement. Leave is granted on the understanding that you will not claim any public funds, but will maintain and accommodate yourself and any dependants from the profits of your business. Please note that you must not engage in any employment; you must work solely for your own business.

You will be eligible to apply for settlement in the United Kingdom one month before your leave expires. When applying, you should provide:

Finally, she submitted that the different treatment provided to Bulgarian and Romanian nationals when those countries acceded to the Union on 1 January 2007, which preserved their rights under the old Association Agreements and thereby enabled those nationals to aggregate time spent in the United Kingdom under them with time spent after accession, was discriminatory as it treated them more generously than Polish nationals. As discrimination was unthinkable, the only permissible construction of the Regulations was that time spent in the United Kingdom pursuant to the Association Agreement had to be aggregated with time spent since accession, whatever the Regulations might say.

The Immigration Judge dismissed each of these submissions by reference to GN (EEA Regulations: Five years’ residence) Hungary [2007] UKAIT 00073, succinctly remarking that the appellants’ clock started ticking only on 1 May 2004, the date of accession. He dismissed the allegation of discrimination based on the different treatment of Romanian and Bulgarian nationals as it arose out of the less favourable rules applicable to Bulgarian and Romanian nationals attempting to establish themselves in the United Kingdom. The Immigration Judge also dismissed the allegation of legitimate expectation by reference to the changes in the statutory or quasi statutory provisions governing the appellants and implying that the Secretary of State was not prevented from introducing such changes.

These two appellants are unrelated but their appeals were heard together as they raised similar issues.

Mr Wojtielewicz, born on 23 September 1957, entered the United Kingdom in 1988 with leave to remain until August 1988. He returned to the United Kingdom in November 2000 with leave to remain until 7 April 2001. During the subsistence of his leave, he applied for leave to remain under the provisions of the Association Agreement, which was granted from 7 April 2001 to April 2002. Further leave was granted on 23 December 2002 until 7 April 2005. He sought permanent residence on 6 July 2006. At the time of his application he had been lawfully resident in the United Kingdom since November 2000, some 5 ½ years before.

Mr Liber, born on 15 March 1948, claims to have entered the United Kingdom in 1998, following the issue of a three-year work permit. On 26 July 2001 he applied for further leave to remain as a self-employed person under the Association Agreement which was granted for a period of one year from 2 October 2001 until 3 October 2002. Further leave was granted on 12 May 2003 expiring on 3 October 2005. He applied for permanent residence on 7 August 2006 by which time he had been in the United Kingdom for about eight years.

Both applications were refused by the Secretary of State in identical terms on 6 February 2007.

Both appellants sought reconsideration of the determination of Immigration Judge Sharp promulgated on 11 July 2007 in which he dismissed both the appeals of Mr Wojtielewicz and Mr Liber. He considered that the sole issue was whether the appellants had achieved five years continuous residence under Regulation 15. He considered that the computation of time could not commence until the date of Poland’s accession on I May 2004.

In reaching his decision, the Immigration Judge took into account the provisions of paragraph 255B of the Immigration Rules prior to its repeal on 30 April 2006. He also took into account the different position of the Bulgarian and Romanian workers, whose position was preserved under the Immigration Rules. It was also be argued before him that the Home Office letters of 2003 contained assertions that the Secretary of State no longer considered himself bound to comply with. Having considered the letters, the Immigration Judge concluded there was no legitimate expectation on what appears to us to be two bases. First, neither Appellant had applied within one month prior to the expiry of the leave, as he construed the letter to require. Secondly, the letters did not give rise to a legitimate expectation. In paragraph 31 of his determination, he said:

“They may well have had hopes and aspirations that their subsequent applications would succeed but that is a different situation from having a legitimate expectation with any force of law. They were at the time of their current applications subject to the prevailing legal structure in the form of the 2006 Regulations.”

In essence, the Immigration Judge in this appeal reached a similar conclusion to that reached in the other; namely, the application had to be determined in accordance with the then current Rules and the fact that, at an earlier time such an application would (or even might) have succeeded was none to the point.

The Immigration Judge also considered the transitional provisions and determined that those provisions did not assist the appellants. Their periods of residence were not in accordance with the 2000 Regulations. Instead, he concluded that they were “in accordance with the Immigration Rules”. He accepted that the position of Bulgarians and Romanians might appear anomalous but determined that the Secretary of State was entitled to make subordinate legislation which contained such anomalies.

This is a reconsideration sought by the Secretary of State. She sought reconsideration of the determination of Immigration Judge Flynn promulgated on 30 July 2007 in which she allowed the appeal on ‘immigration grounds’.

The appellant was born on 10 May 1975 and entered the United Kingdom, as a visitor in November 1999. She was subsequently issued leave to remain in 2001 under the Association Agreement for the conventional initial period of 12 months which was subsequently extended for the conventional further period of three years, a period ending on 6 December 2005. On 7 December 2006, by which time she had been in the United Kingdom for seven years, she applied for indefinite leave to remain. The Secretary of State refused her application by a decision made on 12 March 2007.

In her determination, the Immigration Judge relied upon paragraph 222 of the Immigration Rules:

The appellant, as a Polish citizen, could have had no prospect of succeeding under the Rules as they applied at the date of the Secretary of State’s decision. In light of the respondent’s letter, with its reference to the appellant being eligible to apply for settlement in the United Kingdom “one month before your leave expires” and relying on the Tribunal’s decision in GC (Legitimate expectation-entry clearance) Romania [2005] UKAIT 00142 and ex parte Begbie [1999] EWCA Civ 2100, the Immigration Judge expressed herself satisfied that the appellant had been told she would be eligible to apply for settlement after four years residence. The Immigration Judge found that the appellant relied upon that representation and that there was no overriding public interest which justified defeating the expectation. Thus, she found the Secretary of State was bound to grant settlement to the appellant on legitimate expectation principles. She also found that the Secretary of State had failed to deal with all applicants in a similar position in an even-handed and fair way. Accordingly, she found that the decision was not in accordance with the law and allowed the appeal on immigration grounds.

In the period leading up to this appeal, it became apparent that Ms Sempik’s submission was to the effect that she had been involved in the successful applications of about 150 Polish nationals who had been provided with a right of permanent residence in accordance with the letter that we have set out in paragraph 13 above. Furthermore, it was her case that the requirement that such applications be made within one month of the expiration of leave (“you will be eligible to apply for settlement in the United Kingdom one month before your leave expires”) was not a formal condition precedent to the grant of settlement and that the Secretary of State had routinely disregarded this requirement, if requirement it was. As we have said, we accept this.

It thus became important to establish whether in the 150 cases referred to by Ms Sempik, the Secretary of State had demonstrated by his conduct a policy that ran counter to the 2000 or 2006 Regulations. It became readily apparent at a hearing when these conjoined appeals were mentioned before Senior Immigration Judge Jordan that it was impracticable for the Secretary of State to consider each of the 140 or 150 appeals and that the issue might more easily be identified and resolved by the following directions made by the Senior Immigration Judge on 25 January 2008:

In her witness statement of 14 February 2008, Ms Sempik spoke of the practice of the Home Office when conducting applications from Polish nationals to remain under the EC Association Agreement to grant one year’s initial leave followed by a further 3 years. Subject to proof that the appellant had traded, paid tax and National Insurance and was able to accommodate himself and any dependants without recourse, the applicant was then eligible to apply for settlement and the application was routinely granted. Ms Sempik provided 6 examples of this as a sample selection. Where necessary, our summary of these examples have been augmented by the comments made by Mr Chris Wood (Euro Caseworker) and contained in the Secretary of State’s response of 14 April 2008.

Each of the grants in the above six cases is explicable on the basis of an application of provisions governing another scheme or the application of paragraph 255B. The exception is at (v), Mr Krzysztofik, whose application was neither made before accession, nor before 30 April 2006 and the removal of paragraph 255B in its original form. This single example is not sufficient to justify an inference that the Secretary of State was conducting a policy that ran counter to the EC Association Agreement, the Rules or the EEA Regulations. If, as the Secretary of State now asserts, this application (having first been refused) was granted in breach of the EC Association Agreement or the Immigration Rules or the EEA Regulations it is explicable if it was a mistake. If a mistake was made, such a mistake does not entitle others to benefit from it as a matter of right. There is no material from which to infer this was an informal policy that officials in the Home Office were applying inconsistently with the Association Agreement, the Rules or the Regulations. Given that Ms Sempik was permitted to use specimen examples as demonstrating a pattern of inconsistent or irrational decision making, we do not consider that this single example permits us to conclude that the correct application of the Immigration Rules and the EEA Regulations would be unfair or unjustified.

On this material, there is a consistent pattern of decision-making:

For those applicants who had been granted leave to enter and remain under the EC Association Agreement but who had not completed 4 years in the United Kingdom prior to 30 April 2006, their claimsfail. They do not, of course, qualify under the Association Agreement, or under paragraph 255B which no longer applied.

There is nothing inconsistent in the treatment that has been afforded any of the above categories of persons. Rather, the complaint is in reality that it is unfair that the provisions governing a permanent right to remain changed on 1 May 2004 and on 20 April 2006 with the effect of requiring those who had not yet qualified under the EC Association Agreement to re-qualify from the beginning under the EEA Regulations. Part only of this group had the benefit of what amounts to transitional provisions contained in paragraph 255B of the Immigration Rules, restricted to those applicants who managed to satisfy the criteria by 30 April 2006. Those unable to do so suffer the disadvantage of having time begin again, thereby preventing them from obtaining a permanent right of residence until 1 May 2009, 5 years after accession.

Once it is established that there is neither inconsistency nor irrationality in the manner in which the Secretary of State has approached the various applications, the issue is reduced to whether the Regulations, properly construed, confer a right of permanent residence upon the particular applicant. If not, the issue is whether it was lawful for the Secretary of State to amend the Rules or promote the Regulations in such a way as to prevent this disadvantaged group from reaping the benefits of what they expected would be an unaltered scheme. Those disadvantaged must either establish that the Secretary of State’s conduct prevents him from relying upon a strict application of the Rules or Regulations in their cases either based upon principles of legitimate expectation or some free-standing right that prevents such reliance. The Secretary of State was under no duty to draft the 2006 Regulations in such a way as to provide them with a benefit that was not in contemplation when they applied for and were granted leave to enter or remain under the EC Association Agreement. They do not complain that they should have received ILR under the EC Association Agreement. The substance of their complaint is that they are treated less favourably than those, like themselves who were admitted to the United Kingdom under the EC Association Agreement, who were able to benefit from the aggregation of time spent in the United Kingdom prior to 1 May 2004. The essence of their complaint is that the Secretary of State could have adopted a policy that would have permitted this but did not do so.

This requires the Tribunal to consider the consequences of the letters provided to each appellant when last granted leave to remain under the Association Agreement and its assertion, ‘You will be eligible to apply for settlement in the United Kingdom one month before your leave expires’. If this gave rise to a legitimate expectation at all, it would, on its face, amount only to a legitimate expectation that the appellant should receive ILR under the EC Association Agreement. It could not contain within it a legitimate expectation that they would have a right to remain as a Union citizen because, at the time, Poland was not an accession state. The subsidiary issue of whether, if the right subsists, it was conditional or dependant upon a time limit in which to apply has already been disposed of.

In GN (EEA Regulations: Five years’ residence) Hungary [2007] UKAIT 00073 the Tribunal summarised its views in these terms:

GN was a Hungarian citizen who appealed against the decision of the Secretary of State of 9 February 2007 refusing his application for permanent residence as an EU national residing here. He had come to the United Kingdom in August 1997 as a student and obtained a work permit under the Worker Registration Scheme. Hungary also became a member of the European Union on 1 May 2004. In January 2006 the appellant applied for, and was granted, a residence permit as a qualified person expiring in 2011. On 16 August 2006, having been in the United Kingdom for 9 years but only 2 years since Hungary’s accession, he sought permanent residence. The appellant was, therefore, an EEA national but the same question arose as in our appeal as to whether his residence in the United Kingdom had been for five years in accordance with the 2006 regulations which had come into force on 30 April 2006.

Nobody then (or now) had been in the United Kingdom in accordance with those Regulations for 5 years. Having referred to paragraph 6 of the Schedule 4 transitional provisions, the Tribunal noted that there are no other elements of the 2006 Regulations which enabled residence before the coming into force of the 2006 Regulations to be counted in calculating the 5-year period. The Tribunal found that the appellant, although lawfully present, was not present under the 2000 Regulations until Hungary became a member of the EU on 1 May 2004 when his period of residence for the purposes of Reg 15(1)(a) of the 2006 Regulations must have commenced. He therefore had a period of two years’ residence under the 2000 Regulations to which was to be added the period of residence under the 2006 Regulations from the coming into force of those regulations, a period of just over three years and insufficient for the purposes of Reg. 15.

The appellant submitted that his residence in the United Kingdom, lawful as it was, before Hungary became a member of the European Union should count towards residence for the purposes of Article 16 of the Directive (“Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there”) and, for that reason, should count for the purpose of enabling him to have permanent residence in the United Kingdom, whatever the United Kingdom’s regulations may say. The Tribunal stated in paragraph 10 of its determination:

Ms Sempik submitted to us that each of the appellants was entitled to benefit from paragraph 6 of the transitional provisions contained in Schedule 4 to the 2006 Regulations. She submitted that GN was properly distinguishable. As appears from paragraph 2 of its determination, the Tribunal accepted that GN had come to the United Kingdom in 1997 as a student. Hungary, like Poland, became a member of the European Union on 1 May 2004. On 16 August 2006 when he applied for a residence permit he demonstrated that he had been working under the Workers Registration Scheme, which came into effect after accession. In paragraph 6 of the determination, the Tribunal recorded that GN only had a period of two years residence under the 2000 Regulations and a further period of approximately 12 months under the 2006 Regulations making a period of just over three years in total. It must follow from these passages that GN had never been a worker prior to Hungary’s accession to the Union. Accordingly, his application was bound to fail because he had never been a worker for a period of more than five years. This was to be contrasted with the position of the appellants in the present appeal, each of whom had been working under the Association Agreement prior to the accession of Poland to the Union and each of whom had been working for more than 5 years.

We accept that GN’s application was bound to fail, but the terms of the Tribunal’s determination, as we have shown by reference to the passages we have extracted above, are much wider than by reason of his failure to have established he had been a worker for five years. It is clear that the Tribunal’s thinking was directed in terms to whether any of his residence prior to accession might amount to residence in accordance with the 2006 Regulations or, pursuant to the transitional provisions, under the 2000 Regulations. It should be noted that the definition of a qualified person within Regulation 6 of the 2006 Regulations includes both a worker and a student. Had he been a Union citizen, he would have been a qualified person, irrespective of whether he had been a worker for 5 years. For these purposes, the exclusion of a student in paragraph 255 of the Immigration Rules does not distinguish the appellant in GN from the appellants in this appeal.

The appeals before us are indistinguishable from the decision in GN. The transitional provisions, the effect of which is limited to aggregating the qualifying periods set out in the 2000 and 2006 Regulations, do not benefit the appellants. The benefit of aggregation is limited to Union citizens and the appellants cannot claim the benefit of a period when they were not Union citizens. Whilst the 2006 Regulations contain transitional provisions which aggregate periods of residence under the 2000 Regulations and the 2006 Regulations, no similar provisions aggregate pre-accession residence in the United Kingdom.

Our approach to the issue of aggregation is strongly supported by our consideration of the Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004 No 1219) which came into force on 1 May 2004, the day Poland acceded to the Union, (“the Accession Regulations 2004”). Although the parties did not refer to these provisions, they are an important stage in the legislative process concerning accession State nationals.

The United Kingdom government exercised its right of derogation (permissible until April 2009 at least) from the obligation to afford rights of free movement to nationals of the accession States in order to regulate access by them to the UK labour market. Polish nationals were in general included within those entitled to benefit from the 2000 Regulations subject to various restrictions. Thus, for example, the right of an EU job-seeker to reside in the United Kingdom was modified to the extent that a Polish national, as a member of an accession State, had also to demonstrate he was self-sufficient. More importantly, the exercise of rights of free movement is subject a scheme of registration under Part 3. This draws a distinction between those Polish nationals already lawfully employed in the United Kingdom and those commencing work after 1 May 2004. The former, and all of the appellants fall into this category, were not required to apply for a registration certificate. In contrast, those commencing work after the accession date are required within a month of starting work to make such an application. The Regulations provide that such a person must obtain a certificate authorising him to work for an authorised employer. Unless he does so, he is not permitted to work. Accession State workers requiring registration were not permitted to be issued with a residence permit for the benefit of a relative or spouse under the 2000 Regulations or to benefit from Reg 15 dealing with the issue of residence permits and residence documents. Nevertheless, pursuant to Reg 5 (2), an accession State worker requiring registration is to be treated as a qualified person under both the 2000 Regulations and under Reg 6 of the 2006 Regulations provided he continues to work.

The transitional provisions set out in Reg 6 of the Accession Regulations 2004 dealt with the position of those, like the appellants, who had been granted leave to enter or remain prior to 1 May 2004. These ceased to be bound by any conditions attached to their original grant of leave to enter or remain:

This passage requires some comment. As set out above, under Reg 6 (1) where before 1 May 2004 a qualified person has been given leave to enter or remain in the United Kingdom under the 1971 Act, those conditions should cease to apply. However, the definition of a qualified person both under Reg 5 of the 2000 Regulations and Reg 6 of the 2006 Regulations defines a qualified person as an EEA national, (itself defined) who is in the United Kingdom, see paragraph 3 above. Since prior to 1 May 2004, no Polish national was a qualified person, this would mean that no Polish national could benefit from the transitional provisions set out in Reg 6. However, the position is saved by Reg 6 (4) (d) that defines qualified person in this context as a person who becomes for the purposes of the 2000 Regulations a qualified person on 1 May 2004. This expression is not without its significance because it makes clear that the appellants became qualified persons on 1 May 2004 and not before. Until they became qualified persons, they could not benefit from the 2000 Regulations.

Thus the scheme brought into operation two separate and clearly defined categories of Polish workers: those accession State workers requiring registration and those not. This is the effect of Reg 2 of the Accession Regulations 2004:

A person not requiring registration was further defined in Reg. 2 (7) by reference to his work prior to accession:

All the appellants fall within this group. Although working in the United Kingdom, they did not require registration and, therefore, fell into the category of those who were able to benefit from the 2000 Regulations without modification. It is, of course, axiomatic in this reclassification of their status that, prior to accession, they were unable to benefit from the 2000 Regulations. Thus, on 1 May 2004 but not before, these appellants became qualified persons and commenced their enjoyment of rights of free movement alongside all other Union citizens provided by the 2000 Regulations. There is nothing, however, within the 2004 Regulations that suggests such rights as they enjoyed prior to accession were to be treated as aggregated with their new-found rights under the 2000 Regulations. The 2004 Regulations provided an opportunity for the United Kingdom government to afford them those rights had it chosen to do so. The 2004 Regulations make it plain that they were provided with rights of free-movement untrammelled by the obligation to go through the registration scheme but that those rights accrued to them on 1 May 2004.

The provisions of the 2004 Regulations were modified but not replaced by the introduction of the 2006 Regulations. Apart from a series of consequential modifications, the substance of the amendments was that Polish workers like other Union workers became subject to the 2006 Regulations on their introduction on 30 April 2006 but, importantly, those workers requiring registration continued to occupy a less advantageous position than their European Union co-nationals both by reason of their duty to comply with the registration scheme and the limitation on their rights to obtain residence documentation under Part 3 of the 2006 Regulations, that is, registration certificates under Reg 16 or residence cards under Reg 17.

The effect of these provisions is that the rights and benefits of three classes of Union citizens can be identified relevant for our purposes:

The benefits attributable to each category were different. In particular, there is nothing to suggest that the appellants were entitled to stand in the same position as other Union nationals. Those, like the appellants, who are accession State nationals not requiring registration commenced enjoyment of the rights and benefits of accession from 1 May 2004, those benefits being modified along with all other Union citizens by the changes introduced by the 2006 Regulations.

Furthermore, as we say in paragraph 62, in relation to the 2000 and 2006 Regulations, the Accession Regulations are secondary, delegated or subordinate legislation with the full force of law, unlike the Immigration Rules.

The claim based on legitimate expectation has a two-fold foundation. First, reliance on the words of the Secretary of State’s letter: “You will be eligible to apply for settlement in the United Kingdom one month before your leave expires”. Secondly, the fact that the accession of Poland to the Union saw the end of the EC Association Agreement, the repercussions of which were not ameliorated by the Secretary of State amending the Immigration Rules to permit the appellants to benefit from aggregation (or, more accurately, by amending the Immigration Rules in April 2006 so as to remove the benefit of aggregation that had hitherto existed).

In GC (legitimate expectation – entry clearance) (Romania) [2005] UKAIT 0142, the decision is summarised in these terms:

These considerations are echoed in MO (Date of decision: applicable rules) Nigeria [2007] UKAIT 00057 which decided that the Immigration Rules applicable to an immigration decision are, in the absence of transitional provisions or any contrary legitimate expectation, the rules in force at the date of the decision. The Tribunal said:

The decision in AA and others (Highly skilled migrants: legitimate expectation) Pakistan [2008} UKAIT 00003 contains similar expressions of principle. Paragraphs 62 to 73 contain a summary of the scope of legitimate expectation and reiterates the requirements that an appellant has to establish:

On 10 April 2008, the Court of Appeal gave its judgment in Odelola v SSHD [2008] EWCA Civ 308. This was an appeal from the Tribunal’s decision in MO (Date of decision: applicable rules) Nigeria [2007] UKAIT 00057, see paragraph 57 above. It is important to state what the Court said about the nature of the claim. The appellant asserted that the Secretary of State had no option in law other than to decide her case according to the Immigration Rules as they stood on the date of her application but she expressly disavowed her intention of putting her claim on the basis of any legitimate expectation. This was no mere oversight. Buxton LJ set out why the appellant adopted that approach:

The appellant therefore had to assert that in deciding her case according to the Immigration Rules, the Secretary of State had not made an error of an administrative law nature, but rather had infringed a right more akin to a right in private law, that vested in the appellant at the moment at which she made her application, and of which she could not thereafter be deprived. No such right is to be found in the Immigration Rules themselves. The case accordingly had to be based on the assertion that general principles of substantive, not administrative, law prevented the Secretary of State from acting inconsistently with the appellant's right to have the case decided on the rules as they stood at the date of the application. The Court described this as “a striking claim”.

The Court rejected that contention. Buxton LJ went on to treat the Immigration Rules as a public statement by the Secretary of State as to how she intends for the time being to exercise her powers to grant admission to non-nationals to the United Kingdom. There was therefore neither a legitimate expectation that the Rules would not change nor a right akin to a private law right enforceable by an applicant to have his application decided on the basis of the Rules as they existed as at the date of the application. In our own case, of course, the appellants’ contentions must go further. They do not complain that the Rules changed between application and decision. Rather, they complain that, when they made their application, the Rules had been altered so that the requirements of establishing compliance were different and more onerous.

They can have no claim that the Secretary of State did not seek to enlarge the provisions of the 2006 Regulations to enable them to succeed because the Regulations, (unlike the Immigration Rules), are a form of secondary, delegated or subordinate legislation that have the full force of law being made under a law-making power granted by Parliament for that purpose. It was a matter for Parliament to determine what transitional provisions were to be permitted in the Regulations.

Although no submissions were addressed to us on this issue, we should mention the decision of Sir George Newman in HSMP Forum Limited v SSHD [2008] EWHC 664. The judgment was given on 8 April 2008 and, therefore, pre-dates the decision of the Court of Appeal in Odelola by 2 days. The Administrative Court Judge clearly did not have sight of the Court of Appeal’s decision.

The Highly Skilled Migrant Programme ("HSMP") embodied the Secretary of State’s policy of encouraging people to come to the United Kingdom, if they could meet the criteria outlined under the scheme. Prospective candidates were informed that the programme would be reviewed on a regular basis and that the qualifying criteria might be adjusted from time to time. The government also confirmed that it retained the right to suspend or close the programme on an indefinite basis. This reservation was clearly made in connection with future applications for permission but the guidance went on to state: "Should this occur those already in the United Kingdom, as skilled migrants, will continue to benefit from the programme's provisions." This statement confirmed, at least in connection with closure or suspension, that the benefits conferred by the scheme and to be enjoyed by skilled migrants already in the United Kingdom were continuing in character.

The application for judicial review arose out of changes to the HSMP which came into force on 7 November 2006 and, more particularly, the application of the changes to those already in the UK as skilled migrants. The new scheme was considerably more onerous and the applicants were unable or less likely to qualify. There was large scale criticism of the government’s introduction of the changes. A Parliamentary Joint Committee on Human Rights conducted an inquiry into the changes in the Immigration Rules and concluded:

The Judge in the Administrative Court treated the real question as whether, properly interpreted, the scheme conferred a commitment on the part of the government not to change the conditions in connection with the continuing implementation of the scheme. Although the point was obvious, Sir George Newman thought it necessary to emphasise that the defendant's discretionary power to make changes to the scheme under which highly skilled migrants would be admitted to the UK was not under challenge. If the original scheme was not always fully effective, it was the fault of the scheme, not the applicants whose counsel submitted (i) the existence of clear, express representations that the criteria for the grant of extensions would not be changed so as to preclude settlement being obtained in circumstances where it had been represented it would be available; (ii) clear practice prior to November 2006 that revisions to the scheme were not to affect those already on the scheme (iii) the conspicuous unfairness involved in encouraging migrants to sever links with their home country and to make the UK their main home, by issuing statements about their future entitlement to remain in the UK and thereafter subsequently withdrawing the applicability of the statements; (iv) the absence of any pressing public interest requiring that she should frustrate the expectation of highly skilled migrants who had met the criteria of the scheme which they had joined and (v) the abuse of power involved in frustrating the migrants' path to final settlement in the UK when the migrants had already embarked on the journey.

The Secretary of State adopted the analysis of the position contained in a judgment of the Asylum and Immigration Tribunal in AA and others at paras 87 to 95. The Minister's letter bore a striking resemblance to the conclusion in paragraph 95 of the AIT judgment:

That said, the January 2002 guidance stated that even if the programme were suspended, "those already in the United Kingdom, as Skilled Migrants, will continue to benefit from the programme's provisions". Later guidance stated in answer to the question "What if the scheme changes?" and "I have already applied successfully under the HSMP. How does the revised HSMP affect me?" Answer: “Not at all.”

The Judge found that the terms of the scheme, properly interpreted in context and read with the guidance and the Rules, contained a clear representation, made by the Secretary of State that once a migrant had embarked on the scheme, he would enjoy the benefits of the scheme according to the terms prevailing at the date he joined. This is the first stage of the approach identified by the Tribunal in paragraph 73 of AA and others namely establishing a promise or representation made by the Home Office that an applicant seeking an extension of leave in the future would be judged on the (then) Rules and criteria rather than any changed provisions. Sir George Newman was wholly unpersuaded that there were any significant macro-political reasons (repeating Laws LJ’s inelegant expression in Begbie) for including admitted HSMP migrants within the changes. He concluded at paragraph 61:

It is clear that the decision in HSMP Forum Limited v SSHD was decided on its own facts and, in particular, on the continuing nature and scope of the commitment entered into by the Secretary of State. There was a promise that applicants would reap the benefits irrespective of a subsequent change in the Rules. There is no such material upon which the appellants here can draw. Secondly, the decision has to be read in light of the Court of Appeal’s observations in Odelola, although we see the two decisions as being compatible with each other. Thirdly, given the changes that Poland’s accession to the EU entailed, the nature of the obligations owed by the United Kingdom government to Polish nationals had to be radically remodelled to reflect the structural changes that had taken place. The Association Agreement could no longer survive among European State partners. Hence, the commitment made in the ‘You will be eligible to apply for settlement’ letter under the Association Agreement was bound to undergo revision and the nature of the revising hand was in the field of policy, certainly macro political in character.

For these reason we do not consider that the grant of entry clearance to the appellant under the Association Agreement or the ‘You will be eligible to apply for settlement’ letter gave rise:

In GN, the Tribunal also rejected the appellant’s submission that the application of the Directive and the regulation amounted to discrimination on grounds of nationality.

The Immigration Rules are filled with distinctions between various categories of persons. These distinction may arise by reason of age (e.g., a minor or a person over the age of 65); by reason of familial relationship (e.g., child, parent, cousin or other relative); by reason of the type of application (e.g., visit visa, working holiday maker); by reason of country of origin (e.g., ‘white list’ countries, non-visa countries) or global (e.g., EU and non-EU, commonwealth and non-commonwealth); between rich and poor (e.g., those with £250,000 to invest and those unable to maintain themselves without recourse to public funds).

Insofar as one category of person satisfies different criteria in order to satisfy the requirements for entry clearance or leave to enter or remain, the Rules will render applications of one type more onerous than applications of another. Such distinctions discriminate between one group and another. The root of the expression is merely the recognition of differences. These distinctions arise because of a policy decision that certain categories of applications should satisfy different requirements. Such distinctions are in essence political decisions made as a result of a consideration of a wide variety of factors, known or unknown to an observer. The drawing of distinctions in itself is not unlawful. Even if it is arbitrary it is not necessarily unlawful so, for example, an Immigration Rule concerning 10 years lawful residence or 14 years unlawful residence (or a mixture of the two) might as easily be a rule which requires 5 years lawful residence or 7 years unlawful residence.

In particular, a different scheme aimed at permitting Bulgarian or Romanian nationals to enter the country and requiring different conditions to be satisfied and offering different benefits when compared with Polish nationals clearly distinguishes between Bulgarian or Romanian nationals on the one hand and Polish nationals on the other but that is not, in itself, unlawful. Were it to be so, there could be no distinctions made because any distinction excludes some from qualifying whilst permitting others to do so. It only becomes unlawful when it distinguishes in cases where there is no difference save for a difference that is irrelevant in the circumstances of a particular case (e.g., ‘only whites need apply’ or ‘men only’).

There is no evidence that the discrimination (in its wider, classical sense) that distinguishes the scheme that applies to Polish nationals and the scheme that is offered to Bulgarians or Hungarians renders either scheme unlawful. Indeed, there may well be some Bulgarians or Romanians who would consider the treatment afforded to Polish entrants as more beneficial. All we are prepared to say is that the schemes are different.

As the Court made clear in Odelola, albeit obiter, the concept of legitimate expectation resonated in administrative law principles and those principles were grounded in an acknowledgment that administrative policy might change. In the course of correspondence Ms Sempik wrote of the “contractual basis upon which my client was offered settlement in the United Kingdom…” (see the letter of 9 July 2004 in relation to another client, Mr Pasko). There was, of course, no contractual relationship between the Secretary of State and Mr Pasko or indeed any of Ms Sempik’s clients, including the appellants. The contractual basis was amended in her later submissions to the letter of commitment being ‘quasi contractual’ in nature or character, tantamount to a published policy. The submission was developed in paragraph 6 of the appellant’s Reply by reverting to the previous submission that the right was contractual, as embodied in the letter, and containing the essential elements of a contract, that is offer and acceptance and consideration. (Later still in the Reply, the letters of commitment were described by Ms Sempik as “quasi-contractual in character and irrevocable”).

We can see no justification for importing contractual or quasi-contractual obligations which have no place in the exercise of powers by the Secretary of State either derived from statute or the prerogative by which she permits non-nationals to enjoy entry to, or the right to remain in, the United Kingdom. In our judgment, this characterisation of the Secretary of State’s letter is unhelpful and, at worst, misleading in that it suggests a fetter on the administrative powers of the Secretary of State to change her position which, for the reasons we have given, is untenable. The Immigration Rules as a whole (and these provisions in particular) do not create a series of contracts with applicants which are actionable as private law rights. The rights that arise from them arise by statute (for example, the right of appeal to the Tribunal) or by engaging the process of good administration that the Administrative Court will review. In the wealth of literature on them, such a categorisation has never been attempted before. It would be a situation similar to that envisaged by Buxton LJ in Odelola such that “there has been a consistent pattern of unlawful behaviour on the part of the Secretary of State, albeit not previously discerned by lawyers working in this field”. The Rules, as the Court made clear in Odelola, are an expression of the Secretary of State’s policy but an expression that the Secretary of State is entitled to alter. For the reasons we have given, we do not consider that any such clog exists on the Secretary of State’s freedom to amend the Immigration Rules.

It follows that the Immigration Judges who dismissed the appellants’ appeals reached the only conclusion properly open to them on the facts. We have decided in paragraph 30 (iv) that, insofar as the appeals of Mr Wojtielewicz and Mr Liber were dismissed for failure to make an application within one month of the expiry of their leave, the Immigration Judge was in error but the error was not material because it could have had no effect upon the outcome of their appeals. The decision in the appeal of Ms Nitecka reveals a material error of law which we will remedy on reconsideration by substituting a decision dismissing the appeal. The Immigration Judge in her case had allowed the appeal as a result of her finding that the Secretary of State was bound to grant settlement to the appellant on legitimate expectation principles. She also found that the Secretary of State had failed to deal with all applicants in a similar position in an even-handed and fair way. As we have set out above neither of those propositions is sustainable.

None of the decisions envisages removal. All the appellants remain lawfully in the United Kingdom. The appellants’ human rights are not engaged.