Immigration Law developments by Danielle Cohen

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In the last year there have been some judgements in Immigration Law, Asylum Law, Practice/Procedure which deserve our attention.

One such case was Mehmood which concerned the application of the doctrine of substantive legitimate expectations in the context of a statutory appeal against the Secretary of State’s refusal to grant the appellant indefinite leave to remain. The appeal has its origins in a decision made on behalf of the Secretary of State for the Home Department in November 2013 to refuse the application of a Pakistani national for indefinite leave to remain in the capacity of a Tier 2 Migrant. The appeal to the First Tier Tribunal was refused and the permission to appeal to the Upper Tribunal was confined to a single issue, namely whether the decision is unlawful as frustrating a substantive legitimate expectation generated in a written communication on behalf of the Secretary of State.

Lying at the heart of this appeal is an exchange of electronic communications between the appellant’s solicitors and the UK Border Agency in September 2011. The migrant was assigned COS with an expiry date of 26th April 2014 but his application for further leave to remain has been approved with the expiry date of 27th April 2013. The solicitors queried that, and the response was that the client got an extension for the period of time it needed to take him to the total stay in the UK of five years, where he would be eligible to apply for indefinite leave to remain. Ie., for the total of five years. However, the application for indefinite leave to remain was refused because the Secretary of State argued the appellant had no leave to remain in the UK between 2nd August 2010 and 7th September 2011, a total of 400 days. Therefore, he has not spent a continuous period of five years lawfully in the United Kingdom and the application for indefinite leave to remain was refused. This was the sole reason for refusing the application.

The appellant’s argument was that the communication of 10th October 2011 by the UKBA raised the appellant’s legitimate expectation that he would later, at the appropriate time, secure indefinite leave to remain. The appellant did not make the case that he is eligible for the grant of indefinite leave to remain under the Immigration Rules. Indeed the unexpressed premise of his case is that he does not satisfy the requirements of the Rules. Rather, he is driven to rely on a principle, or a doctrine of public law, in order to make good his case. This doctrine of legitimate expectation is the response of the Common Law to failure by public authorities to honour promises and assurance made to citizens. Its central tenants are fairness and abuse of power. These two basic ingredients of what the law has come to recognise as a substantive legitimate expectation are satisfied where there is an unambiguous promise or assurance by a public official and to which the affected citizen responded. The current thought on the subject is that in order for there to be a legitimate expectation the promise has to be a specific undertaking directed at a particular individual or group.

In this case the application of this test raises the question of whether the Secretary of State represented or promised, that upon the expiry of the authorised period of leave on 27th April 2013, the appellant would be granted indefinite leave to remain. The Judge considered that the UKBA communication fell short of satisfying this requirement. In other words it just stated the rationale underlying the grant of leave to remain to the appellant. There was no suggestion that this was other than a correct exposition of the Rules and related policy guidance operative when the statement was made.

Crucially the statement said nothing about continuous residence explicitly. In addition the UKBA communication was not made in a vacuum. Rather, the context included the relevant provisions of the Immigration Rules and therefore the Judge considered that the communications could not be construed as conveying that the continuous residence requirements of the Rules would, in the appellant’s particular case, be waived or relaxed. It contained no unambiguous or unqualified promise or assurance to this effect. Therefore the appeal was dismissed.

May 19, 2016 · Tim Kevan · Comments Closed
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