Schmidt v Secretary of State for Home Affairs (Schmidt v Home Office)

An administrative decision may attract a duty of fairness where it affects a right, an interest or a legitimate expectation. An alien admitted for a fixed period has no right or legitimate expectation that permission will be extended after that period expires. An extension may therefore be refused without reasons or a hearing.

The Home Secretary may control an alien's stay for any purpose considered conducive to the public good. He may also adopt and publish a general policy, provided that he remains willing to consider reasons for making an exception. By contrast, revocation before the permitted period expires may require an opportunity to make representations because the alien legitimately expects to remain for that period.

Two United States citizens were admitted for limited periods to study at the Hubbard College of Scientology. They and other alien students sought extensions after the Government ceased to recognise Scientology establishments as educational establishments for immigration purposes. The Home Secretary refused the extensions but allowed a short period for departure.

The students alleged that the refusals pursued an unauthorised purpose, unlawfully fettered the Home Secretary's discretion and breached natural justice. Ungoed-Thomas J struck out their statement of claim under Order 18, rule 19 as disclosing no reasonable cause of action or as an abuse of process.

On appeal, the central questions were whether the Home Secretary's purpose and general policy were lawful, whether the students possessed a right or legitimate expectation attracting procedural fairness, and whether the claim was suitable for summary striking out.

1. Appeal dismissed by a majority. Lord Denning MR and Widgery LJ held that the statement of claim was unsustainable and had properly been struck out. Russell LJ dissented because he considered that one or more of the students' arguments might succeed at trial and that summary striking out was therefore inappropriate. The appeal was dismissed with costs, and leave to appeal was refused.

2. Per Lord Denning MR, with Widgery LJ agreeing, an alien has no right to enter the country or to remain beyond the period for which permission was granted. The relevant Aliens Order gave the Home Secretary ample power to refuse admission, impose a time limit and refuse an extension. The Home Secretary could use that power for any purpose which he considered conducive to the public good or to the interests of the people of the country. The decision to restrict the growth of Scientology was not shown to involve an ulterior or unauthorised purpose.

3. The Home Secretary could adopt a general immigration policy and instruct immigration officers which educational establishments were recognised. The principle in Rex v Port of London Authority permitted the honest adoption of a policy where the decision-maker remained willing to hear reasons why it should not apply in an exceptional case. The Scientology policy did not unlawfully fetter the Home Secretary's discretion.

4. Procedural fairness does not depend on whether a power is described as administrative or judicial. It depends on whether the person affected has a right, an interest or a legitimate expectation which fairness requires the decision-maker to respect. A person admitted for a limited period has no right or legitimate expectation of renewal after that period expires. The Home Secretary could therefore refuse an extension without giving reasons or first providing a hearing.

5. Lord Denning MR added that revocation before the permitted period expired would stand differently. The alien would legitimately expect to remain until the stated expiry date and ought to receive an opportunity to make representations. Widgery LJ likewise accepted that renewal may attract different considerations where it can reasonably be expected, but held that the Aliens Order created no such expectation in this case.

6. Even if a duty of fairness had arisen, Lord Denning MR found no unfairness. The students received a two-month extension in which they could have made representations, and the Home Secretary remained willing to consider them.

1. Court of Appeal: By a majority of two to one, dismissed the plaintiffs' appeal, affirmed the striking-out order, awarded costs against the plaintiffs and refused leave to appeal.
2. High Court: Ungoed-Thomas J, on 22 October 1968, struck out the statement of claim as disclosing no reasonable cause of action or as an abuse of the process of the court. No citation is stated in the judgment.