Adam, R (On the Application Of) v Secretary of State for the Home Department

A legitimate expectation requires a clear and unambiguous representation. Conflicting documents, administrative confusion or a mistake cannot ordinarily create such an expectation. A representation relayed orally through a Member of Parliament does not amount to a grant of immigration leave or the written notice required by the Immigration Act 1971. Where no clear representation has been made directly by the decision-maker, the court will not grant declaratory relief requiring a different period of leave. Administrative delay and misleading information may nevertheless justify consideration of protective steps to avoid prejudice to any later appeal rights.

The claimant, a Somali national, sought judicial review of the Secretary of State’s decision of 8 January 2003 concerning the period of exceptional leave to remain granted after his asylum claim was refused.

The Home Office documents sent in August 2001 were confusing. One covering letter referred to four years’ leave, while the formal grant and other decision documents stated that leave was granted for one year. Later statements made by officials to Members of Parliament were communicated to the claimant’s representatives as indicating four years’ leave, but the Home Office subsequently confirmed that only one year had been granted.

The central issue was whether these circumstances created a legitimate expectation that four years’ exceptional leave had been, or ought to have been, granted.

1. The application was dismissed. The claimant had been granted exceptional leave to remain for one year. The status letter was the relevant written grant, and the conflicting covering letter did not alter that legal position.
2. A legitimate expectation must be founded on a clear and unambiguous representation. The August 2001 documents created, at most, confusion and uncertainty. Three of the four relevant documents referred to one year’s leave, and the claimant’s solicitors recognised that there had been a mistake.
3. The statements communicated through the Members of Parliament could not establish a legitimate expectation. They were reports of an oral statement by a Home Office official, were not made directly to the claimant, were wrong, and were known to be unreliable by the claimant’s solicitors. An oral statement to an MP was neither a grant of leave nor the written notice required by the Immigration Act 1971.
4. The court observed that the position might have been different if the Home Office had subsequently sent a letter purporting to grant four years’ leave. No such letter had been sent, however, and the material relied upon could not support declaratory relief.
5. The court expressed concern that the Home Office’s delay and the misleading information given through the MPs might have caused the claimant not to apply in time for an extension of his one year’s leave. If an out-of-time application for an extension were refused, the Home Office was invited to consider granting one month’s leave so that the claimant would not be prejudiced in exercising any appeal rights. This was an observation concerning possible future administrative action, not part of the order dismissing the claim.