Thapa, R (on the application of) v Secretary of State for the Home Department

A legitimate expectation of a substantive immigration benefit requires an unequivocal and unqualified representation, an objectively reasonable expectation formed after full disclosure, and unfairness in the public body's departure from it. Work permit approval does not itself promise leave to remain where the communication expressly reserves a separate decision on leave. Even where detriment is shown, the court must consider whether exceptional circumstances and the wider public interest justify departure from the expectation.

The claimant sought judicial review of decisions to remove him to Nepal and refuse him leave to remain. Permission was ultimately limited to a legitimate-expectation challenge based on a letter from Work Permits UK stating that his employer's application for a 36-month work permit had been approved and that the claimant's leave to remain would be considered.

He contended that, relying on advice from his former solicitors, he had withdrawn his asylum appeal. The central issue was whether the letter created a legitimate expectation that he would be permitted to remain in the United Kingdom, and, if so, whether it would be unfair to depart from that expectation.

1. Claim dismissed. The letter did not create a legitimate expectation that the claimant had, or would automatically receive, leave to remain.
2. The applicable principles, drawn from R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213, required an unequivocal and unqualified representation, full disclosure by the claimant, an objectively reasonable expectation, and unfairness in the public body's departure from the promised substantive benefit. The court also had to consider any overriding public interest and the possibility that the representation resulted from mistake.
3. The letter clearly distinguished approval of the employer's work permit application from the later consideration of the claimant's leave to remain. A sensible reading could not support an expectation that work permit approval alone conferred leave. Any advice to that effect was incorrect.
4. The claimant did not satisfy paragraph 131(i) of the Immigration Rules because he had entered the United Kingdom illegally and had not entered with a valid work permit. The Secretary of State nevertheless retained a discretion to consider leave outside the Rules, or the claimant could leave and apply under the Rules.
5. Although withdrawal of the asylum appeal was a detriment, a genuinely held fear of persecution could support a fresh asylum application. The claimant had not shown exceptional circumstances requiring leave outside the Rules. His circumstances had to be balanced against the wider public interest in maintaining effective immigration control.
6. The claimant was ordered to pay the defendant's costs on the standard basis, to be assessed if not agreed.