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

A public authority may be required to honour a policy or established practice where departing from it produces conspicuous unfairness amounting to an abuse or misuse of power. The claimant’s knowledge of the policy is not essential to the existence of a legitimate expectation. The court should ask what the authority committed itself to do, whether its conduct was unlawful, and what remedy is appropriate. A long sequence of administrative errors, unexplained changes of position and failure to apply an applicable policy may justify declaratory relief, even where the relevant period has expired. The court should not itself determine a later immigration decision without the information required for that decision.

The claimant sought judicial review of the Secretary of State’s refusal to grant exceptional leave to remain. He had applied for asylum in 2000 and was refused in 2001, when an unpublished Home Office practice generally provided four years’ exceptional leave to remain for failed Rwandan asylum seekers, subject to stated exceptions.

The Secretary of State initially disputed the claimant’s nationality, but accepted in 2004 that he was Rwandan. The practice had ended in 2002. The claimant challenged the refusal to reconsider his position, relying on legitimate expectation and conspicuous unfairness arising from the handling of his case and the unexplained change in the Secretary of State’s stance.

1. The claim succeeded. The court declared that exceptional leave to remain should have been granted to the claimant in June 2001. It declined to direct the grant of indefinite leave to remain, since the court lacked the information necessary to determine that later question.
2. The court adopted the approach in London Borough of Newham v Bibi [2001] EWCA Civ 607. In legitimate-expectation cases the practical questions are: what the public authority committed itself to by promise or practice; whether it acted, or proposes to act, unlawfully in relation to that commitment; and what the court should do.
3. The claimant’s awareness of the unpublished practice was immaterial. A legitimate expectation, and the fairness required of the authority, do not depend on the individual having known of the policy.
4. The court treated R (Bakhtear Rashid) v Secretary of State for the Home Department [2005] EWCA Civ 744 as establishing the relevant general approach. The question was whether the Secretary of State’s treatment involved conspicuous unfairness amounting to an abuse or misuse of power. Bad faith was unnecessary.
5. Looking at the case overall, including the prolonged delays, the failure to disclose the operative guidance, the incorrect and shifting explanations of the policy, and the unexplained change in the position on nationality, the court found conspicuous unfairness. The unfairness was not deliberate, but it was sufficiently serious to justify relief.