Patel & Ors v The Secreatary of State for the Home Department

A decision-maker responding to an earlier unlawful decision must consider the earlier illegality, the individual’s reasonable reaction to it and its consequences. The decision-maker must also consider any public interest in requiring compliance with the conditions for the benefit sought. The benefit need not be granted unless no reasonable decision-maker could refuse it. If the decision-maker waives conditions for some affected persons, different treatment must have a rational basis. The court reviews the resulting decision for legality and does not substitute its own preferred exercise of discretion.

The claim arose from unlawful changes made in 2006 to the Highly Skilled Migrant Programme. The Claimant had left the United Kingdom after the changes and later returned. He sought indefinite leave to remain, relying on his legitimate expectation that the original four-year settlement terms would apply and on the Secretary of State’s policy of treating certain periods abroad as periods spent in the United Kingdom.

The Secretary of State refused indefinite leave to remain but granted further limited leave. The central issues were whether the Claimant had a legitimate expectation of immediate indefinite leave, whether the Secretary of State had adequately considered the consequences of her earlier unlawful conduct, and whether the distinction between different groups of migrants was rationally justified.

1. Legitimate expectation. The Claimant’s expectation was that the HSMP terms prevailing when he joined would be applied. Those terms required four years’ continuous leave and residence in the United Kingdom before indefinite leave could be granted. Since he had not satisfied those conditions, refusal of indefinite leave did not itself frustrate that expectation: [73]-[77], [148].
2. Effect of earlier illegality. A later decision must take account of the earlier unlawful action, the reasonableness of the individual’s response and its consequences. It must also consider the public interest in requiring satisfaction of the relevant conditions. The benefit need only be granted where no reasonable decision-maker could refuse it: [78]-[83], [101]-[108], [149].
3. Unequal treatment. Different treatment of comparable persons is unlawful only if it lacks a rational basis. The Secretary of State had no rational basis for distinguishing between migrants who left after the November 2006 changes and those who, like the Claimant, did not return because of them: [112]-[124].
4. The distinction between the April and November 2006 changes could in principle have a rational foundation. However, the Secretary of State had to consider whether the Claimant’s departure in August 2006 was a reasonable reaction to the April changes and give reasons for her conclusion: [125]-[129], [143], [151].
5. The April and June 2012 decisions failed to explain the reasoning required and unlawfully treated the Claimant’s period abroad as irrelevant to settlement. The June 2012 notices refusing indefinite leave were quashed. The declarations concerning PG1 and PG2 were refused because they were vague and the legality of treatment depended on the facts of individual cases: [138]-[152].