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

A refusal of leave to enter remains valid until quashed or withdrawn. Where administrative errors deprive a person of an appeal, the position may be remedied by withdrawing the original decision and issuing a fresh decision carrying an equivalent right of appeal. A legitimate expectation requires a representation that is clear, unambiguous and unqualified. Immigration disputes do not engage Article 6 of the Convention. Administrative mistakes, without deliberate manipulation, bad faith or conspicuous unfairness arising from unlawful executive action, do not establish duplicity or abuse of power. A claim for damages cannot succeed where the underlying unlawful detention claim is not pursued and no recognised basis for damages is established.

The claimant, a Pakistani national, was refused leave to enter and removed after an immigration officer cancelled her entry clearance. Confusion within the First-tier Tribunal and the Secretary of State’s offices led to the claimant losing the opportunity to pursue her out-of-country appeal against that decision.

After judicial review proceedings were commenced, the Secretary of State withdrew the original refusal and issued a fresh refusal carrying a new out-of-country right of appeal. The claimant nevertheless pursued remaining grounds alleging legitimate expectation, interference with her right to a fair trial, duplicity, bad administration, abuse of power, and entitlement to aggravated or exemplary damages.

1. The claim failed. The Secretary of State’s withdrawal of the original refusal and issue of a fresh refusal restored an out-of-country right of appeal identical to the right the claimant had lost through administrative mistakes. The public law principle of validity meant that the original decision remained valid until it was quashed or withdrawn. Consequently, the grounds dependent on that decision could not succeed.
2. No legitimate expectation arose. The requirement is a representation that is clear, unambiguous and unqualified, as stated in R v Inland Revenue Commissioners, ex parte MFK Underwriting Ltd [1990] 1 WLR 1545. The communication that an application had been issued was made to the Tribunal and did not represent to the claimant that the refusal decision had been withdrawn.
3. Article 6 of the Convention did not apply to immigration disputes, following Maaouia v France (2000) 33 EHRR 1037 and MT (Algeria) v Secretary of State for the Home Department [2010] 2 AC 110. In any event, the fresh decision provided a new right of appeal.
4. The conceded administrative errors did not amount to duplicity, bad faith or abuse of power. The allegations required more than conflicting communications caused by confusion. The analysis in R (S) v SSHD [2007] EWCA Civ 546, as cited in MM (Zimbabwe) v Secretary of State for the Home Department [2012] EWCA Civ 135, showed that conspicuous unfairness was not a freestanding ground absent unlawful action by the Secretary of State.
5. There was no basis for aggravated or exemplary damages. The unlawful detention claim was not pursued, and delay or distress could not be remedied by granting a right of entry.