Hassan & Ors v Secretary of State for the Home Department

Transitional provisions preserving the withdrawn seven-year child policy applied only where their express conditions were met. An acknowledgement had to confirm both receipt of an application and that the application relied on Policy DP5/96. An enforcement case also required extant enforcement proceedings and an initiated consideration of the policy.

The policy operated when enforcement action was being considered, not as a freestanding route to apply for leave to remain. Legitimate expectation required a clear, unambiguous and unqualified representation by the public authority. Mere silence, acknowledgement of an application, administrative file-opening or delay did not suffice.

Ruksana Hassan and her four children, Pakistani nationals who had overstayed in the United Kingdom, sought judicial review of the Secretary of State’s refusal to grant indefinite leave to remain and decision to grant three years’ discretionary leave.

The claimants relied on correspondence before the withdrawal of Policy DP5/96 on 9 December 2008. They argued that they fell within its transitional provisions or had a legitimate expectation that the Secretary of State would consider enforcement action under the policy. The central issues were whether either relevant transitional provision applied and whether the correspondence created a legitimate expectation.

1. The claim for judicial review was dismissed. The claimants did not fall within the Transitional Provisions and had no legitimate expectation to receive the benefit of Policy DP5/96.

2. The fourth transitional bullet required the UKBA to acknowledge in writing both that it had received an application for leave to remain and that the application relied on Policy DP5/96. The July 2007 letter acknowledged only an asylum-related application. It therefore did not satisfy the provision.

3. The fifth bullet imposed two cumulative requirements: the case had to be an enforcement case, and the UKBA had to have initiated consideration of Policy DP5/96 before its withdrawal. No enforcement proceedings had begun against the claimants. The allocation of a Home Office file number was merely an administrative record and did not show that the policy had been considered.

4. Legitimate expectation protects clear expectations and good administration. It normally requires a clear, unambiguous and unqualified representation which fairness requires the public authority to honour. The Secretary of State’s silence, acknowledgement of a valid application after withdrawal, and requests for further information made no such representation.

5. Policy DP5/96 supplied criteria for deciding whether enforcement action should proceed or be initiated. It did not create a separate or freestanding basis on which a person could apply for leave to remain. The Secretary of State was not obliged to initiate enforcement proceedings or consider the policy merely because overstayers later drew attention to it.

6. Changes in immigration law and policy could adversely affect pending applications. Consideration of leave to remain and consideration of enforcement were separate matters, and there was no general obligation to make a removal decision under section 10 of the Immigration and Asylum Act 1999 where children were involved.