Ansar Mehmood v The Secretary of State for the Home Department

A substantive legitimate expectation requires an unambiguous and unqualified promise, representation or assurance by the public authority. The communication must be construed fairly, reasonably and objectively in its full legal context. A statement explaining the duration of leave, which does not promise that a requirement of the Immigration Rules will be waived, does not generate an expectation of indefinite leave to remain.

In any event, an assurance cannot require a public authority to act inconsistently with its public-law duty to apply the governing rules. Equality before the law, consistent application and legal certainty reinforce that conclusion.

The appellant, a Pakistani national, sought indefinite leave to remain as a Tier 2 migrant. His earlier lawful residence had been interrupted by a period of approximately 400 days without valid leave. The Secretary of State refused the application because he had not completed five years of continuous lawful residence required by the Immigration Rules.

The First-tier Tribunal dismissed his appeal. Permission to appeal to the Upper Tribunal was confined to whether a 2011 UK Border Agency email, explaining why a grant of leave ended before the expiry of his certificate of sponsorship, created a substantive legitimate expectation that he would later receive indefinite leave to remain.

1. The appeal was dismissed. The email did not create a substantive legitimate expectation that the appellant would receive indefinite leave to remain.

2. The necessary first question is whether the public authority made an unambiguous representation, promise or assurance free from relevant qualification. The email merely explained that the duration of leave was intended to take the appellant’s total stay to five years in an eligible category. Read fairly, reasonably and objectively, it said nothing expressly or impliedly about the separate requirement of continuous lawful residence.

3. The email had to be read in the context of the applicable Immigration Rules. It contained no clear promise that the continuous-residence requirement would be waived or relaxed. Nor could it reasonably have been understood as doing so. The asserted expectation therefore had no factual or legal foundation.

4. The Tribunal added, obiter, that even an express and unconditional assurance of indefinite leave could not have been enforced if its performance would require departure from the Rules. Applying the approach in R v North and East Devon Health Authority, ex parte Coughlan, [2001] QB 213, the public authority’s duty to apply the Rules and the overriding legal framework would defeat such an expectation.

1. Upper Tribunal (Immigration and Asylum Chamber) Dismissed the appeal from the First-tier Tribunal: [2014] UKUT 469 (IAC).

2. First-tier Tribunal Dismissed the appellant’s appeal against the refusal of indefinite leave to remain.