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

A claimant relying on a personal legitimate expectation must establish that the representation was genuinely made and that she understood and accepted it. In the absence of a clear general policy, an asserted representation of favourable treatment will not ordinarily found a legitimate expectation where the claimant did not know of it or act to her detriment in reliance on it.

On a judicial review application, disputed factual evidence is ordinarily accepted in the absence of cross-examination, unless documents show it cannot be correct. A party challenging an important factual assertion should apply to cross-examine its maker.

The applicant, a Vietnamese national whose asylum appeal rights had been exhausted, sought judicial review of the Secretary of State’s decisions of 12 February 2014 refusing leave to remain.

She relied on a purported letter of 26 August 2011 stating that, subject to security checks, leave would be granted under the Immigration Rules. She contended that it created a legitimate expectation which the Secretary of State could not later withdraw.

The central issues were whether the letter had genuinely been sent and, if it had, whether it could give rise to an enforceable legitimate expectation.

1. Claim dismissed. On the balance of probabilities, the purported letter of 26 August 2011 was not a genuine letter sent by the Secretary of State.

2. The applicant bore the burden of proving both that the letter was sent and that it was genuine. Production of a document said to be genuine did not shift that burden to the Secretary of State.

3. The Secretary of State’s evidence was materially unchallenged. Internal records showed the case as a refusal case and contained no audit trail for a potential-grant letter. The appearance of the document also differed from genuine letters known to the witness. The applicant neither applied to cross-examine that witness nor obtained evidence from her former solicitor explaining the document’s receipt, the delayed date stamp, or any advice given to her.

4. In any event, the legitimate-expectation claim would have failed. This was not a claim based on a clear general policy. The applicant was unaware of the asserted representation and did not act to her detriment in reliance on it. Her later paid Article 8 application could not constitute reliance because it was made without knowledge of the purported promise.

5. Further, the letter was conditional upon security checks and at most indicated a provisional intention to grant leave. Even if it had been sent, the Tribunal would have needed to balance the applicant’s limited affected interest against the public interest in consistent application of the Immigration Rules.

6. Permission to appeal was refused under rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008. Costs were summarily assessed at £10,000.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review claim dismissed. Permission to appeal was refused.
• Earlier immigration proceedings: The applicant’s asylum claim was refused and her appeal rights were exhausted on 23 April 2003. Further representations were made in 2011. The Secretary of State’s decisions of 12 February 2014 concluded that she did not qualify for leave to remain.