Waseem Zia & Anor, R (on the application of) v The Secretary of State for the Home Department

A substantive legitimate expectation requires a representation or assurance that is clear, unambiguous and devoid of relevant qualification. Its existence depends on the precise terms used, the circumstances in which it was made, and the relevant statutory or discretionary context.

An applicant seeking to rely on such an expectation must deal fairly with the public authority, including by disclosing material contradictory information. Incorrect helpline information did not create a binding expectation where the applicant knew that only a caseworker could decide the application, knew of the mandatory documentary requirement, had received contrary advice, and did not rely detrimentally on the later information. The public interest in consistent decisions under the Immigration Rules also weighed against enforcing the alleged assurance.

The applicants, brothers seeking leave to remain as Tier 1 (Entrepreneur) Migrants, relied on funds held by their uncle. Their applications failed because the uncle’s bank letter did not name either applicant, as required by the specified-document provisions of the Immigration Rules.

Before applying, the first applicant made several calls to the respondent’s helpline. A supervisor explained that a caseworker would decide whether a non-compliant application could succeed. Two days later another helpline operator gave apparently inconsistent information about the bank letter. Permission for judicial review was limited to whether that call created a substantive legitimate expectation that the applications would succeed despite non-compliance with the Rules.

1. The applications for judicial review were refused. The applicants had no substantive legitimate expectation that their non-compliant applications would be granted.

2. The governing requirement, drawn from R v Inland Revenue Commissioners ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545, is a representation or promise that is clear, unambiguous and devoid of relevant qualification. Following R (Coughlan) v North and Eat Devon Health Authority [2001] QB 213, the Tribunal examined the precise terms of the alleged assurance, its circumstances, and the relevant discretion.

3. The supervisor had repeatedly and unequivocally told the first applicant that helpline staff could only provide website information and that the caseworker alone would decide the application. The applicant therefore knew that the subsequent operator lacked authority to give a binding assurance about its outcome. The later information was plainly inconsistent with the earlier advice and with the mandatory terms of rule 245DD. A person invoking legitimate expectation must act fairly towards the authority, which here required disclosure of the contradictory prior advice so that the position could be clarified.

4. Independently, the later helpline information was incorrect. The applicants had already been unable to obtain a compliant bank letter, so there was no detrimental reliance on it. Applying the considerations identified in PF (Nigeria) v SSHD [2015] EWCA Civ, the Tribunal also attached strong weight to the public interest in consistent and predictable decisions under the applicable Rules.

5. The Secretary of State retained statutory discretion to grant leave outside the Rules, but that did not itself justify departure from rule 245DD, which states that an application failing its requirements will be refused. There was no reason to exercise that discretion. It was unnecessary to determine the separate English-language-certificate issue.

not stated in the judgment.