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

A legitimate expectation based on a public authority’s representation requires a clear and unambiguous promise or statement of practice. A letter which, read as a whole, communicates only a general aim to resolve a class of cases by a stated date does not create an individual promise that a particular case will be decided by that date.

Wording such as “deadline” must be construed in its full context. It does not convert an expressed general aim into a binding commitment where the letter states that no further indication can be given as to when the individual case will be considered.

The applicant, a Guinean national whose asylum claim had failed, was considered under the Secretary of State’s legacy case-resolution programme. In November 2013 she received 30 months’ discretionary leave to remain.

She sought judicial review, contending that a letter sent in December 2009 promised that her case would be reviewed by July 2011. She argued that the promise entitled her to indefinite leave to remain under paragraph 4.2 of the Discretionary Leave Policy, or required consideration of residual discretion on grounds of fairness.

Permission was initially refused on the papers but granted on renewal because the particular wording of the 2009 letter was arguably a commitment rather than an ordinary aim letter. The central issue was whether that letter contained a clear and unambiguous promise.

1. The application for judicial review was dismissed. The December 2009 letter did not give the applicant a clear and unambiguous promise that her case would be reviewed before July 2011.

2. The letter had to be read as a whole. Its opening statement described an aim to resolve legacy case records by July 2011. It then explained that cases would not be considered out of turn without exceptional circumstances and that no further indication could be given of when the applicant’s case would be considered. The reference to a “deadline” referred back to that general aim; it did not make an individual commitment.

3. The Tribunal followed the approach in R (Geraldo) v SSHD [2013] EWHC 2763 (Admin). Variations in the wording of general legacy-programme letters did not alter their character as aim letters. The applicant’s letter was another such variation.

4. R (Kadyamarunga) v SSHD [2014] EWHC 301 (Admin) was distinguishable. In that case the claimant’s accepted evidence was of an express assurance that a decision would be made by 20 July 2011. No comparable assurance appeared in the applicant’s letter.

5. The Tribunal’s remaining observations were not necessary to its decision. The Vine Report was not authoritative on legal questions of fairness. In any event, a promise to decide a case “by July 2011” would not establish a promise to decide it before 20 July 2011. The applicant therefore could not invoke paragraph 4.2 of the policy or establish unfairness on the basis advanced.

• Upper Tribunal (Immigration and Asylum Chamber): The applicant challenged the Secretary of State’s decision of 28 November 2013 to grant 30 months’ discretionary leave to remain. The application for judicial review was dismissed.

• Permission stage: Upper Tribunal Judge Gleeson refused permission on the papers. Upper Tribunal Judge Storey granted permission on renewal, considering it arguable that the December 2009 letter was a commitment rather than an aim letter.