Guarav Sat Paul Jakhu, R (on the application of) v The Secretary of State for the Home Department

A substantive legitimate expectation requires a clear and unambiguous promise or representation, free from relevant qualification. A communication that places an immigration application on hold, explains that it requires further investigation, and reassures the applicant against removal during that intervening period does not promise indefinite immunity from later removal action.

Where a statutory appeal is available, judicial review will ordinarily be refused. A challenge to the sufficiency and quality of evidence said to establish deception is generally for the fact-finding jurisdiction of the First-tier Tribunal. Inconvenience inherent in an out-of-country appeal does not ordinarily amount to a special or exceptional factor.

The applicant had leave as a Tier 4 student. Following concerns about an ETS TOEIC test, the Secretary of State placed his further application for leave on hold by letter of 10 February 2014. The letter stated that no removal action would be taken as a result of its contents while the matter was investigated.

The Secretary of State later refused the application under the Immigration Rules on the basis of deception and served notice of liability to removal under section 10 of the Immigration and Asylum Act 1999. The applicant sought judicial review, alleging insufficient evidence of deception and, by amended grounds, a substantive legitimate expectation that he would not be removed on the basis of the ETS discrepancies.

The central issues were whether the holding letter created the asserted expectation and whether judicial review was the appropriate forum despite the available statutory out-of-country appeal.

1. Permission to apply for judicial review was refused. The application to amend the grounds was granted, but the amended claim was defeated by the alternative-remedy principle.
2. A substantive legitimate expectation can arise only from a clear and unambiguous promise or representation, without relevant qualification. The letter of 10 February 2014, read fairly as a whole and in its surrounding context, was a holding communication. It made clear that the application raised complex issues, that its determination would be delayed, and that the applicant could obtain updates or submit alternative English-language evidence.
3. The statement that no removal action would be taken as a result of the letter did not create an expectation of indefinite immunity from removal. It merely reassured the applicant that removal action would not be taken during the intervening period while the application remained on hold. Its imperfect wording and lack of clarity also prevented it from meeting the required standard of an unqualified and unequivocal promise.
4. Even if the legitimate-expectation ground had been arguable on its merits, the applicant should have pursued the available statutory appeal and advanced there the contention that the removal decision was not in accordance with the law.
5. The challenge to the adequacy of the evidence of ETS deception was unsuitable for judicial review. It was a factual issue best determined by the First-tier Tribunal. The inconvenience, cost and disruption inherent in leaving the jurisdiction to exercise an out-of-country appeal were not special or exceptional factors; the threshold for any such factor was very high.
6. The Tribunal also rejected the contention that recent statutory changes had removed the available out-of-country appeal. The applicant was ordered to pay the Secretary of State's costs of the acknowledgment of service, subject to written representations, and permission to appeal to the Court of Appeal was refused.

Not stated in the judgment.