Alliance of Turkish Businesspeople Ltd, R (on the application of) v Secretary of State for the Home Department

A published immigration policy may create a substantive legitimate expectation where it contains a clear and unambiguous representation about the future application of the policy, and reliance on that representation is reasonable. The general ability to change policy does not prevent such an expectation. Frustration of the expectation is unlawful only where it is so unfair as to amount to an abuse of power. The question is whether the change is objectively justified as a proportionate response to a legitimate public-interest aim. The court assesses fairness itself, having regard to matters including reliance, the breadth of the affected class, the nature of the decision, any mistake, and the extent of the policy change.

The claimant challenged the Secretary of State’s decision on 16 March 2018 to change the policy governing indefinite leave to remain for Turkish businesspeople and their dependants. Under the former policy, based on the 1973 Immigration Rules and guidance concerning the Ankara Agreement, applicants could apply for indefinite leave to remain after four years without an English-language requirement or fee.

The new policy required five years’ residence, an English-language and life-in-the-UK requirement, and payment of a fee. Permission was granted only on the substantive legitimate-expectation ground. The central issues were whether the former materials made a clear and unambiguous representation on which reliance was reasonable, and whether frustrating that expectation was objectively proportionate.

1. The claim for judicial review was dismissed. The court held that the guidance made a clear and unambiguous representation that future applications for indefinite leave to remain by persons granted leave under the Ankara Agreement would be decided under HC510, the 1973 Rules. It was reasonable to rely on that representation because applicants were told that the 1973 policy applied as a result of the Ankara Agreement. They were not to be taken to anticipate a later change in the legal interpretation of that agreement.

2. The Secretary of State retained power to change immigration policy. Ordinarily, publication of a policy states only the policy applying at the time. However, the fair meaning of particular guidance may amount to a promise about future application. Everything depends on the wording, circumstances and statutory discretion involved.

3. The expectation was substantive. Frustration would therefore be unlawful only if it were so unfair as to amount to an abuse of power. The applicable question was whether frustration could be objectively justified as a proportionate response to a legitimate public-interest aim. The court, rather than the primary decision-maker, judged whether the result was unfair or abusive.

4. The aims of managing migration, avoiding disadvantage to Turkish nationals who had relied on the former route, and aligning the route more closely with comparable Points Based System routes were legitimate. The changes were proportionate. The English-language requirement promoted integration, the fee contributed to operating the system, and the additional year was not excessive compared with other settlement routes. The changes were limited and reduced their impact. More extensive or onerous requirements might have produced a different result.

5. The standstill-clause challenge was not before the court. The claim was dismissed.

First-instance judicial review. Permission was granted only on the substantive legitimate-expectation ground. The claimant renewed its application to the Court of Appeal concerning the separate standstill-clause ground, which was not determined in this judgment.