Emiantor, R (On the Application Of) v The Secretary of State for the Home Department

An assurance by a public authority gives rise to legitimate expectation only when it is clear, unambiguous and devoid of relevant qualification. The question is objective: the court asks how the words and conduct would be understood by a reasonable person in the applicant’s position, considering the circumstances known at the time. The applicant’s own understanding is evidence, but not decisive. Statutory context is important. Where the UK Borders Act 2007 imposes a mandatory duty to deport foreign criminals, withdrawal of an earlier deportation notice because a conviction appeal is pending, and cancellation of reporting restrictions, will not ordinarily communicate abandonment of any future deportation attempt. Expressions such as ‘case closed’ and ‘no longer subject to deportation’ may refer only to the absence of a current case.

Mr Peter Emiantor appealed from Upper Tribunal Judge Frances’s refusal, on 13 September 2019, of permission to bring judicial review proceedings. He challenged a further deportation notice issued by the Secretary of State after an earlier notice had been withdrawn while his criminal appeal was pending.

He relied on an alleged settlement term and on statements made by a Home Office official that his deportation case was closed and that he was no longer subject to deportation. The Court of Appeal treated the appeal as the substantive hearing of the judicial review claim. The central issues were whether any agreement or legitimate expectation prevented the Secretary of State from pursuing future deportation.

Disposition. The court granted permission to apply for judicial review but dismissed the substantive claim. Lady Justice Asplin and Lord Justice Lewis agreed with Lord Justice Floyd’s judgment.

1. The appellant accepted that the settlement agreement concerned the damages claim only and contained no term preventing future deportation. The court therefore considered the legitimate-expectation issue. The later correspondence evidenced what the appellant believed the official meant, but not the objective meaning of the official’s words. By analogy with Oceanbulk Shipping and Trading SA v TMT Asia Limited [2010] UKSC 44, it was evidence of belief and no more.
2. In assessing an alleged assurance, the court first considered what was said and done, accepting uncontradicted evidence at its highest. It then asked how the words and conduct would be understood by a reasonable person in the appellant’s position, having regard to the surrounding circumstances. The appellant’s subjective understanding was not decisive.
3. An assurance capable of founding legitimate expectation must be clear, unambiguous and devoid of relevant qualification. The statements that the case was closed and that the appellant was no longer subject to deportation could mean only that there was no current deportation case following withdrawal of the earlier notice. They did not clearly communicate that all future attempts at deportation had been abandoned.
4. The statutory context was decisive. Section 32(5) of the UK Borders Act 2007 imposed a mandatory duty to deport foreign criminals, subject to limited exceptions, and section 32(4) stated that such deportation was conducive to the public good. The withdrawal of the earlier notice during the criminal appeal, the compensation issue arising from detention, and cancellation of reporting restrictions did not naturally suggest abandonment of future deportation. The earlier indication that deportation would be considered after the appeal also pointed against that interpretation.
5. The court left open whether the Secretary of State could lawfully fetter the exercise of the statutory duty by such an assurance. It proceeded on the assumption that she could, without endorsing that assumption. The agreement and legitimate-expectation grounds therefore failed, and the substantive claim was dismissed.

• Court of Appeal (Civil Division): Treated the appeal as the substantive hearing of the judicial review claim, granted permission, and dismissed the claim.
• Upper Tribunal (IAC): Upper Tribunal Judge Frances refused permission on 13 September 2019 as totally without merit. Permission to appeal was refused on 23 October 2019, after which Males LJ granted permission to appeal.