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

A substantive legitimate expectation requires a clear, unambiguous and unqualified assurance that a policy will continue for the person or group concerned. Guidance which merely describes current policy does not provide such an assurance, even where the policy has remained unchanged for many years.

Immigration policy remains capable of generating a legitimate expectation in an appropriate case. Nor does a public authority’s mistaken understanding of the law prevent an assurance from having legal consequences. If an expectation exists, its frustration must be objectively justified as a proportionate response to a legitimate public aim. That assessment must address people already within the scheme and consider whether prospective change or transitional protection could achieve the aim with less unfairness.

The appellant represented Turkish businesspeople and their dependants who had entered a route under which Home Office guidance stated that applications for indefinite leave to remain would be considered under the Immigration Rules in force in 1973. After judicial decisions established that the Ankara Agreement did not require settlement rights, the Secretary of State changed the scheme. The new requirements included five years’ residence, knowledge of English and life in the United Kingdom, and an application fee.

Dingemans J, in [2019] EWHC 3649 (Admin), found a substantive legitimate expectation but held that its frustration was proportionate. The appellant appealed the proportionality ruling. The Secretary of State cross-appealed against the finding that a legitimate expectation existed. The central questions were whether the guidance assured existing participants that the former policy would continue and, if so, whether immediate change without transitional protection was proportionate.

1. The appeal was dismissed and the cross-appeal allowed. The guidance did not contain a statement capable of creating a substantive legitimate expectation. It described the position when issued but gave no assurance that people already within the scheme would continue to be governed by the 1973 Rules if policy changed. The longevity of the former arrangements did not alter the inherently changeable character of immigration policy. The judge’s contrary conclusion was wrong: per Flaux LJ, with whom Newey LJ and Rose LJ agreed.

2. The doctrine of legitimate expectation can apply in immigration cases. The fact that Immigration Rules state administrative policy and may be amended does not exclude the doctrine where a sufficiently specific assurance has been made. Guidance can supply such an assurance. The two HSMP Forum decisions were correctly decided because the guidance there expressly protected existing participants against future revisions.

3. A representation made under a mistaken understanding of the law can also create a legitimate expectation. Mistake does not make the doctrine unavailable or impose a separate threshold. The decisive questions remain whether the representation was clear, unambiguous and devoid of relevant qualification, whether it assured continuation of the policy, and how it would reasonably have been understood by its audience.

4. Although unnecessary to the disposition, the judge’s proportionality assessment was deficient. If a legitimate expectation had existed, it would have been necessary to examine whether immediate application of the changes to existing participants was necessary. The assessment also had to consider prospective change and transitional provisions preserving the former policy for those already within the scheme. The Secretary of State’s evidence did not show that such protection was impractical or that immediate change was required.

5. Had a legitimate expectation arisen, the Court would therefore have allowed the appeal because its immediate frustration was not shown to be proportionate. Since no qualifying representation existed, however, the cross-appeal was allowed, the substantive appeal was dismissed, and the judgment below was upheld on different grounds.

1. Court of Appeal (Civil Division): In [2020] EWCA Civ 553, allowed the Secretary of State’s cross-appeal, dismissed the appellant’s appeal and upheld the judgment below on different grounds.
2. High Court, Queen’s Bench Division (Administrative Court): Dingemans J, in [2019] EWHC 3649 (Admin), found that the guidance created a substantive legitimate expectation but held that the policy changes were a proportionate and justified frustration of it.