Court of Appeal explains the distinction between procedural and substantive fairness and calls for rigour in the conduct of public law litigation

R (Talpada) v Secretary of State for the Home Department [2018] EWCA Civ 841, 24 April 2018

The factual background to the appeal concerned the Secretary of State’s refusal to grant leave to remain to the appellant as a Tier 2 (General) Migrant under the Points Based System. Whilst it was not disputed that the application had been defective in that the sponsor sought to re-use a certificate of sponsorship (CoS) which had already been used in a previous unsuccessful application, it was the sponsor’s case that she had done this based on the erroneous advice of a Customer Services’ Adviser employed by the respondent. Furthermore, it was accepted by the respondent that owing to its own administrative error the CoS had not been marked as “used” when it was originally used by the appellant in his earlier application. It was only because of this omission that the sponsor was able to add a note to the CoS when it was re-used in the second application. Unusually therefore, in granting permission to appeal against the refusal of the Upper Tribunal to allow a judicial review, the sponsor was directed to provide a witness statement detailing the erroneous advice of the Customer Services’ Adviser.

The appellant’s grounds of appeal were based on common law fairness concerning the respondent’s failure to put him on notice of the defect in his application (R v Secretary of State for the Home Department, exp. Doody [1994] 1 AC 5), misapplication of the respondent’s evidential flexibility policy and paragraph 245AA of the immigration rules, which it was said should have been applied in his favour, and legitimate expectation (substantive fairness).

In dismissing the appeal, Hallett LJ held that there was no common law unfairness in the respondent’s failure to advise of the defect (Mudiyanselage v Secretary of State for the Home Department [2018] EWCA Civ 65 applied), that the evidential flexibility policy and paragraph 245AA did not apply, and that the doctrine of legitimate expectation could not apply where, there was no unambiguous promise or assurance that the sponsor could re-use a used CoS number and none by a public official in whom the sponsor could repose trust. The evidence from the sponsor did not come close to the criteria for establishing legitimate expectation.” [47].

The Secretary of State’s own responsibility for the events which arose was considered by Underhill LJ as follows:

“I have not found this case straightforward.  There is no doubt that a member of the Home Office staff made an administrative mistake in failing to mark CoS C2G3K55212A as “used” following the rejection of the Appellant’s first application.  Had he or she done so, it would not have been possible for Mrs Yar to add a sponsor’s note to it and the Appellant would, presumably, not have tried to rely on it for the purpose of his second application.  The Secretary of State thus created the opportunity for the error in that application that led to it also being rejected.  It is not difficult to see how it could in those circumstances be described as “unfair” for her to rely on that error.  But in the end I feel compelled to agree with Hallett and Singh LJJ that it was not unfair in the relevant sense.  The crucial point is that both the rules and the published guidance to sponsors make it clear that a CoS reference number can only be used once, and thus that a number that has been used in support of an unsuccessful application should not be re-used.  The fact that Mrs Yar would have been stymied in her attempt to re-use the old CoS but for the failure to mark it as “used” does not alter the fact that it was her own decision, ignoring the explicit terms of the guidance, to set off down the wrong course.  In those circumstances I cannot regard the rejection of the second application as substantively unfair.” [52]

In his judgment Singh LJ explained the distinction between procedural fairness and substantive fairness and cautioned that, “it would be advisable not to use phrases such as “public law fairness” because that simply begs the question whether what is meant is procedural fairness or substantive fairness.” [56]

In tracing the evolution of the concept of substantive legitimate expectation as considerd by the House of Lords in R v Inland Revenue Commissioners, ex parte Unilever Plc [1996] STC 681, His Lordship explained:

“in appropriate cases, the court will and must be able to correct an abuse of power.  The doctrine of substantive fairness is an important tool which enables the court to ensure that a public authority acts lawfully and, in particular, does not abuse the powers which have been entrusted to it by Parliament.  However, that doctrine does not and should not give the court a wide-ranging discretion to overturn the decision of a public authority where it considers it to be unfair.  This is not only because that risks blurring the important dividing line between the function of the court and the function of the executive.  It is also because the doctrines according to which a court will interfere with the decisions of the executive need to be set out in reasonably clear and predictable form so that everyone can arrange their affairs accordingly.  This (the principle of legal certainty) is as much an important aspect of the rule of law as is the need to correct abuse of power.” [65]

His Lordship further gave guidance concerning “procedural rigour in public law litigation”. It had earlier been held by Hallet LJ that, “I deprecate [the appellant’s] attempts to expand the grounds significantly beyond those upon which permission was granted.” [23] The point was developed by Singh LJ at the end of the judgment:

“67. In my view, it cannot be emphasised enough that public law litigation must be conducted with an appropriate degree of procedural rigour. I recognise that public law litigation cannot necessarily be regarded in the same way as ordinary civil litigation between private parties. This is because it is not only the private interests of the parties which are involved. There is clearly an important public interest which must not be overlooked or undermined. In particular procedure must not become the master of substance where, for example, an abuse of power needs to be corrected by the court. However, both fairness and the orderly management of litigation require that there must be an appropriate degree of formality and predictability in the conduct of public law litigation as in other forms of civil litigation.

68. In the context of an appeal such as this it is important that the grounds of appeal should be clearly and succinctly set out. It is also important that only those grounds of appeal for which permission has been granted by this Court are then pursued at an appeal. The Courts frequently observe, as did appear to happen in the present case, that grounds of challenge have a habit of “evolving” during the course of proceedings, for example when a final skeleton argument comes to be drafted. This will in practice be many months after the formal close of pleadings and after evidence has been filed.

69. These unfortunate trends must be resisted and should be discouraged by the courts, using whatever powers they have to impose procedural rigour in public law proceedings. Courts should be prepared to take robust decisions and not permit grounds to be advanced if they have not been properly pleaded or where permission has not been granted to raise them. Otherwise there is a risk that there will be unfairness, not only to the other party to the case, but potentially to the wider public interest, which is an important facet of public law litigation.”

David Mitchell acted for the Secretary of State, instructed by the Government Legal Department. A copy of the judgment is available here:

http://www.bailii.org/ew/cases/EWCA/Civ/2018/841.html