Court of Appeal holds that immigration guidance did not give rise to a substantive legitimate expectation

Yesterday the Court of Appeal handed down judgment in R (Alliance of Turkish Businesspeople) v Secretary of State for the Home Department [2020] EWCA Civ 553 dismissing the claimant’s appeal and allowing the Secretary of State’s cross-appeal. The underlying judicial review challenged the Secretary of State’s 2018 changes to the immigration rules affecting Turkish businesspersons. Prior to 2018 the rules had remained unchanged since the UK joined the EEC on 1 January 1973 and allowed a Turkish businessperson to qualify for settlement after four years’ residence. Following the change the qualifying period was increased to five years and conditions introduced requiring demonstration of knowledge of English language and of life in the UK plus payment of an application fee.

The claimant challenged the change relying on the doctrine of substantive legitimate expectation. It claimed that the immigration guidance preceding the change, which stated that the immigration rules remained as they were in 1973 amounted (1) to a clear and unambiguous representation (R. v. Inland Revenue Commissioners, ex parte MFK Underwriting [1990] 1 W.L.R. 1545) that the rules would not be changed and (2) that such change was so unfair as to amount to an abuse of power in that it was disproportionate to the legitimate aim pursued by the Secretary of State. At first instance Dingemans J found for the claimant on (1) but not on (2), dismissing the claim – [2019] 1 W.L.R. 4273.

The claimant appealed on the second issue and the Secretary of State cross-appealed on the first. Following a remote hearing the Court of Appeal first considered the cross-appeal. Applying  R (Bhatt-Murphy) v Independent Assessor [2008] EWCA Civ 755 (per Laws LJ at [43]) Flaux LJ, with whom Newey and Rose LJJ agreed, held that there was nothing in the 1973 immigration rules themselves which indicated that they would continue in force [50]. Nor did the relevant guidance contain any promise or representation to the effect that those Turkish businesspersons already embarked on the four-year settlement route would continue to benefit from the 1973 rules, notwithstanding any change to the policy. The mere fact that the immigration rule had remained unchanged for 45 years did not mean that, unlike any other immigration rule, it could not change if government policy changed [54].

The cross appeal was dispositive of the appeal. Although the Court went on to allow the claimant’s appeal on the second issue, this was academic in light of its finding on the first issue. The Court refused the claimant’s application to appeal to the Supreme Court.

David Mitchell, led by Sir James Eadie QC, was instructed by the Government Legal Department for the Secretary of State.