QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
(Sitting as a Deputy Judge of the Queen's Bench)
|THE QUEEN ON THE APPLICATION OF ADAM||(CLAIMANT)|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS S BROADFOOT (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the DEFENDANT
Crown Copyright ©
Friday, 3 October 2003
"It has been decided, however, that it would be right, because of the particular circumstances of your client's case, to grant him exceptional leave to remain in the United Kingdom for four years."
The second document is a document headed "Grant of Status Exceptional Leave to Remain", which has a Home Office date stamp, again 14 August 2001. Again the first paragraph of the letter says his asylum claim has been refused but:
"It has been decided, however, that it would be right, because of the particular circumstances of your case, to grant him exceptional leave to remain in the United Kingdom until 14 August 2002."
It will be observed that that was the grant of one year's exceptional leave to remain. That letter, which is a standard form letter for the grant of leave to remain to people who are being given exceptional leave, concluded under the heading "Passport":
"Your passport is enclosed and endorsed with leave to remain until 14th August 2002. Any application you make for further leave to remain will be carefully considered."
"The Secretary of State therefore grants you leave to remain until 14 August 2002."
The rubric is similar because of the exceptional reasons in the case.
"... in sending out a further covering letter on the same date clarifying that one year Exceptional Leave to Remain was being granted."
It appeared that on 14 August 2001 (there was an error in the witness statement which both parties agree can be corrected to 2001) that a correct covering letter recording that exceptional leave to remain for one year only was being issued. There is attached to that witness statement another standard form covering letter which indeed is in virtually identical terms to the first of the documents that I have referred to in this judgment, but states: "It has been decided to grant him exceptional leave to remain for one year."
Although I understand that the claimant's present solicitors have no record of this second covering letter being on the file, there is no evidence to suggest that it was not in fact received by the original solicitors, Tayo Arowojulu. As will become apparent there has been a change of representation in around the autumn of 2001.
"We refer to two letters received from you and sent to our client in August of this year. These letters are entirely inconsistent. One letter refers to our client having been given four years exceptional leave to remain in the United Kingdom. The second letter, the grant of status refers to our client only having one year of exceptional leave to remain.
There would appear to have been a mistake and since our client has been told that he has been granted exceptional leave to remain for a period of four years he has a legitimate expectation that four years will be granted to him."
I pressed Miss Weston about the nature of that letter and I think in fairness she accepted that there would be difficulties in sustaining the submission of law that the history of the matter as of that date did give rise to a legitimate expectation. The letter itself indicates that there has been a mistake. Three of the four letters that would have been sent by that date would have referred to one year. That was the leave that was actually granted, and only one covering letter, which appear to have been replaced by a second shortly after it was issued, gives rise to the confusion. At the very best, all it could be said on behalf of the claimant was that there was a confusion and some uncertainty. It is common ground that an ambiguous state of affairs, confusion, or a mistake does not give rise to legitimate expectation: there must be an unambiguous representation before the case goes any further.
"I have been informed by the Home Office that exceptional leave to remain has been granted to Mr Adam for a period of four years, until 18 August 2005. I hope this clarifies matters for your client."
Reliance is placed on that evidence.
"Just to confirm that I have approached the Home Office to clarify Mr Adam's status in writing - verbally, I have been told that he has been granted four years ELR."
By 13 January 2003 the MP was writing again, this time to Mr Adam himself again, to.
Say: "As you know, I contacted the Home Office on your behalf seeking clarification on whether you had been given one year's leave to remain or two.
This was the letter written to Mr Adam himself.
"I am enclosing a copy of the letter I have received by way of reply which states, as you will see, that the Home Office 'has no record' that you were granted four years' leave to remain.
I am afraid that it looks as though you have only been granted one year's leave to remain. Nevertheless, I have replied to the Home Office enclosing a copy of the letter giving four years' leave to remain, and asking for further comment."
A further comment emerges on that letter from the MP which was referring to a letter he had received on 8 January 2003, which is the letter which is the subject of this challenge. That letter repeats that in August 2001 the appellant had been granted exceptional leave to remain until 14 August 2002.