England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/07/2012

Mr John Howell QC :

1. In April and November 2006 the Secretary of State made changes to the rules governing the Highly Skilled Migrant Programme. Subsequently those changes were each held to be unlawful by this Court on the ground that, without any sufficient justification, they would frustrate the legitimate expectation of those who had been admitted to the Programme before the changes were introduced. Their expectation had been that they would be able to obtain further leave to remain, and then indefinite leave to remain, in the United Kingdom in accordance with the terms of the Programme when they were admitted to it.
2. Those who had been admitted to the Programme before April 2006 were required to have spent a continuous period of four years with leave in this country and to have met certain other conditions before they became eligible for indefinite leave to remain. Following the changes made unlawfully in April and November 2006, some migrants decided to make their home elsewhere. This claim for judicial review seeks to impugn (in this case and more generally) the Secretary of State's response to an application for indefinite leave to remain made by an individual who would by then have spent the requisite period in the United Kingdom but for his reaction to the changes to the Programme which the Secretary of State had sought to introduce unlawfully.
3. The Claimant contends that he has been unlawfully refused indefinite leave to remain in this country by the Secretary of State since that is what his legitimate expectation entitled him to in the circumstances. But he further contends that he was entitled to be granted indefinite leave to remain, since the Secretary of State was responsible for the fact that he did not meet the conditions for its grant and since she has waived the need to meet them in other cases.
4. The latter contention raises three general issues of public law:

(1) when a decision maker has taken a decision unlawfully which will frustrate an individual's legitimate expectation that he will receive a substantive benefit on the satisfaction of certain conditions, what obligation (if any) has that decision maker to provide such an individual with that benefit subsequently, and when may he refuse to do so, if the reason why that individual may not then satisfy those conditions is the action which he reasonably took to mitigate potentially adverse effects on him of the decision maker's unlawful decision?

(2) when a decision maker considers the case of those who took steps to mitigate potentially adverse effects on them of his earlier unlawful decision which would have frustrated their legitimate expectation of a substantive benefit, on what basis may the decision maker distinguish between them in his treatment of them? and

(3) in each case what role has the court in reviewing the legality of the decision maker's actions or lack of action.

5. In considering the Claimant's case I will need to consider what is involved in a complaint that a decision is so unfair as to amount to an abuse of power and how the Court addresses such a complaint. Such a complaint may be raised in a number of contexts. In this case submissions have been made that it provides the test for (a) whether or not a legitimate expectation has been frustrated unlawfully, (b) whether or not any response of the decision maker to having previously acted unlawfully is itself unlawful and (c) whether or not a different response to those in what are alleged to be similar situations is unlawful.
6. In addition to these more general issues, I will also need to consider the further complaints made by the Claimant in this case that the Secretary of State has failed unlawfully to have regard to certain aspects of the Claimant's case or has failed unlawfully to give any reasons why those did not provide a sufficient reason for the Clamant to be granted indefinite leave to remain.
7. For the sake of simplicity I shall refer in this judgment to the First Claimant, Mr Hirenkumar Mahendrabhai Patel, as "the Claimant", although his wife Mrs Alpa Hirenkumar Patel and their daughter, Miss Akanksha Patel, are also Claimants and the relief sought relates to them collectively. Similarly, for the sake of simplicity, I shall refer to the Secretary of State as "she", even on those occasions when the relevant Secretary of State was a man.

BACKGROUND

8. In order to understand the issues and the submissions made, however, it is first necessary to describe in some detail the Highly Skilled Migrant Programme; the previous decisions of this Court that the changes made to it by the Secretary of State were unlawful and the Secretary of State's response to those decisions contained in two policy documents. I shall then describe the Claimant's reaction to the changes that the Secretary of State introduced and the decisions on his application for indefinite leave to remain that he impugns.

(i) the HSMP

9. The Highly Skilled Migrant Programme ("HSMP") was introduced as a policy outside the Immigration Rules in January 2002. Its aim was to encourage individuals with the skills and experience required to enable the United Kingdom to compete in the global economy to come to the United Kingdom without any prior offer of employment. It was designed to provide them with an avenue to "settlement" in the United Kingdom. The scheme provided for leave to enter to be granted for an initial period of one year, followed by an extension for three years. After four years an individual would qualify for indefinite leave to remain ("ILR"). The spouse or unmarried partner of the migrant and dependent children under 18 would also be able to obtain ILR. Prospective candidates were informed that the programme would be reviewed on a regular basis and that the qualifying criteria might be adjusted from time to time. The Government also confirmed that it retained the right to suspend or to close the programme on an indefinite basis in connection with future applications for permission. The guidance issued stated, however, that "should this occur those already in the United Kingdom, as skilled migrants, will continue to benefit from the programme's provisions."
10. The scheme was introduced into the Immigration Rules with effect from April 1^st 2003. In order to obtain leave to enter for a period of up to twelve months, an applicant whose skills qualified him for entry under the HSMP needed also to demonstrate that he was willing and able to make the United Kingdom his main home and that he was able to maintain and accommodate himself and any dependent adequately without recourse to public funds: see paragraph 135A(i)-(iii) of the Immigration Rules.
11. If those criteria were still met he could apply for an extension of his stay if he had already taken all reasonable steps during his period of leave to become economically active lawfully in the United Kingdom: paragraph 135D of the Immigration Rules. Such an extension could be granted for a period not exceeding three years: see paragraph 135E.
12. Paragraph 135G of the Immigration Rules provided that

"Indefinite leave to remain may be granted, on application, to a person currently with leave as a highly skilled migrant, provided that he:

(i) has had a continuous period of at least 4 years' leave to enter or remain in the United Kingdom in this capacity, or has had a continuous period of at least 4 years' leave to enter or remain in the United Kingdom which includes periods of leave to enter or remain granted under paragraphs 128 to 319 of these Rules; and

(ii) for the period of leave as a highly skilled migrant, has met the requirements of paragraph 135A (i)-(iii); and

(iii) for any period of leave not in this capacity, has not had recourse to public funds; and

(iv) is lawfully economically active in the United Kingdom in employment, self-employment or a combination of both."

13. Paragraph 135H provided that ILR was to be refused if the Secretary of State was not satisfied that each of the requirements of paragraph 135G was met. But paragraph 135G did not provide that ILR was to be granted if the Secretary of State was satisfied that those requirements were met. It gave the Secretary of State discretion to grant it.
14. How the Secretary of State proposed to exercise that discretion was indicated in guidance she issued. The Guidance issued in October 2003 stated that:

"If you have been granted permission to stay in the United Kingdom as a Highly Skilled Migrant for four years and wish to remain on a permanent basis you can apply at the end of the four year period for permanent residence. This is otherwise known as indefinite leave or settlement...The main criteria for settlement will be that you have spent a continuous period of four years in the UK (except for trips abroad of three months or less, totalling less than six months in the four year period) in a category leading to settlement and that you continue to be economically active in the UK as a highly skilled migrant."

15. It may be noted that at this stage the requirement to have spent a continuous period of four years in the United Kingdom was to be found in the Secretary of State's guidance, not in the Immigration Rules themselves. The Rules referred to the periods of leave granted under certain provisions of the Immigration Rules that an individual had to have enjoyed. A person may have leave to be in this country, even if he is not present here. The position used to be that an individual's leave would lapse on leaving the Common Travel Area unless on returning he did not require leave to enter: see section 3(4) of the Immigration Act 1971. Now, however, if more than six months remains until any leave would otherwise have expired, it does not normally lapse on its holder leaving the common travel area unless and until he stays outside the United Kingdom for a continuous period of more than two years: see section 3B(2)(c) of the Immigration Act 1971 and article 13(1)-(4)(a) of the Immigration (Leave to Enter and Remain) Order 2000.
16. To be eligible for ILR in accordance with the terms of the HSMP, therefore, an individual had (i) to have had a continuous period of at least four years leave to be in the United Kingdom in a relevant capacity and (ii) to have spent a continuous period of four years in the United Kingdom (subject only to limited trips abroad as mentioned in the Guidance).

(ii) the changes to the HSMP introduced in 2006

17. The issues in this case stem from changes subsequently made by the Secretary of State to the terms of the HSMP in April and November 2006.
18. The changes made in April 2006 to the Immigration Rules governing the HSMP were part of a more general change to make five years the qualifying period in the Rules for settlement for all employment related categories. Under these changes leave to enter would initially be granted for two years and any extension would be granted for three years. In addition paragraph 135G(i) of the Immigration Rules was amended so that, to qualify for ILR, an individual who had leave as a highly skilled migrant had to show that:

"(i) he has spent a continuous period of 5 years in the United Kingdom in this capacity, or has had a continuous period of at least 5 years' leave to enter or remain in the United Kingdom which is made up of periods of leave granted as a highly skilled migrant in accordance with paragraphs 135A to 135F of these Rules, as work permit holder under paragraphs 128 to 134 of these Rules, or as an Innovator under paragraphs 210A to 210H of these Rules".

19. The changes made in November 2006 (which had in practice immediate effect after a short suspension of the scheme until December 2006) were more radical. There were two main changes of note.
20. First the test which migrants had to satisfy in order to obtain any extension of their leave was changed. Previously the test had required such applicants to show that they had taken all reasonable steps to become lawfully economically active. As a result of the changes in November 2006, such applicants thereafter had to score a minimum number of points for previous earnings in the United Kingdom, qualifications, age and UK experience, and they were also required to meet an English language requirement, in accordance with what became paragraph 135D of the Rules. The reason for tightening the criteria for further leave to remain was said to be in order to reflect the likelihood of a migrant's success in labour market better.
21. Secondly paragraph 135G of the Immigration Rules was amended so that it provided that:

"The requirements for indefinite leave to remain for a person who has been granted leave as a highly skilled migrant are that the applicant:

(i) has spent a continuous period of 5 years lawfully in the United Kingdom, of which the most recent period must have been spent with leave as a highly skilled migrant (in accordance with paragraphs 135A to 135F of these Rules), and the remainder must be made up of leave as a highly skilled migrant, leave as a work permit holder (under paragraphs 128 to 133 of these Rules), or leave as an Innovator (under paragraphs 210A to 210F of these Rules); and

(ii) throughout the five years spent in the United Kingdom has been able to maintain and accommodate himself and any dependants adequately without recourse to public funds; and

(iii) is lawfully economically active in the United Kingdom in employment, self-employment or a combination of both."

22. The Guidance issued in November 2006 stated that:

"The main criteria for settlement will be that you have spent a continuous period of five years in the UK in a category leading to settlement. You must also be able to demonstrate that you can continue to be economically active in the UK as a highly skilled migrant."

(iii) the judicial reviews of the changes made in 2006 and the Secretary of State's response to those decisions

23. The changes made to the Immigration Rules in April and November 2006 were later held by this Court to have been made unlawfully having regard to migrants' legitimate expectations. The Secretary of State promulgated a policy after each decision of this Court stating how further applications for leave by some of those whose legitimate expectations had been affected by those changes should be dealt with.

a. HMSP1

24. In R (HSMP Forum Ltd) v SSHD [2008] EWHC 664 (Admin), [2008] INLR 262, ("HMSP1") Sir George Newman found, in a judgment delivered on April 8^th 2008, (at [57]) that

"that the terms of the scheme, properly interpreted in context and read with the guidance and the rules, contain a clear representation, made by the defendant, that once a migrant had embarked on the scheme he would enjoy the benefits of the scheme according to the terms prevailing at the date he joined."

25. As Sir George considered that there was no good reason why those already on the HSMP should not enjoy the benefits of it as they had originally been offered to them, he held that the Secretary of State had acted unlawfully in failing to give effect to that representation and in applying the changes made in November 2006 to persons who had been previously admitted to the scheme: see at [61].

b. PG1

26. Following that decision and in response to it, on July 9^th 2008, the Secretary of State published a policy document, HSMP Forum Judicial Review Policy Document ("PG1"). PG1 applied to those migrants who had received an HSMP approval letter issued under the requirements in place before November 7^th 2006, who had been granted entry clearance on the basis of that letter and who fell into one of three categories. These were (i) those who held HSMP leave and who had (or would have) to apply for an extension of their leave; (ii) those who had been refused an extension of their stay under the new arrangements introduced by the November 2006 changes; and (iii) those who had not applied for such an extension under those arrangements but had left this country or switched categories.
27. In relation to individuals in the first category, the policy was that the requirements for granting an extension of leave would be those that were in place before November 2006. If the applicant met them, he would be granted three years' leave or enough leave to enable him to meet the qualifying period for settlement (whichever was the greater). It was further stated that "the migrant's previous HSMP leave will count towards the qualifying period for applying for settlement as a highly skilled migrant as will any leave issued under the terms of this policy". No provision was made in respect of this category of migrant for treating any period which such an individual had spent outside the United Kingdom as having been spent here when considering whether he qualified for further or indefinite leave to remain here. The assumption appears to have been that individuals in this category had remained in this country after the changes made in November 2006.
28. PG1 also made provision for migrants who had left this country without having applied for an extension of leave provided that they had left after November 7^th 2006. If they wished to return to the United Kingdom such migrants could apply for entry clearance by July 31^st 2009. They would be granted entry clearance if they could show that:

a. Their leave expired after 7 November 2006;

b. They left the UK after 7 November 2006;

c. They would have met the old HSMP extension of stay requirements when they were in the UK."

29. The entry clearance granted in such a case would give the applicant three years' leave or enough leave to enable him to meet the qualifying period for settlement (whichever was the greater). It was further provided that the following would count towards the qualifying period for settlement: (i) a migrant's previous period of HSMP leave; (ii) any period of leave granted under this policy; and (iii) "the time between the end of their HSMP leave and the start of any leave under the terms of this policy". In this category of case, therefore, provision was made, in effect, for treating a period spent by an individual outside the United Kingdom following the unlawful change to the Immigration Rules as if it had been spent by him with leave in the United Kingdom.

c. HSMP2

30. In R (HSMP Forum Ltd) v SSHD [2009] EWHC 771 (Admin) ("HMSP2") Cox J considered a further claim for judicial review that impugned this policy guidance on the ground that it failed to deal with the earlier changes made in April 2006 which had increased the qualifying period for ILR from four to five years.
31. In a judgment given on April 6^th 2009 Cox J held that there was a substantive legitimate expectation that the terms on which a migrant would qualify for settlement under the HSMP were the terms prevailing when he was admitted to the HSMP; that the legitimate expectation of skilled migrants admitted to the scheme before April 2006 was that a period of four years' residence in the United Kingdom would qualify them for ILR under the terms of the HSMP which then applied; that there was no sufficient justification for the change made in April 2006 to a period of five years; and (at [79]) that "it would be unlawful for the Secretary of State to withhold indefinite leave to remain from all those members of the HSMP who were already on the scheme before the 3 April 2006, by reference to a qualifying period of 5 years' continuous residence": see also the second declaration made.

d. PG2

32. Following that judgment the Secretary of State issued a further policy document, HSMP Indefinite Leave to Remain (ILR) Judicial Review: Policy Document ("PG2"). Its purpose was to enable migrants to qualify for ILR after four years' continuous residence in the United Kingdom in a qualifying category and without having to demonstrate a knowledge of language and life in the United Kingdom.
33. PG2 applied inter alia to those who received an HSMP approval letter issued on the basis of an application made before April 3^rd 2006, who were granted entry clearance or leave to remain on the basis of it and who fell into one of five categories. These were migrants who:

"i. Have already settled in the United Kingdom under HSMP or Tier 1 (General) on the basis of having completed five years continuous residence in a qualifying category

ii. Have completed four years continuous residence in the United Kingdom in a qualifying category

iii. Are coming up to having completed four years continuous residence in the United Kingdom in a qualifying category

iv. Those who applied for ILR after four years, were refused, and either:

- won an appeal against the refusal decision and were then granted permission to stay.

- did not appeal the refusal decision or their appeal was dismissed

v. Those who have completed four years continuous residence in the United Kingdom in a qualifying category and have submitted an application for Further Leave to Remain (FLR)"

34. In respect of these categories PG2 provided that:

"The requirements for ILR for a person qualifying for consideration under this policy document are:

a. The migrant has spent a continuous period of four years lawfully in the United Kingdom, of which the most recent period must have been spent with leave as a highly skilled migrant, and the remainder must be made up of leave as a highly skilled migrant, leave as a work permit holder (under paragraphs 128 to 133 of the Immigration Rules), leave as an Innovator (under paragraphs 210A to 210F of the Immigration Rules) or leave as a Tier 1 (General) migrant

b. The migrant applied to enter onto the HSMP before the qualifying period for Indefinite Leave to Remain (ILR) was increased from four to five years on 03 April 2006, and was successful in that application

c. Throughout the four years spent in the United Kingdom the migrant has been able to maintain and accommodate himself and any dependants adequately without recourse to public funds

d. The migrant is lawfully economically active in the United Kingdom in employment, self-employment or a combination of both".

(iv) the facts of the Claimant's case

a. the Claimant's admission to the HSMP and his entry to this country as a highly skilled migrant

35. The Claimant is a national of India. He is now 36. He applied for the HSMP in February 2004 when he was working in India as the Company Secretary for Transrail Structures Ltd. This was a company providing servicing and maintaining power transmission systems for railways in that country. He received an approval letter on February 17^th 2005. On April 18^th 2005 an Entry Clearance Officer granted the Claimant and his family a visa under the HSMP enabling them to obtain leave to enter for the period until April 18^th 2006.
36. The Claimant arrived in this country on May 1^st 2005. He was granted leave to enter until April 18^th 2006. He took jobs in London and then in Newcastle. His family initially remained in India. But in February 2006 the Claimant's wife and their young daughter joined him in this country after his wife had wound up her practice in India as an advocate.
37. On March 21^st 2006 the Claimant was granted an extension to his leave under the HSMP, with his wife and daughter as his dependents, entitling him to remain in this country until April 18^th 2009.

b. the reaction of the Claimant and his wife to the changes to the HSMP made in April and November 2006, their departure from this country and their decision to settle in India

38. Shortly after the Claimant had been granted an extension to his initial leave to be in this country, the Secretary of State amended the Immigration Rules on April 3^rd 2006 so that the qualifying period under the HSMP for ILR was increased from four to five years. This meant that, before his leave to remain expired in April 2009, the Claimant would have to apply for, and to obtain, a further extension of his leave before he might ultimately qualify for ILR in 2010.
39. The Claimant says that the changes made created uncertainty about whether and (if so) when he and his family would obtain ILR. He considered that, if the Secretary of State could make this change, then the Secretary of State could make others which might ultimately frustrate all the efforts which he and his wife might make to build a life for themselves in this country. He and his wife decided, however, to defer a decision on what to do in the light of the changes made in April 2006. In June 2006 they moved to London where he hoped to further his legal career and where, as a stop gap, he took an initial job as field sales advisor.
40. One thing which then particularly concerned the Claimant and his wife was the future education of their daughter, who would be 2 in July 2006. They felt that, if they had to return to India later, her education would be substantially prejudiced, as she would be likely to be placed in a year behind her peer group. But the difficulty of gaining a place for her at a good school in such circumstances was of more concern to them. In India compulsory education begins when a child is 3 but there is a "pre-school" year for which a child is eligible once she is 2. Their concern was that, if their daughter did not attend pre-school, her chances of being admitted to a good school in 2007 if they had then to return to India would be affected. Accordingly the Claimant and his wife decided that he should go to India to get their daughter admitted to pre-school as soon as possible and to explore the options for securing her admission to a good school for the following year. Their plan was that their daughter would remain in India living with the Claimant's mother, attending pre-school, and that the Claimant would return to the United Kingdom in order to continue to advance his career, until he and his wife had finally decided what to do. One option would be for his wife would return to India to be with their daughter whilst he remained here.
41. The Claimant took a week's leave at the end of July 2006 and returned to India for a week with his daughter. It was arranged that she would attend pre-school in September 2006. He also came to believe that her best interests would be served by him returning to India to take part in the formal process for admission to schools in July 2007 that was to begin in September 2006 as parents are interviewed as part of that process. The Claimant accordingly resigned from his job in this country as his employer would not give him a longer period of leave.
42. The Claimant returned to India on August 30^th 2006. His wife remained in this country. They anticipated making a final decision about their future after the New Year. The Claimant took a job with his old company in India in order that he would have an income until he and his wife had decided what to do. It appears, however, that, their daughter greatly missed her mother and, on the advice of their family doctor, the Claimant's wife returned to India on September 16^th 2006. At that stage the Claimant and his wife had taken no final decision about their future. Their objective was to secure the admission of their daughter to a good school, to settle her with her grandmother and to work out what to do in the long term.
43. In November 2006 the Secretary of State announced the further changes to the HSMP scheme (to which I have referred) which were to come into effect on December 6^th 2006. The new rules governing the grant of any extension of an existing leave would have applied to the further extension of his leave that the Claimant then required in consequence of the changes made in April 2006.
44. The Claimant's reaction was that he and his wife might well not be able to meet the new conditions imposed for such a further extension, particularly those relating to past earnings. If his earnings remained at the level he had achieved in the United Kingdom, then they would not qualify for further leave. Moreover they were fearful that there might be yet further changes before they were due to apply in April 2009. Accordingly they decided in "late 2006" that neither the Claimant, nor the Claimant and his wife together, would return to the United Kingdom after they had secured their daughter's admission to a school for the next academic year (which they did in January 2007). Thus, in the light of the changes made to the HSMP by the Secretary of State in November 2006, the Claimant and his wife decided not to return to the UK but to settle back into life in India.
45. On August 30^th 2008 the Claimant's leave to remain granted under the HSMP lapsed as he had by then remained outside the United Kingdom for two continuous years: see paragraph [15] above.

c. the Claimant's return to the United Kingdom and the Secretary of State's decision in August 2009 refusing him ILR

46. Following the decision in HMSP1 and the promulgation of PG1, the Claimant and his wife thought again about settling in the United Kingdom. Having resigned from his position in India as Company Secretary and Senior Legal Manager with Claris Lifesciences Ltd, the Claimant returned to this country on February 9^th 2009, seeking to settle here once again as a highly skilled migrant, before his existing leave to remain was due to expire on April 18^th 2009.
47. On seeking leave to enter within the period of that earlier leave and for the same purpose for which it was granted, the Claimant was exempt from the requirement to obtain entry clearance before returning, notwithstanding the fact that his leave had lapsed: see paragraph 2(b) of Appendix 1 to the Immigration Rules. However he had no claim to readmission as a returning resident. His application for leave to enter fell to be considered in the light of all the relevant circumstances. If in such circumstances an individual is readmitted for the same purpose, however, then the same time limit and any conditions attached to the earlier leave will normally be reimposed: see paragraph 20 of the Immigration Rules; section 3(3)(b) and 3(4) of the Immigration Act 1971; R v SSHD ex p Golam Mowla [1992] 1 WLR 70 CA per Glidewell LJ at p76b-f, 78e-g, 81a-b, 85g-h, per Ralph Gibson LJ at p88a-e, 88h-89b, Lord Donaldson MR at p89b. On behalf of the Secretary of State, Mr Gwion Lewis, stated that there had been a failure to consider whether the Claimant should have been given leave to enter on the merits when he arrived in this country. Those dealing with him on arrival had thought (albeit, so it would appear, after some deliberation), so he informed me, that they had no discretion to exercise and that Claimant was entitled to be admitted. In the event his passport was endorsed with a date stamp indicating readmission to continue the leave previously granted until April 18^th 2009.
48. On April 16^th 2009 the Claimant submitted an application for a further limited extension of his leave in accordance with the judgment in HSMP1.
49. On June 18^th 2009 the Claimant's then representatives, ACE Consultancy Services, asked the United Kingdom Border Agency to consider that application for further limited leave to remain expeditiously as he was under pressure from his employers to confirm his long term status and to travel overseas on a business trip. On June 25^th 2009 the United Kingdom Border Agency acknowledged the Claimant's application for limited leave to remain but suggested that, in the light of HSMP2 and the remedies put in place for those covered by that judgment, the Claimant might wish to vary the application to one for ILR. The Agency advised that, in deciding whether or not to make any such change, consideration should be given to whether the Claimant met the requirements for ILR.
50. On July 3^rd 2009 the Claimant submitted a request to vary his application to one for ILR under PG2. This was accompanied by a letter from his then representatives. They did not provide the reasons why the Claimant had initially left the United Kingdom on August 30^th 2006, which he has now explained and which the Secretary of State accepts. Instead they stated that the Claimant had left the United Kingdom on holiday on August 30^th 2006 for a few weeks. They pointed out, however, that the Claimant did not return when he came to learn of the changes made in November 2006 but that he had returned to the United Kingdom after HSMP1. They invited the Secretary of State to waive the Claimant's absence from the United Kingdom from August 30^th 2006 to February 9^th 2009 "as per the Judicial Review decision".
51. The Claimant's application for ILR was considered in accordance with PG1 and PG2 and refused on August 6^th 2009 "on the grounds that...[the Claimant had] not spent four years continuous residence in the United Kingdom and had left the United Kingdom before the changes [introduced in November 2006] were implemented". It was also stated that

"The terms of [PG1] which implemented the High Court judgment of April 2008 provided for those, who left the United Kingdom after the HSMP was suspended in November 2006, to have any time spent outside the UK counted as if it had been spent inside the UK with HSMP leave. As you left the United Kingdom at the end of August 2006 which was before any changes were introduced, the time you spent outside the UK does not count towards settlement.

Owing to the fact that you have been absent from the United Kingdom for more than two years and have not completed a period of 4 years continuous lawful leave in the UK the Secretary of State is satisfied that your leave is being sought for a purpose not covered by the Immigration Rules."

52. It appears that there was no decision taken whether the Claimant should be given further leave to remain for a period, even if he was not to be granted ILR.
53. The Claimant's appeal against the refusal of ILR was dismissed by the Asylum and Immigration Tribunal on November 23^rd 2009. The Tribunal found that neither of the judgments in the High Court availed the Claimant as he had not completed four years' residence in this country. It considered that in any event he did not fall within the 2008 judgment as he had left before the changes in November 2006 and that he did not fall within the Secretary of State's policies in either PG1 or PG2. The Tribunal found that it had no jurisdiction to consider what it took to be the Claimant's real complaint, that those policies did not take account of his legitimate expectation (that he said was not met) as he had left this country in August 2006 and remained outside as a result of changes to the HSMP that had occurred or been anticipated.
54. The Claimant applied for a reconsideration. He complained that it was inconsistent for the Secretary of State to count the period of absence of those who left after the changes made in November 2006 towards the period of residence required for settlement but not the period of absence of those who had left because of the changes made in April 2006 or (as in his case) because of the combined effect of both. In a decision dated December 10^th 2009 Senior Immigration Judge King refused to order a reconsideration stating that, as the Immigration Judge had indicated, it was more appropriate in all the circumstances for the Claimant to pursue the matter by way of judicial review.
55. Following the failure of his appeal, the normal result would have been that the Claimant's leave to be in this country, which had been granted on February 9^th 2009 and which had been automatically extended following his application for its extension whilst that application and any appeal against a decision on it was pending (by virtue of section 3C of the Immigration Act 1971), would have come to an end. However, on April 26^th 2011, Ouseley J ordered a stay of the Secretary of State's decision on August 6^th 2009 refusing to grant the Claimant ILR, so that the HSMP leave to remain (which he then had) would be treated as continued under that provision pending the decision on this claim for judicial review.

d. the claim for judicial review and the Secretary of State's further decisions

56. In response to a pre-action protocol letter, the Secretary of State decided in a letter dated February 1^st 2012 to maintain the decision to refuse the Claimant and his family ILR and decided that, having carefully considered all the circumstances, there were no compelling or compassionate reasons for granting leave outside the Rules. It was stated that:

"..the remedy of [PG1] was put in place for those people who had left the UK because of the changes brought about on 7 November 2006 and there was no provision made within the policy document for those that left the United Kingdom following the changes of April 2006 to be treated in the same way...

The claimant, by his own admission, left the United Kingdom because of the changes of 3^rd April 2006 affecting indefinite leave to remain requirements however whilst this meant the claimant would have had to complete an additional year to obtain settlement it did not affect his ability to remain in the United Kingdom as he would have only had to continue to meet the same criteria that was in place when he entered the route.

In view of the fact that the remedy of [PG1] was put in place for those people who had left the United Kingdom because of the changes brought about on 7 November 2006 there is no justification to extend [PG1] to the claimant since he left before 7^th November 2006 and his decision to leave was not based on his inability to meet the revised criteria."

57. On March 10^th 2010 this claim for judicial review was filed. It sought to impugn the decision of the Asylum and Immigration Tribunal and the decision of the Senior Immigration Judge refusing to order reconsideration. The claim was subsequently amended to impugn instead the decisions of the Secretary of State on June 25^th 2009, inviting the Claimant to consider amending his application for an extension of his leave to one for ILR, and on August 6^th 2009 refusing that application. Permission was granted on the papers by Mr Edward Bartley Jones QC sitting as a deputy judge in this Court on February 8^th 2011.
58. This claim for judicial review was originally due to be heard on March 15^th 2012. That hearing was adjourned, however, to allow the Secretary of State to reconsider the case. In the event the Secretary of State decided to refuse the Claimant indefinite leave to remain but to grant him a further period of leave to remain until February 9^th 2013.
59. In an e-mail sent by the Treasury Solicitor on April 24^th 2012 to the Joint Council for the Welfare of Immigrants, it was stated that:

"The Secretary of State] has advised me that it is proposed to put [the Claimant] in the position he would have been in had he not varied his application [in July 2009] to one of indefinite leave to remain, therefore, HSMP leave would have been considered under the old rules, given that [the Claimant] was in employment at the time of the ILR application, [the Secretary of State] is prepared to assume he would have met the requirements for Leave to Remain and leave would have been granted to enable your client to acquire the four years required for settlement from his latest date of entry 09.02.09. [The Secretary of State] has calculated that your client requires leave to 09.02.13 therefore it has been decided to now grant him Leave to Remain to that date...

[The Secretary of State] does not accept that your client could have qualified for ILR at the time of his application or under the policy regarding HSMP as your client left the UK before the relevant dates and was absent from the UK for an extended period. As you are aware the Court has been very clear that there is no "near miss" in immigration." "

60. The Secretary of State subsequently issued notices on June 7^th 2012 refusing ILR and giving reasons for that decision. The notices referred to the Claimant's application for ILR under the terms of PG1 and set out what was said to be required for the grant of ILR under the provisions of that policy document. Somewhat oddly what was set out appears to have been the relevant terms of paragraph 135G(i) of the Immigration Rules as they then stood rather than any terms of PG1. However the notice went on to say that:

"The terms of [PG1] which implement the judgment [in HSMP1] provided for those, who left the United Kingdom after the HSMP was suspended in November 2006, to have any time spent outside the UK counted as if it had been spent inside the UK with HSMP leave. As you left the United Kingdom at the end of August 2006 which was before any changes were introduced, the time you spent outside the UK does not count towards settlement."

Owing to the fact that you have been absent from the United Kingdom for more than two years and have not completed a period of 4 years continuous lawful leave in the UK the Secretary of State is satisfied that your leave is being sought for a purpose not covered by the Immigration Rules."

THE DECISIONS NOW IMPUGNED AND THE RELIEF SOUGHT

61. When the hearing of this claim began on June 15^th 2012, Mr Duran Seddon, who appeared on behalf of the Claimant, abandoned any claim to impugn the invitation given to the Claimant on June 25^th 2009 to submit an application for ILR. But he still sought to impugn, and an order quashing, (i) the decision dated August 6^th 2009 refusing the Claimant ILR and (ii) the decision to maintain that decision contained in the response dated February 1^st 2010 to the pre-action protocol letter. He also sought leave to impugn the latest decisions in April and June 2012 not to grant ILR and only to grant the Claimant further limited leave to remain, seeking a declaration to the effect that those decisions (and the earlier decisions) were in unlawful breach of the Claimant's legitimate expectation or that they failed to confront those expectations properly. Mr Lewis did not oppose the grant of leave to make these amendments (which I have accordingly granted).
62. Mr Seddon also sought leave (which again Mr Lewis did not oppose) to amend the claim to seek declarations that PG1 and PG2 were unlawful. Declarations were sought that PG1 was unlawful in that it did not "address a response to the unlawful frustration of the legitimate expectations of a migrant who is affected by the changes to the HSMP in November 2006....[(i)] who did not return to the UK after 7 November 2006" or (ii) "who left, or did not return, to the UK after 7 November 2006, but who had continuing leave at the time of the changes and who returns to the UK within the period of HSMP leave as previously granted and seeks further leave". A declaration was also sought that PG2 was unlawful in that it did not "address a response to the unlawful frustration of the legitimate expectations of a migrant who is affected by the changes to the HSMP in April 2006 and who left the UK after 3 April 2006". Again I have granted leave for these amendments to be made.

SUBMISSIONS

(a) the submissions made on behalf of the Claimant

63. On behalf of the Claimant, Mr Seddon's primary case was that the Claimant had a legitimate expectation that he would be able to continue on the HSMP scheme ultimately obtaining ILR on the terms prevailing when he entered the scheme and within the time frame (four years) it then embodied and that accordingly, had the "bargain" struck with the Secretary of State been respected by her, the Claimant expected to be granted ILR in May 2009. His legitimate expectation of obtaining ILR in May 2009 had been unlawfully frustrated by her. He contended that this case fell into the third category of legitimate expectation identified by the Court of Appeal in R v North and East Devon Health Authority ex p Coughlan [2001] QB 213 at [57]. In such a case, so the Court of Appeal had there said,

"Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy."

64. In this case, so Mr Seddon contended, the changes made by the Secretary of State to the HSMP in April and November 2006 would have unlawfully frustrated the expectations upon which the Claimant had relied to his detriment in coming to this country. The Claimant was deprived of ILR when he came to apply for it in April 2009, so he submitted, because the Secretary of State's unlawful conduct had put the Claimant and his wife in a position where they felt they had little or no choice but to leave this country. On that basis Mr Seddon argued the Claimant was denied the substantive benefit that he expected, all other things being equal, of obtaining ILR in May 2009. It was for the Court to judge for itself whether the frustration of the Claimant's expectation was so unfair that it was an abuse of power. The onus was on Secretary of State to provide reasons in the public interest to justify denying him that benefit then: see Paponette v Attorney General of Trinidad and Tobago [2010] UKPC 32, [2012] 1 AC 1, at [36]-[38]. In this case there were none.
65. Alternatively, if the decisions refusing the Claimant ILR were not decisions which in themselves frustrated the Claimant's legitimate expectation, Mr Seddon contended that the Secretary of State was obliged to consider what the fair response was to the Claimant's application for ILR, given his legitimate expectation, her earlier unlawful decisions which would have frustrated it if applied and his response to those decisions. Mr Seddon submitted in effect that, unless otherwise required by sufficient reasons in the public interest, a decision maker is obliged to do whatever he can to confer the substantive benefit which an individual had a legitimate expectation of enjoying but which he has been denied in consequence of a decision maker's unlawful decision. In the case of dispute, the Court should determine for itself what the appropriate remedy was given the earlier unlawful decision that had (or would have) frustrated a claimant's legitimate expectation: see Rashid v SSHD [2005] EWCA Civ 744, [2005] INLR 550 per Pill LJ at [37]-[40]. To do otherwise and to review a decision maker's decision only on grounds of rationality "would constitute the public authority judge in its own cause..., even if [its decision] objectively is arbitrary or unfair": cf R v North and East Devon Health Authority ex p Coughlan supra at [66]. As Rashid showed, so Mr Seddon submitted, it mattered not that, when that question came to be determined by the decision maker or the court, an individual was not then entitled to the benefit he sought. The Court was entitled to consider what would have been likely to be the case absent the earlier unlawful decision: cf R (S) v SSHD [2007] EWCA Civ 546, [2007] INLR 450, at [53] and [63]. Thus the relevant question was whether, if the Secretary of State had not acted unlawfully, the Claimant would have been granted ILR had he applied for it in April 2009. Mr Seddon submitted that the Claimant would have been granted ILR in those circumstances as he would not have left the United Kingdom but for the Secretary of State's unlawful decisions: he would have stayed and qualified for ILR. If it was relevant (which he did not accept that it was), Mr Seddon further submitted that the Claimant's response to the Secretary of State's unlawful decisions was reasonable and foreseeable. In this case, as in Rashid, the Court could and should decide (and declare) that the Claimant was entitled to be granted ILR, since any failure to do so would be so unfair as to amount to an abuse of the Secretary of State's discretion, as there were no countervailing considerations sufficient to deny him that benefit. Indeed he contended that to permit the Secretary of State to rely on the continuous residence requirement in the circumstances would be to permit her to rely on her own wrongdoing.
66. Mr Seddon further contended that the Claimant had been treated unfairly given the manner in which those on the HSMP who had left this country after November 7^th 2006 had been treated. In PG1 the Secretary of State decided that, when considering an application by such an individual, the period he spent outside the United Kingdom following the unlawful change to the Immigration Rules should be treated as if it had been spent by him with leave in the United Kingdom. It was inconsistent for the Secretary of State not to do the same for those individuals who had left after the changes made to the HSMP in April 2006 or who had decided not to return following the changes made in November 2006 (as the Claimant had). The Secretary of State's policy response to HSMP1 and HSMP2 should have addressed the case of such individuals. There was no explanation, for example, why those who did not return to this country after November 7^th 2006 were to be treated differently from those who left thereafter.
67. Mr Seddon submitted that in the decisions impugned the Secretary of State had not considered the merits of the Claimant's case and that she had given no reasons why the Claimant should be treated differently from those who had left after November 7^th 2006: she had simply applied PG1 and PG2 which did not assist the Claimant. The Claimant had at least as good a claim to have his absence abroad treated as if he had spent the period here as those who benefited in that way under PG1. Insofar as the Secretary of State sought to rely on the fact that the changes made in April 2006 did not alter the substantive criteria for ILR but only lengthened the period of continuous residence required, she was again relying on an argument which the Court had already rejected in HSMP2 and she had ignored the reasons why the Claimant had left in August 2006. Accordingly the Secretary of State's unlawful failure to address these categories of case in her policy responses had not been remedied in this case.

(b) the Secretary of State's submissions

68. On behalf of the Secretary of State, Mr Lewis submitted that this was not a standard case of a legitimate expectation in which an individual is denied a benefit in breach of a clear representation. The Claimant was not entitled to ILR in the absence of four years' continuous residence in accordance with the terms of the HSMP when he was admitted to it. That requirement was moreover one that was imposed in the public interest. First it enabled the Secretary of State to review, before she decided whether an applicant should be granted ILR, whether he had met the requirements of the HSMP, such as not having recourse to public funds to support himself any dependent over a period and whether he had in fact made the United Kingdom his main home. Secondly it also enabled an applicant to decide whether or not he wanted to stay in this country permanently given the adjustments which he may have had to make on coming to this country and the difficulties and success he may have experienced here.
69. Mr Lewis submitted that, rather than being a typical case of legitimate expectation, it is one which involves a claim of unfairness amounting to an abuse of power. The Claimant's case in substance was that it was unfair not to treat his absence from the United Kingdom in response to the Secretary of State's rule changes between August 30^th 2006 and February 9^th 2009 (which rendered him ineligible under the terms of the HSMP applicable to him) as being time spent in the United Kingdom. He contended that the Secretary of State was under no legal obligation to do so.
70. Mr Lewis submitted that, in accordance with the approach of the Court of Appeal in R (S) v SSHD supra the proper focus in this claim is not on whether the rule changes in April and November 2006 were unlawful: this Court has already held they were. It is on whether the Secretary of State's subsequent decisions after reconsidering the Claimant's case this year were ones in which the Secretary of State had taken into account her earlier unlawful decisions; their consequences for the Claimant and his family, and the need to correct any "injustice" that would be caused if they were to be removed from this country because they had no leave to remain here. Mr Lewis submitted that, having considered the Claimant's particular circumstances, the Secretary of State decided to grant him further leave to remain until February 9^th 2009. By that time if he remains here the Claimant should be eligible for ILR in accordance with the terms of the HSMP applicable to him, as he will have spent four years' continuous residence with leave in the United Kingdom under the HSMP following his return to this country on February 9^th 2009. Mr Lewis contended that, in doing so, the Secretary of State had considered (a) the consequences for the Claimant and his family of the unlawful changes to the HSMP in April and November 2006 in putting them in a position of uncertainty regarding the qualifying criteria for settlement and (b) the "injustice" that would be caused to them if they were to be deprived ultimately of an opportunity to qualify for ILR in accordance with the terms of the HSMP applicable to them, and requited to leave the United Kingdom, because of decisions which they took in response to her unlawful actions. He submitted that the Secretary of State was entitled to refuse ILR as the Claimant had not by then completed a period of four years continuous' lawful leave in the United Kingdom owing to his own decision to return to India, a decision which Mr Lewis made no attempt to criticise. Mr Lewis submitted that this Court could only interfere with the Secretary of State's discretionary decision to grant the Claimant further leave to remain, rather than ILR, if it can be said to be infected by an error of law, such as a failure to consider a relevant matter or unreasonableness. But it was not.
71. In response to the arguments that the Secretary of State was acting inconsistently in having regard to the Claimant's absence from this country between August 2006 and February 2009 when she did not do so in the case of some of those on the HSMP who had left after the changes made in November 2006, Mr Lewis submitted that consistency as such is not a principle of administrative law: the governing principle is whether there has been unfairness such as to amount to an abuse of power: see R v Special Adjudicator ex p Kandasamy [1994] Imm AR 333 per Hidden J at p340. Mr Lewis submitted that the Claimant was in a materially different position to those who had left after November 7^th 2006. Many migrants on the HSMP at that time would have had difficulty meeting some of the new points-based criteria, for example in relation to qualifications and past earnings, and had decided to leave the United Kingdom when they considered that they no longer had a realistic prospect of settling here. The Secretary of State had decided that it would be inequitable to disregard any period of time spent outside the United Kingdom when assessing their eligibility for ILR as their decision to leave the United Kingdom was based on their inability to comply with those criteria that had been unlawfully imposed. By contrast the change made in April 2006, which increased the qualifying period for ILR from four to five years, did not change the nature of the criterion to be satisfied: it merely lengthened the period of residence required. Unlike the changes in November 2006, that in April 2006 did not affect the ability of those already on the HSMP to qualify for ILR fundamentally. The change in April 2006 did not lead inevitably (as did the changes in November 2006) to migrants leaving the United Kingdom due to their fundamental inability to comply with the change. Mr Lewis submitted that there was nothing to suggest that the Claimant had left the United Kingdom in August 2006 as a consequence of any fundamental inability to meet a period of continuous residence of five years, not four.
72. Mr Lewis accordingly contended that the Secretary of State was entitled to regard the further limited leave to remain she granted as affording the Claimant an adequate remedy in the circumstances given her previous unlawful decisions.

CONSIDERATION

(i) whether the decisions refusing the Claimant ILR in themselves frustrated the Claimant's legitimate expectation unlawfully

73. In my judgment the Claimant's primary case, that the Secretary of State's decisions refusing him ILR have unlawfully frustrated his legitimate expectation of obtaining ILR in May 2009, is misconceived.
74. The Claimant's legitimate expectation, like some others admitted the HSMP before April 2006, was (as Sir George Newman found in HSMP1) that he would enjoy the benefits of the scheme according to the terms prevailing at the date he joined: see paragraph [24] above. According to the terms prevailing when he was admitted to the HSMP, an individual who had leave to remain as a highly skilled migrant might be granted ILR provided inter alia (a) that he had a continuous period of at least four years leave to enter or remain in the United Kingdom in that capacity and (b) that he had spent a continuous period of four years in the United Kingdom (except for trips abroad of three months or less, totalling less than six months in the four year period): see paragraphs [12]-[16] above. At no time has the Claimant met these conditions. In those circumstances the decisions refusing him ILR were not inconsistent with the legitimate expectation he had.
75. This is also not a case in which the Claimant contends that the Secretary of State has made any representation that these conditions would be waived (or treated as satisfied) in whole or in part in the Claimant's case or, more generally, in the case of any of those who left the United Kingdom after the changes made to the Immigration Rules in April 2006 or who decided not to return after the changes made to those Rules in November 2006. Nor is it alleged that the Secretary of State has had any practice of waiving those conditions (or treating them as satisfied) in such cases.
76. In my judgement, therefore, the Claimant has at no stage had a legitimate expectation of being granted ILR, created by any promise or practice of the Secretary of State, unless and until he satisfied the conditions contained in the HSMP when he was admitted to it requiring the four year periods of continuous leave and residence in this country. Those conditions the Claimant has never satisfied.
77. The substance of the Claimant's case is different. It is not that any policy or practice that he had a legitimate expectation of being applied to him has not been. It is (a) that it is unfair to require him to satisfy any conditions in the scheme which applied to him when the reason he cannot do so is the Secretary of State's own unlawful conduct and (b) that it is also unfair to require him to do so when in some circumstances the Secretary of State does not require others to do so. Although these complaints necessarily have as their basis the Claimant's legitimate expectation that a certain scheme would be applied to him, they are not complaints that it has not been.

(ii) the significance of the Secretary of State's earlier unlawful conduct for a subsequent decision whether or not a benefit should be granted

a. introduction

78. The Claimant's case is founded on the two earlier decisions of this Court, in HSMP1 and HSMP2, that the changes to the Immigration Rules made in April and November 2006 were unlawfully introduced. Had they been applied to any subsequent application for leave to remain which the Claimant made, they would have frustrated his legitimate expectation that any such application would be determined by reference to the terms of the HSMP prevailing when he was admitted to it. But the fact that there has been a decision which has been found to be unlawful does not of itself mean that any subsequent decision falls to be made on any basis other than the law, any relevant policy and the circumstances as they exist when that subsequent decision falls to be taken: see eg R (Zeqiri) v SSHD [2002] UKHL 3 per Lord Hoffmann at [42]-[43]; R (Nadarajah) v SSHD [2005] EWCA Civ 1363 per Laws LJ at [46].
79. Where the earlier decision involves unlawfully frustrating an individual's legitimate expectation, then, other things being equal that expectation will remain a mandatory relevant consideration when any subsequent decision falls to be made: see eg Paponette v Attorney General of Trinidad and Tobago [2010] UKPC 32, [2012] 1 AC 1, at [46], R (Bibi) v Newham LBC [2001] EWCA Civ 607, [2002] 1 WLR 237 at [58]-[59] and [66].
80. However, in my judgment that of itself does not exhaust the obligations of a decision maker when taking any subsequent decision. Subject to any relevant statutory provisions to the contrary, a decision maker must take into account the fact that he has previously acted unlawfully, the reasonableness (or otherwise) of any individual's reaction to that unlawful decision and what the resulting consequences for him (if any) can be seen to have been. No reasonable or fair minded person would fail to do so.
81. The more difficult question, however, is what further obligation (if any) the decision maker in such a case may be subject to.
82. This is not a case in which the Secretary of State's earlier unlawful actions have of themselves meant that the Claimant could not have satisfied the conditions entitling him to ILR. The Secretary of State did not, for example, deport or remove the Claimant and his family. They decided to leave and not return to this country in the light of the Secretary of State's unlawful actions. They were not required to leave. The Secretary of State does not suggest, however, that their response was unreasonable given the circumstances with which they were confronted and indeed Mr Lewis made no criticism whatsoever of their response.
83. Accordingly the questions that I must consider are these:

(1) when a decision maker has taken a decision unlawfully that will frustrate an individual's legitimate expectation that he will receive a substantive benefit on the satisfaction of certain conditions, what obligation (if any) has that decision maker to provide such an individual with that benefit subsequently, and when may he refuse to do so, if the reason why that individual may not then satisfy those conditions is the action which he reasonably took to mitigate potentially adverse effects on him of the decision maker's unlawful decision; and

(2) what role has the court in reviewing the legality of the decision maker's actions or lack of action.

b. the case law of relevance

84. My attention has not been drawn to any decision directly in point in relation to these two questions.
85. Both parties sought to draw support, however, from R (Rashid) v SSHD [2005] EWCA Civ 744, [2005] INLR 550 and/or its sequels in the Court of Appeal, R (S) v SSHD [2007] EWCA Civ 546, [2007] INLR 450 and R (S, H and Q) v SSHD [2009] EWCA Civ 142.
86. These decisions were all concerned with cases in which (a) an individual was denied a particular benefit to which he would have been entitled had a policy then applicable been applied to him, but (b) that policy was unlawfully not then applied to him and (c) a subsequent decision was taken denying him that benefit when he was no longer entitled to it under the policy applicable at the time of the second decision. They are thus concerned with the question how a decision maker should deal with a case in which he has previously acted unlawfully and the circumstances in which, when taking a decision subsequently, it may be unlawful for him to deny an individual a benefit to which he is not then entitled in order to "compensate" him in effect for the decision maker's earlier unlawful conduct which deprived him of it.
87. Before considering these cases in more detail there are two preliminary points that should be noted about them.

(1) First the cases are not directly analogous to the Claimant's case. In those cases the claimant would have been entitled to the benefit he sought at the time of the first unlawful decision and he was in effect complaining that he had been deprived of it as a result of the decision maker's earlier unlawful conduct. In this case, by contrast, the Claimant was not entitled to the benefit he now seeks, namely ILR, when the Secretary of State's earlier unlawful decisions were taken in April and November 2006. That is a matter to which I shall need to return.

(2) Secondly these were all cases in which the first decision involved an unlawful failure by the Secretary of State to apply her own policy. This was regarded as a breach of a claimant's legitimate expectation that her policy would be applied to him, whether or not he was aware of it. Whether this is the correct ground upon which such a failure should be regarded as unlawful must now be doubtful in the light of the decision of the Supreme Court in R (Lumba) v SSHD [2011] UKSC 12, [2012] 1 AC 245: see per Stanley Burnton LJ SSHD v Rahman [2011] EWCA Civ 814 at [42]. For present purposes in my judgment that does not diminish such assistance as these cases may provide as the Court regarded the first decision in those cases as involving a breach of the claimant's legitimate expectation. That was the premise upon which the cases proceeded. The second decision impugned in such cases involved no such breach. To that extent, therefore, they do address a situation in which the Court thought (a) that there was an initial decision which unlawfully then frustrated a claimant's legitimate expectation to a benefit and (b) that there was a subsequent decision when that claimant had no right or expectation to that benefit which involved, or should have involved, consideration of what should be done given the earlier unlawful decision.

88. In Rashid the majority of the Court appears to have approached the case as one in which the question was whether there had been such unfairness as to amount to an abuse of power in taking the first decision and, if so, what remedy for that unfairness would be appropriate: see eg Pill LJ at [34]-[37], [39] with whom May LJ agreed at [41]. The decision in Rashid has proved problematic, however, for three main reasons.
89. The first concerns the relevance of the finding that the first decision had been unlawful (which was not in issue) to the legality of the second decision. In R (S) v SSHD supra Carnwath LJ (as he then was) considered (at [34]-[38]) that that was a separate question of substance, the answer to which was that in the circumstances the second decision was so unfair as to amount to an abuse of power (as Dyson LJ had thought in Rashid and as others had subsequently treated the Court's decision in that case).
90. The remaining two problematic aspects of the decision in Rashid are interrelated. The first is why the Court of Appeal found that the second decision in that case was so unfair as to amount to an abuse of power. The second is whether it was entitled to declare (as it did in that case) that the claimant was entitled to indefinite leave to remain.
91. The first of these remaining difficulties related in part to the facts of Rashid but it also related to the legal test being applied in it. As Carnwath LJ put in R (S) v SSHD supra at [40], "as hitherto understood, abuse of power is not a special or more extreme category of illegality, but is rather a 'general concept' underlying other 'particular forms'....it does not in itself furnish a standard of review". Thus, as Carnwath LJ pointed out (at [43]), in R v Commissioners of Inland Revenue ex p Unilever plc [1996] STC 681,:

"Sir Thomas Bingham MR held that [the Revenue's] action was 'so unfair as to amount to an abuse of power' (p 691h), and also that it was 'so unreasonable as to be, in public law terms, irrational' (p 692f), thus equating [R v IRC ex Preston [1985] AC 835] abuse of power with the familiar CCSU criteria (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374). The judgment of Simon Brown LJ is to the same effect. The passage cited by Pill LJ ([in Rashid] at p 695a) reads:

"Unfairness amounting to an abuse of power' as envisaged in Preston and the other Revenue cases is unlawful not because it involves conduct such as would offend some equivalent private law principle, not principally indeed because it breaches a legitimate expectation that some different substantive decision will be taken, but rather because either it is illogical or immoral or both for a public authority to act with conspicuous unfairness and in that sense abuse its power"

This passage cannot be read as supporting a new and more potent category of judicial review, depending on the flagrancy of the administrative failing. On the contrary the expression 'illogical or immoral' was clearly intended to assimilate the test to Lord Diplock's definition of irrationality in CCSU ('outrageous in its defiance of logic or of accepted moral standards'), which had been mentioned in the previous paragraph."

92. The remaining problematic aspect of the decision in Rashid was the declaration granted that the claimant was entitled to ILR. As Carnwath LJ put it in R (S) v SSHD (at [46]),

"Although [Pill LJ in Rashid] seems to have expressed the result as an exercise of the court's remedial discretion, the court itself had no power to grant ILR. Nor, on a conventional analysis, did it have power to direct the Secretary of State to grant ILR. The power and the discretion rested with the Secretary of State. It was not open to the court to assume that function (cf R v Barnet LBC, ex p Shah [1983] 2AC 309 , 350F-G). However, it was open to the court to determine that a legally material factor in the exercise of that discretion was the correction of injustice. That proposition did not require express statutory authority. It was implicit in the principles of fairness and consistency which underlay the whole statutory scheme. Further, in an extreme case, the court could hold that the unfairness was so obvious, and the remedy so plain, that there was only one way in which the Secretary of State could reasonably exercise his discretion."

93. Accordingly, in R (S, H and Q) v SSHD [2009] EWCA Civ 142, Goldring LJ (in a judgment with which Arden and Laws LJJ agreed), stated that:

"45....it seems to me, as it did to the court in (S), the court's intervention in Rashid was justified by a two stage approach. Firstly, in refusing ILR when he reconsidered the case, the Secretary of State failed to have regard to a legally relevant factor, namely the correction of injustice caused by the previous unlawful failure to apply the policy. Secondly, the "extreme" nature of the injustice in that case, meant that there was only one way in which the Secretary of State could reasonably have exercised his discretion....

47...there can too be no question of the court trying to dictate to the Secretary of State how she should administer the immigration system. The court's role must be very limited.

48...where the Secretary of State has sufficiently had regard to that past illegality and any injustice, she will be entitled in the exercise of her discretion to refuse ILR. The court will only intervene in the extreme case, where fairness dictates that no reasonable Secretary of State could have done other than grant ILR. It follows the court will not intervene unless the decision of the Secretary of State was conspicuously unfair."

94. The Court of Appeal thus considered that, after an earlier unlawful decision which denied a benefit to which an individual was then entitled, a subsequent decision refusing to grant him that benefit when he was not then entitled to it would only be regarded as being "conspicuously unfair", or "so unfair as to amount to an abuse of power", if it was one "where fairness dictates that no reasonable Secretary of State could have done other than grant" it.
95. Mr Seddon submitted, however, that such an approach was inconsistent with the actual decision of the Court of Appeal in Rashid. In that case the majority judgment had been given by Pill LJ. As Carnwath LJ had observed in R(S) v SSHD at [34]-[35], he had approached the legality of the second decision, or the court's powers, in respect of it, principally as a question of the appropriate remedy given the first unlawful decision, rather than as a separate issue of substance. Mr Seddon drew attention to the fact that Pill LJ simply decided in Rashid (at [37]) that "the court should.., having found an abuse, intervene to grant such relief as it properly and appropriately can". That demonstrated, so he submitted, that it was for the Court to decide what was appropriate in the circumstances. Even if the Court could not direct the Secretary of State to grant ILR, it could say that the law required her to do so if the Court itself considered that that was what appropriate in the circumstances. To do otherwise, to apply a test of unreasonableness, he contended, would make the Secretary of State a judge in her own cause, allowing a claimant to be denied a benefit even if the Court thought he should be given it as a matter of fairness.
96. I do not consider myself free in any event to depart from the explanation of Rashid outlined above subsequently given by the Court of Appeal in R (S) v SSHD and R (S, H and Q) v SSHD . But in my judgment that explanation is not inconsistent with the decision in Rashid.
97. The decision whether or not a benefit should be granted (in those cases leave to remain) is a decision vested in the decision maker, not this Court. The fact that a decision maker has taken an unlawful decision does not deprive him of the power vested in him to take a further decision in that case and does not transfer his powers to this Court. The Court's function is to review the legality of any subsequent decision. It cannot be for this Court to substitute whatever it thinks "appropriate" for whatever the authority vested with the relevant discretion may decide. What the Court of Appeal was seeking to do in R (S) v SSHD and R (S, H and Q) v SSHD, therefore, was to provide an explanation of the circumstances in which it would be "appropriate" for the Court to say that a decision maker had to grant a benefit to which an individual was then not entitled (such as leave to remain in this country) following an earlier unlawful decision as a result of which he had been denied it notwithstanding he was then entitled to it.
98. No doubt there can be an argument as what the substantive legal obligation is which is imposed on a decision maker in such circumstances, compliance with which it is the task of the court to review. But to say that a decision maker must not exercise his discretion "so unfairly as to amount to an abuse of power", however, reveals little or nothing about any such obligation. As Laws LJ stated in Nadarajah v SSHD [2005] EWCA Civ 1363 at [67], "abuse of power is a name for any act of a public authority that is not legally justified. It is a useful name, for it catches the moral impetus of the rule of law...But it goes no distance to tell you, case by case, what is lawful and what is not." As Goldring LJ put it in R (S, H and Q) v SSHD at [25], abuse of power is "part of the rationale for the protection of a substantive legitimate expectation, not of itself a standard of review". If the phrase, "so unfair as to amount to an abuse of power", means simply that a decision is so unfair that it is invalid, that equally reveals little about how unfair it has to be in order to be invalid or how the Court is to determine when that threshold may have been crossed.
99. There may be different approaches to what is required. When, in the context of a substantive legitimate expectation, such allegations of unfairness have to be considered in the light of the principle of good administration which normally requires public authorities to keep their promises. In such cases regard must be had by the decision maker to the effect on the individual if a promise is not kept (which was compatible with the public interest when given and on which he was entitled to rely) and to the effect on the public interest if effect is now given to it. Thus, in deciding whether a decision frustrated a legitimate expectation unlawfully, for example, the Privy Council in Paponette v Attorney General of Trinidad and Tobago supra agreed (at [38])

"with the observation of Laws LJ in R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363 at [68]:

The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances."

100. There are, of course, some differences between an obligation to exercise a discretion in a proportionate manner and an obligation to exercise it reasonably. However the latter is the general rule and the conventional basis on which a review of the legality of the exercise of a discretionary decision is conducted is whether its exercise in a particular manner was unreasonable (other than in cases which engage certain issues of European law or in which the Court itself has to be determine whether or not the decision is incompatible with Convention rights). It is thus perhaps not surprising that the Court of Appeal in R (S) v SSHD and R (S, H and Q) v SSHD came to rely in effect on a Wednesbury test as the basis for conducting a review of a discretionary decision taken after an earlier unlawful decision, given that it had earlier rejected the contention that a test of proportionality should generally be substituted for it: see R (ABCIFER) v the Secretary of State for Defence [2003] EWCA Civ 473, [2003] QB 1397, per Dyson LJ (as he then was) giving the judgment of the Court at [32]-[37]. But in such cases the question is also different. It is not whether the decision maker may deny what the individual currently has a legitimate expectation of receiving. It is whether he should in effect be provided with what he currently has no right to expect to "compensate" him for the decision maker's earlier unlawful conduct and its consequences. No doubt this can be seen as raising a question of fairness to that individual, just as the manner in which different groups are treated by a decision maker may be (an issue considered below). The underlying values engaged, however, are not the same and it does not necessarily follow in either of those cases, as the courts have held, that a decision maker is required to exercise his discretion other than reasonably in the circumstances.
101. The situation in this case is further removed from that considered by the Court of Appeal in Rashid and its two sequels. Although there have been two earlier unlawful decisions by the Secretary of State, in contrast to those cases, the Claimant was not then entitled, and would not then have been granted, ILR had those unlawful decisions not been made. Whilst the Secretary of State was obliged when considering whether the Claimant should subsequently be granted ILR to which he was not then entitled to have regard to her earlier unlawful actions, whether his reaction to them was reasonable and what the consequences she could reasonably see that they had had for the Claimant, in my judgment she was only obliged to grant him ILR if no reasonable Secretary of State could then have refused to grant it to him. In addressing that question she was entitled to consider any requirements that he did not then meet and the public interest in them being satisfied before ILR was granted.
102. I am not impressed by any argument, based on Rashid and R(S) v SSHD, that it is irrelevant whether or not the Claimant met the requirements for the grant of ILR when he applied for it (or when the Secretary of State considered whether or not he should be granted it) and that what matters is simply whether or not he would have been likely to have satisfied such requirements if the Secretary of State had not previously acted unlawfully. The question in those cases about whether an individual would have satisfied the requirements for the benefit he sought was concerned with whether he would have done so when the first decision was taken unlawfully, not with whether he would have done when the second decision was taken. In this case the Claimant was never entitled to ILR in April or November 2006. It is one thing to say that an individual ought to be granted subsequently in some circumstances what he would have been entitled to earlier, but to which is no longer entitled as a result of a decision maker's unlawful conduct, in "compensation" for that unlawful action. It is another to grant an individual something to which he was never entitled in "compensation" for any earlier unlawful conduct. Moreover, in both cases, it is in any event still relevant why the individual is not then entitled to the benefit when the subsequent decision is taken. Any argument that all that needs to be considered is whether the individual would now satisfy any relevant requirements for a benefit if a decision maker had not previously acted unlawfully is simply, therefore, a means of circumventing consideration of any requirement for the grant of that benefit, on whose satisfaction it may be in the public interest to insist when the decision whether or not to grant it has to be made. Accordingly in my judgment the fact that the Secretary of State may have acted unlawfully in April and November 2006 does not of itself mean that she is not entitled to require compliance with any relevant requirement for the grant of ILR, even if, but for that unlawful action, the Claimant would have qualified for it in accordance with the terms of the HSMP as they were when he was admitted to it.

c. application

103. In this case the terms of the HSMP which the Claimant had a legitimate expectation would be applied to him included a requirement that he should have spent a period of four years continuously in the United Kingdom with leave before he might be granted ILR. In considering whether it was unreasonable to rely on that requirement in order to deny the Claimant ILR it is necessary to consider the reasons for imposing it.
104. The Secretary of State had put forward two reasons why that requirement was in the public interest: see paragraph [66] above.
105. I do not consider that, in the circumstances, any reasonable person could have put any material weight on the second of those reasons, namely that it enables a migrant to decide whether or not to settle in this country permanently in the light of his experiences here. ILR does not involve any requirement that the Claimant remains here permanently. If given ILR, any individual is free to leave if he decides to do so given his experience of life here.
106. By contrast in my judgment the Secretary of State could attach weight not unreasonably to the first reason for the requirement. Compliance with it enables the Secretary of State to review, before a highly skilled migrant is granted ILR, for example, whether he has shown that he can live here without having had recourse to public funds to support himself and any dependent and that he has in fact made the United Kingdom his main home. Given that the point of the HSMP was to offer ILR to those individuals who had the skills and experience to enable the United Kingdom to compete in the global economy and who settled here, it might be thought incompatible with that objective to grant ILR to a person who has not in fact shown that he can support himself and any dependents of his without recourse to public funds for at least four years or to grant ILR to an individual who had not yet shown by his continuous residence here for at least that period that he has in fact settled here and is thus less likely to use it (and the British citizenship to which it may lead) merely as a convenient means of entry to this country on occasion whilst mainly helping the economy of another country where he is in fact settled.
107. In considering the legality of the Secretary of State's decisions to refuse ILR it is thus necessary (a) to consider how much weight the Secretary of State might not unreasonably attach (i) to meeting the requirement for four years' continuous residence in this country in this case (other things being equal) and (ii) to the disruption to the Claimant's plans for settlement in this country and any hardship to him and his family which may have been caused by their reasonable reaction to the unlawful changes made by the Secretary of State in April and November 2006 and (b) to consider whether the only reasonable response to such detriment in the circumstances was the grant of ILR.
108. In my judgment it cannot be said that the only reasonable response in such circumstances (other things being equal) would have been to grant the Claimant ILR. The Secretary of State might not unreasonably have considered that the public interest was such that a migrant who wants to settle here should show that he can support himself without recourse to public funds for four years and has spent that amount of time continuously in this country before being granted ILR, notwithstanding what has regrettably happened to the Claimant and his family in this case as a result of her unlawful actions. Accordingly, had the matter stopped there, I would not have found that the only reasonable decision that the Secretary of State could have reached was to grant the Claimant ILR on his application for it.
109. But in this case other things are not equal. The Secretary of State has in effect waived to some extent the requirement for four years to be spent continuously in this country before ILR may be granted in the case of some individuals potentially affected by her unlawful changes. This says something about what weight the Secretary of State herself in fact attached to this requirement in certain cases and thus what weight can reasonably be given to the failure to satisfy it in the Claimant's case.

(iii) the significance of the treatment of some of those who left after the changes made unlawfully in November 2006

a. introduction

110. Mr Seddon submitted that the Claimant has been treated inconsistently by comparison with some of those who left this country after November 7^th 2006, in particular those who left without applying for an extension of leave: see paragraph [28] above. For those migrants in this category to whom this policy applied, their previous period of leave and the period spent outside the Kingdom between its end and the start of any new leave would count towards the qualifying period for the grant of ILR. Mr Seddon argued that it was unfair that a similar approach was not adopted towards those who left the United Kingdom after the changes to the Immigration Rules made in April 2006 and towards those who decided not to return (rather than leaving) after November 7^th 2006.
111. Mr Lewis submitted that the question was not one of inconsistency but rather whether the differences in treatment were so unfair as to amount to an abuse of power.

b. the test for when the different treatment of individuals is unlawful

112. In substance the Claimant's complaint is one of unequal treatment: the Secretary of State is requiring him to have resided in this country in fact continuously for four years when she is treating the time spent abroad by others in some cases as having been spent here.
113. In Matadeen v Pointu [1999] 1 AC 98, Lord Hoffmann giving the judgment of the Board stated (at p109c-g) that:

"As a formulation of the principle of equality, the Court [below] cited Rault J. in Police v. Rose [1976] M.R. 79, 81: "Equality before the law requires that persons should be uniformly treated, unless there is some valid reason to treat them differently." Their Lordships do not doubt that such a principle is one of the building blocks of democracy and necessarily permeates any democratic constitution. Indeed, their Lordships would go further and say that treating like cases alike and unlike cases differently is a general axiom of rational behaviour. It is, for example, frequently invoked by the courts in proceedings for judicial review as a ground for holding some administrative act to have been irrational...But the very banality of the principle must suggest a doubt as to whether merely to state it can provide an answer to the kind of problem which arises in this case. Of course persons should be uniformly treated, unless there is some valid reason to treat them differently. But what counts as a valid reason for treating them differently? And, perhaps more important, who is to decide whether the reason is valid or not? Must it always be the courts? The reasons for not treating people uniformly often involve, as they do in this case, questions of social policy on which views may differ. These are questions which the elected representatives of the people have some claim to decide for themselves. The fact that equality of treatment is a general principle of rational behaviour does not entail that it should necessarily be a justiciable principle - that it should always be the judges who have the last word on whether the principle has been observed."

114. In that case the Privy Council held that the question whether or not the inequalities in treatment were justifiable was one entrusted to the person in whom the decision making authority was vested subject to the usual principles of judicial review on Wednesbury grounds: see at p116d-h, 118f-g. The "principle of equality" thus simply means that distinctions between different groups or individuals must be drawn on a rational basis. It is thus no more than an example of the application of Wednesbury rationality: see R (N) v Secretary of State for Health [2009] EWCA Civ 795, [2010] PTSR 674, per Lord Clarke MR and Moses LJ at [90].
115. Mr Seddon submitted, however, that a different approach should be adopted in this case because it engaged the Claimant's legitimate expectation. In my judgment that provides no good reason to do so. The question in this case concerns the differences in the way in which the Secretary of State treats individuals, all of whom would have had (or did have) their legitimate expectations frustrated by the changes unlawfully made in April 2006 and 2007. What they all had in common was their legitimate expectation that they would be treated in accordance with the terms of the HSMP when they were admitted to it. What has to be considered in relation to the Claimant's complaints of inconsistency is the legality of the differences in the Secretary of State's treatment of them. The fact that what they all share is a particular legitimate expectation rather than some other common feature does not provide any justification for adopting any different approach to whether the differences in their treatment are lawful.

c. the Secretary of State's policy to treat certain periods spent abroad as if they had been spent in this country and the reasons for it

116. The group said to be have been treated more favourably in PG1 than the Claimant and with which he can most directly compared comprises those on the HSMP who left this country after November 7^th 2006 but who did not apply for an extension of their leave when they were in the United Kingdom: see paragraph [28] above. If such an individual would have been granted an extension to their leave (in accordance with the terms of the HSMP when he was admitted to it) had he applied for it whilst in the United Kingdom, then, under the terms of PG1, if his leave had expired after November 7^th 2006, he could apply for entry clearance before July 31^st 2009. The policy did not provide that ILR should be granted on any such application. Such an applicant for entry clearance would only be granted further leave for three years or enough to complete the qualifying period for settlement (whichever was the greater). Any HSMP leave that the migrant had previously had, the time he had spent between its expiry and the start of any leave under this policy and any leave granted under it would all count, however, towards the qualifying period for applying for settlement.
117. When formulating this policy it may have been assumed that the only persons to whom it would apply were those needing an extension of leave whose initial period of leave had been granted for up to 12 months (or, after April 2006 for up to two years). Their initial leave would have expired by the time PG1 was promulgated in July 2008. Such individuals would have needed entry clearance to return and the grant of a further period of leave of the duration which the policy envisaged before qualifying for ILR. If such an assumption was made, however, it overlooked the consequence of the change in April 2006 extending the period before an individual qualified for ILR, which had to be continuously spent in this country, from four to five years (which had not yet been found unlawful in HSMP2). In such a case an individual who had already been granted an extension of his leave for three years before that change would have needed a further extension of his leave before qualifying for ILR. He may have left the United Kingdom after November 7^th 2006 without applying for it. He might have required entry clearance if he applied to return before July 31^st 2009 or he might only have required leave to enter on arrival before that date (as the Claimant did). But, even if he did require entry clearance, he would not necessarily have required at least three years leave in order to qualify for ILR (as PG1 appears to have assumed).
118. This policy was expressed to apply only to those who required entry clearance to re-enter the United Kingdom. It was not expressed to apply to those who, like the Claimant, needed only leave to enter and did not need entry clearance, since, although their leave had lapsed, it had not expired. Mr Lewis did not suggest that there would be any rational reason for distinguishing between those who required entry clearance and those who only required leave to enter. The fact that the Claimant did not require entry clearance on his return to this country has not been a point taken by the Secretary of State why his case should be distinguished from those to whom the policy in PG1 did apply.
119. What this policy in PG1 did provide was for a period spent abroad to be treated as if it had been spent in this country with leave when considering subsequently whether a migrant met the requirements for the grant of ILR. Literally the only period that was to be so treated in accordance with the terms of PG1 was the period between (a) the expiry of the previous leave (not the migrant's departure) and (b) the grant of the further limited period of leave under the policy. But that does not in fact make any sense if his earlier period of HSMP leave was also to count towards meeting the requirements for the grant of ILR (as the policy envisaged). If a migrant left more than three months the expiry of his leave without having applied for an extension, the period spent on his previous HSMP leave after his departure could not have been taken into account if the policy is read literally (as there would have been no continuity of time spent in this country with leave before it expired). It is perhaps not surprising, therefore, that the policy was described in two of the decision letters impugned in this case as providing for those who left the United Kingdom after November 7^th 2006 "to have any time spent outside the United Kingdom counted as if it had been spent inside the United Kingdom with HSMP leave": see paragraphs [50] and [58] above.
120. The reason given by the Secretary of State why this policy was thought justified was that, "insofar as [migrants'] decision to leave the UK was based on their inability to comply with certain criteria [for the grant of an extension to their leave] that, it was later held, could not lawfully have been applied to them, the [Secretary of State] considered that it would be inequitable to disregard any period of time spent outside the UK as a result of that unlawful act when assessing qualification for ILR": see paragraph [38(5)] of the Defendant's Summary Grounds and paragraph [40(5)] of her Detailed Grounds. In other words the justification offered for treating time spent outside the United Kingdom as time spent here was that a migrant should not be prejudiced if he left because he thought that he would not be able to meet the new unlawful criteria. The prejudice which the Secretary of State thought it would be "inequitable" for him to suffer was not merely the loss of any opportunity to gain ILR but also the delay in obtaining it, if time spent outside this country is a justified reaction to the Secretary of State's unlawful action, was not counted as time spent here.
121. It is to be observed, however, that in fact the policy does not require any consideration to be given to the actual reason why an individual may have left after November 7^th 2006. It would apply just as much to an individual, for example, who left this country after November 7^th 2006 because of his experience of life here but who subsequently changed his mind and wanted to return, as it does to those whose decision to leave was based on their inability to meet the new criteria for leave introduced in that month. Mr Lewis had no instructions on why that should be but he submitted, in my judgment plausibly, that it was probably to avoid having to commit the resources that would otherwise have been required to investigate the reasons why individuals had left. The fact that the application of the policy does not in fact depend on the reason why an individual left this country, however, is a matter to which I shall have to return.

d. consideration

122. Mr Seddon effectively made two complaints. These were (i) that it was unfair that there was no similar policy for those who left after the changes made unlawfully in April 2006 and (ii) that it was unfair that the policy did not equally apply to those who decided not return to this country after November 7^th 2006 as it did to those who left after that date.
123. I shall consider the second complaint first.
124. In accordance with the guidance applicable when the Claimant was admitted to the HSMP, it was permissible to take trips abroad of three months or less without breaching the requirement that the individual had to have spent a continuous period of four years in the United Kingdom to qualify for ILR (provided that the periods totalled less than six months in that period): see paragraph [14] above. The Claimant left this country on August 30^th 2006. He had not been out of this country for three months when the Secretary of State introduced the unlawful changes in November 2006. He and his wife decided not to return to this country having considered the significance of those changes for any further application for leave in "late 2006". It is not clear whether that decision was taken in the three month period for a permitted absence. But that is not a point the Secretary of State has taken in this case. Instead she draws a sharp distinction between those who left after November 7^th 2006, and those who did not return to this country after that date, because of the changes introduced in that month. When I asked Mr Lewis why an individual who happened to be on holiday when the changes were announced and who then decided not to return to this country because of them should be treated differently from someone who left because of them, he could not suggest any reason. In my judgment there is none. The reason for the policy according to the Secretary of State is that a migrant should not be prejudiced if he left because he thought that he would not be able to meet the new unlawful criteria. In that context it does not matter whether an individual left or did not return because he thought that he would not be able to meet them. In each case he decided not to continue to make his home here because of the Secretary of State's unlawful action, something he would not have done but for her action. In my judgment, therefore, there was no rational basis for the distinction drawn by the Secretary of State between those who left, and those who (like the Claimant) did not return to, this country after November 7^th 2006.
125. The position with respect to those who left after the change made unlawfully in April 2006 is not as straightforward.
126. The Secretary of State's reason for distinguishing between those who left after that change and those who left after the ones introduced in November 2006 concerns the nature and significance of the respective changes. The reason for the policy in PG1 for those who left after the changes introduced in November 2006 was that those who left because they would be unable to comply with the new criteria (such as qualifications and past earnings) should not be prejudiced. By contrast, so the Secretary of State asserts, the change made in April 2006, increasing the qualifying period of residence for ILR from four to five years, did not change the nature of the criterion to be satisfied: it merely lengthened the period of residence required. Unlike the changes in November 2006, in the Secretary of State's view those in April 2006 did not affect the ability of those already on the HSMP to qualify for ILR fundamentally. Indeed Mr Lewis submitted, correctly, that there was nothing to suggest that the Claimant had left the United Kingdom in August 2006 as a consequence of any fundamental inability to reside here continuously for a period of five years, instead of four. The Claimant did not decide to abandon his intention to settle here until after the changes made in November 2006 and he did so principally because of them. The effect of the changes made in April 2006 in his case was the uncertainty they generated about whether he would obtain ILR eventually if the Secretary of State was free to change the relevant criteria again (as she had done in April 2006), a concern no doubt strengthened by the changes made in November 2006.
127. Mr Seddon submitted that the Secretary of State's justification for this difference in treatment simply revived an argument rejected by Cox J in HSMP2 which the Secretary of State had then advanced to justify the extension of the qualifying period for ILR from four to five years notwithstanding the legitimate expectation of those already on the HSMP. In that case, in considering whether there was sufficient justification for the change in the length of the qualifying period, Cox J rejected the Secretary of State's case that the change had no negative impact on those on the HSMP. She accepted that there was clear evidence of hardship and disadvantage caused by the extension of the qualifying period. She found (at [75] and [78]) that, quite apart from the psychological and emotional impact of the change, there could be

"financial difficulties caused because of the inability to secure a competitive mortgage without indefinite leave to remain; a continuing lack of good employment or promotional opportunities without indefinite leave; an inability to comply with the travel requirements of employment, due to the scheme restrictions on travel abroad or the need for visas, with consequential career setbacks and affects on CVs; and the necessity now to pay overseas students' fees for the entirety of the course, for children who were due to start their university courses here after 4 years' continuous residence and the attainment of settlement."

128. The issue that Cox J had to consider in HSMP2, however, is different from that in this case. In that case the issue was whether there was sufficient justification shown for frustrating a migrant's legitimate expectation. In this case the issue concerns whether there was sufficient justification for treating a period spent outside the United Kingdom as if it had been spent here when there was no legitimate expectation that it would be. The distinction that the Secretary of State draws between the nature and significance of the changes made in April and November 2006 is not one in my judgment that is devoid of any rational foundation in relation to that question. The difficulties created by the changes in November 2006 directly affected the prospects of a migrant achieving further leave by altering what he had to show that he had achieved whilst in this country; those in April 2006 did not do so. Those made in April 2006 may well have created other difficulties for some migrants and uncertainty about what they might have to show to obtain further leave if the Secretary of State was free to make changes in the relevant criteria. But whether those matters would provide sufficient reason to abandon any effort to make this country a migrant's home (and thus provide a justification for treating time spent abroad thereafter as if it had been spent in this country when dealing with a later application for ILR) could depend on what the effect of any such difficulties and uncertainty in fact was in any migrant's case and whether or not his reaction to them was reasonable in all the circumstances.
129. In my judgment, therefore, the difficulty with the Secretary of State's justification for the difference in treatment between those who left after the changes in April 2006 and those who left after those in November 2006 lies primarily in the fact that her policy with respect to those who left after the changes made in November 2006 does not require consideration of whether an individual in fact left this country because of the changes then introduced, much less whether that was a reasonable reaction given the likely impact of them on him. In my judgment, however, that of itself is not itself fatal to the Secretary of State's case. It is not unreasonable for the Secretary of State to consider the generality of cases that may fall into a particular category when considering what policy (if any) to adopt for dealing with cases in that category. It is equally not unreasonable for the Secretary of State then to consider whether the number in that category who ought not to be given any benefit which any policy affords to those in it (given the justification for providing that benefit) is likely to be sufficiently small that devoting administrative resources to identifying any exceptions would not be justified in the public interest (given that there may be other uses to which such resources can more usefully be devoted). That appears to be the approach that the Secretary of State adopted with respect to those who left in consequence of the changes made in November 2006. By contrast the Secretary of State appears to have thought, not unreasonably, that the change made in April 2006 would not have justified migrants then on the HSMP generally deciding not to abandon their efforts to make their home here. In such circumstances a decision not to adopt a general policy of treating time spent abroad as time spent here if an individual left this country after that change would not be unreasonable, provided always that the Secretary of State remained prepared to consider in any individual case whether the reasons why a migrant on the HSMP had left justified his departure.

(iv) the decisions impugned in this case

130. For the reasons given above, the Claimant had no legitimate expectation when the decisions impugned were taken that he would be granted ILR in accordance with the terms of the HSMP when he was admitted to it given his absence abroad from August 30^th 2006 to February 9^th 2009. He had been continuously resident with HSMP leave in this country (given the stay granted by Ouseley J) only since February 9^th 2009. He has not yet spent a continuous period of four years with leave in the United Kingdom.

a. the decision dated August 6^th 2009

131. In July 2009 the Claimant varied his application for leave to remain to make an application for ILR to be granted under PG2. The Claimant's representatives also asked for the period of his absence abroad to be waived "as per the Judicial Review decision": see paragraph [49] above.
132. The decision impugned dated August 6^th 2009 was said to have taken "in accordance with" PG1 and PG2. Unsurprisingly, on that basis, it was refused. The Claimant plainly did not meet the residence requirements under PG2: see paragraphs [32]-[33] above. He was not regarded as meeting the requirements under PG1 if time spent abroad was to be treated as time spent here as he had left before November 7^th 2006: see paragraph [50] above.
133. The complaint that the decision letters fail to give reasons for rejecting the application for ILR must fail. It is true that the decision letters did not address the contention that either HSMP1 or HSMP2 required the time spent abroad to be treated as if spent here. But in my judgment that is irrelevant since neither judgment had that effect. No argument had been addressed to the Secretary of State that she should consider the reasons why the Claimant had left after April 2006, no doubt because the Secretary of State was told (incorrectly) that the Claimant was on holiday abroad when the changes were made in November 2006. The complaint that the Secretary of State failed to give reasons for rejecting any such argument must be rejected since that argument had not been advanced. Similarly no argument had been addressed to the Secretary of State that it was unreasonable or unfair to distinguish between those who left after November 7^th 2006 and those who decided not to return after that date or those who had left after the changes made in April 2006. The complaint that the Secretary of State failed to give reasons for rejecting those contentions must likewise be rejected since they had not been advanced.
134. But, even if the arguments based on inconsistency of treatment had been advanced, any failure to give reasons to deal with them would not have undermined the refusal to grant ILR. Those who left after November 7^th 2006 without seeking a further extension of their leave were not entitled to be granted ILR under that policy. They were entitled to be granted an extension of their leave for three years or enough leave as would enable them to meet the qualifying period for settlement (whichever was the greater). If granted such limited leave, then, taken with the other provisions of the policy, an application for ILR might no doubt be made during it. But the policy in PG1, even if applicable, only provided initially for the grant of a limited period of leave.
135. The question whether such a limited period of leave should have been granted was not apparently considered. The Claimant has decided not to maintain any case challenging the decisions in August 2009 on the basis of such a failure, given that the Secretary of State has now reconsidered that issue. But in any event the reality is that the Secretary of State has reconsidered the Claimant's case in her decisions (for which reasons were given in April and June 2012) when she granted further leave to remain but refused indefinite leave to remain. Given the interim relief granted by Ouseley J, the Claimant has not identified any practical point in quashing the decision made in August 2009 refusing ILR, even if it was flawed in some respect.

b. the decision said to have to been contained in the response dated February 1^st 2010 to the pre-action protocol letter to maintain the earlier decision taken in August 2009 refusing ILR

136. In practice again there appears no practical point in considering the validity of response to the Claimant's pre-action protocol letter. I have, however, borne in mind the reasons given in the letter dated February 1^st 2010 when considering what are now the relevant substantive decisions impugned made subsequently in 2012 on the reconsideration of the Claimant's case.

c. the decision to refuse ILR but grant further leave to remain communicated by e-mail on April 24^th April 2012 and by notices on June 7^th 2012

137. Mr Lewis submitted that, having considered the Claimant's particular circumstances, the Secretary of State decided to grant him further leave to remain until February 9^th 2009. By that time, if he remains here, the Claimant should be eligible for ILR in accordance with the terms of the HSMP applicable to him, as he will have spent four years continuously with leave in the United Kingdom under the HSMP following his return to this country on February 9^th 2009. Mr Lewis contended that, in doing so, the Secretary of State had considered (a) the consequences for the Claimant and his family of the unlawful changes to the HSMP in April and November 2006 in putting them in a position of uncertainty regarding the qualifying criteria for settlement and (b) the "injustice" that would be caused to them if they were to be deprived ultimately of an opportunity to qualify for ILR in accordance with the terms of the HSMP applicable to them and requited to leave the United Kingdom, because of decisions which they took in reaction to her unlawful actions. He submitted that the Secretary of State was entitled to refuse ILR as the Claimant had not by then completed a period of four years continuous lawful leave in the United Kingdom owing to his own decision to return to India. Mr Lewis submitted that this Court should only interfere with the Secretary of State's discretionary decision to grant the Claimant further leave to remain, rather than ILR, if it can be said to be infected by an error of law, such as a failure to consider a relevant matter or unreasonableness. But it was not.
138. The Secretary of State has filed no evidence in response to this claim or which explains the reasons for the decisions taken on her reconsideration of the Claimant's case following the adjournment of the hearing of this claim on March 15^th 2012. Insofar as the Secretary of State had reasons for what she then did on that reconsideration, the only material from which they can be discerned are an e-mail from the Treasury Solicitor sent on April 24^th 2012 and the decision notices given on June 7^th 2012: see paragraphs [57*] and [58*] above.
139. In my judgment these do not disclose the process of reasoning that Mr Lewis submits that the Secretary of State followed. The reason given in the e-mail for the grant of further leave to remain is that, had the application for an extension of the Claimant's leave (which he had initially made on April 16^th 2009) not been varied but had been considered, then, "under the old rules", the Claimant would have been granted an extension to enable him to acquire the four years required for settlement. That appears to be a reference to paragraph 135D of the Immigration Rules that applied when the Claimant was admitted to the HSMP. (Although that extension could only be granted under paragraph 135E for a period not exceeding three years, a longer period could have been granted under PG1: see paragraph [27] above). The decision appears to have been made, therefore, simply to give the Claimant an extension to which he would have been eligible in accordance with the terms of the HSMP when he was admitted to it had he applied for it (as he did) in April 2009 and not varied his application.
140. There is nothing in that e-mail or in the notices given on June 7^th 2012 that makes any reference to the reasons why the Claimant had left this country on August 30^th 2006 and decided not to return after the changes made in November 2006; whether their reaction to those unlawful changes (which the Secretary of State has not criticised) was reasonable in the Secretary of State's view; or to any consequences those changes have had in practice for the Claimant and his family.
141. More substantially for present purposes, the e-mail and the notices merely reiterate, in relation to the policy in PG1 which dealt with those who left the United Kingdom after November 7^th 2006 without applying for an extension, that the policy applied only to those who left after that date, and not to those who (like the Claimant) may have left before and the e-mail simply asserts that there is no "near miss" in immigration law. In my judgment this fails to provide any reasons for rejecting the contention that the Claimant should be treated in the same way as those who left because of the changes introduced in November 2006, as he had decided not to return following them. For the reasons I have already given, the Secretary of State had no rational reason for distinguishing between those two types of case and she has failed to identify any in the Claimant's case.
142. True it is, as I have indicated above, that, if that policy had been applied, it would have resulted in the Claimant being given a further limited period of leave for three years rather than ILR. But it would also have enabled him to treat the period he spent outside the United Kingdom (at least from the time when he decided not to return, if not earlier) as if it had been spent here when subsequently applying for ILR. By April 2012, therefore, the Claimant would have been in a position to assert (had he been granted further limited leave to remain in August 2009 with the same consequences as the limited leave granted under PG1 to those who had left after November 7^th 2006) that he should be treated as having already spent a continuous period of four years with leave in this country. In those circumstances in my judgment the notices subsequently given in June 2012 refusing to grant ILR as "the time you have spent outside the UK does not count towards settlement" are flawed as they are based on the assumption that the Secretary of State was entitled to treat that period (or at least that period after the Claimant's decision not to return to this country) in that manner.
143. In the letter dated February 1^st 2010 the Secretary of State had pointed out that the changes made in April 2006 did not affect the Claimant's ability to remain in the United Kingdom "as he would only have had to continue to meet the same criteria that was in place when he entered the scheme". In that letter, the e-mail on April 24^th 2012 and the notices given on June 7^th 2012 no consideration was given to whether or not the Secretary of State considered that the Claimant was justified in leaving the United Kingdom on August 30^th 2006 for the purpose which he did following the changes unlawfully made in April 2006, without having finally determined to abandon his intention to settle here (and having only subsequently abandoned it after considering the likely effect of the changes unlawfully made in November that year). For the reasons given above, in my judgement the Secretary of State should have done so and given reasons why his departure on August 30^th 2006 for the purpose for which he left was not a justified reaction in the circumstances to the changes made in April 2006 (if that is indeed what she thought).
144. It follows, therefore, that the notices given on June 7^th 2012 refusing the Claimant, his wife and daughter ILR will be quashed.

(v) the declarations sought about PG1 and PG2

145. I do not propose to grant the declarations sought in respect of PG1 and PG2. Whatever the merits of the legal arguments, a declaration that says that a policy document is unlawful because it "does not address a response to the unlawful frustration of the legitimate expectation of a migrant" in certain circumstances, but which does not state what "response" it should have contained, is not in my judgment a declaration that states clearly what it is that the policy unlawfully failed to contain. Even if it was appropriate to grant any declaration about what a policy must contain to be lawful, the declarations sought are far too vague.
146. In any event I am not persuaded that such a declaration is appropriate. The substantive question in cases such as this is not what a policy document must contain. The Secretary of State is free to adopt whatever reasonable policies she may wish to adopt. The Claimant does not say that the policies which PG1 and PG2 contain are themselves unreasonable or otherwise unlawful. His complaint is that, given those policies, a similar approach ought to be adopted in the case of others. But that may depend on what the facts of those other cases are and whether any difference in treatment is one no reasonable Secretary of State could justify having regard to those facts. Accordingly in my judgment the relevant legal question is not whether PG1 or PG2 addressed some case which they did not do. It is whether, on the facts of any particular case, the Secretary of State's decision, having regard to whatever lawful policy she may have adopted in them, is lawful.

CONCLUSION

147. The Claimant's case is that he has been unfairly treated: his legitimate expectation has been unlawfully frustrated; the Secretary of State's response to her earlier unlawful decisions was unfair to the Claimant; and she has not treated the Claimant fairly by comparison with others who have been treated differently. Although it has been said that the relevant test in all these cases is whether a decision is "so unfair as to be an abuse of power" or is "conspicuously unfair", such a test of legality is not illuminating. As others have said, "abuse of power" is not itself a standard of review. Nor do such formulas reveal how unfair a decision must be if it is to be treated as invalid. In practice the approach of the Courts now appears to be that a decision frustrating a legitimate expectation should be regarded as unlawful if in the circumstances its denial is not proportionate. But that is not the test that has been applied when considering the legality of a decision that follows an earlier unlawful decision that denied the individual concerned a benefit to which he was then entitled. Nor is it the test that has been applied when it is alleged, in cases not involving Convention rights or EU law, that the difference in treatment of individuals in the similar situations is unfair. In practice in such cases the decision maker is required to act reasonably, rather than proportionately, in the circumstances. That approach is consistent with the normal obligations of decision maker in public law.
148. In this case the Claimant's legitimate expectation was that he would be granted ILR in accordance with the terms of the HSMP when he was admitted to it. Those terms required him to have spent a continuous period of four years in this country with leave before he would be eligible for the grant of ILR. When the decisions refusing him ILR were taken, the Claimant had not spent such a period here given his absence abroad from August 30^th 2006 to February 9^th 2009. He has been continuously resident with HSMP leave in this country (given the stay granted by Ouseley J) only since February 9^th 2009. He has not yet spent a continuous period of four years with leave here. He has, therefore, no legitimate expectation that he should have been granted ILR yet.
149. When a decision maker has taken a decision unlawfully that will frustrate an individual's legitimate expectation that he will receive a substantive benefit on satisfaction of certain conditions (as the Secretary of State did in this case) and an individual cannot satisfy those conditions when he otherwise expected to be able to do so because of the action which that individual took to mitigate the potentially adverse effects on him of that unlawful decision (as the Claimant did), then, in considering whether or not that benefit should nonetheless be granted, the decision maker must take into account her previous unlawful action, the reasonableness (or otherwise) of that individual's reaction to it and what the resulting consequences for him (if any) can be seen to have been. She must also take into account any public interest in requiring satisfaction of the stipulated conditions if the benefit is to be granted. She will not be obliged to grant that benefit, however, unless no reasonable person in the circumstances could refuse to grant it. In such cases a decision maker may decide (as the Secretary of State did in this case) in effect to waive compliance with certain conditions (or to treat them as satisfied) in some cases but not in others. But, if she does so, then a refusal to treat them as satisfied in one case but not in another will not be lawful if no reasonable person could justify the resulting difference in treatment.
150. In this case the Secretary of State (other things being equal) could reasonably have refused to grant the Claimant ILR given that he had not spent a continuous period of four years with leave in this country. But other things were not equal. The Secretary of State had no rational justification for refusing to treat the period which the Claimant had spent abroad until his return in February 2009 as having been spent here with leave (or at least the period after he decided not to return to the United Kingdom in "late 2006" given the changes unlawfully made to the HSMP in November 2006). Her policy is to treat the period spent abroad by those migrants who left after those changes as having been spent in the United Kingdom with leave when considering whether or not to grant them ILR subsequently if she grants them further leave. The Secretary of State considered it to be inequitable if such migrants were only to be eligible for ILR later than they had initially anticipated if they decided not to continue to make their home here because of the Secretary of State's unlawful action in November 2006 (as the Secretary of State assumed that those who left after November 7^th 2006 had done). But that was equally what the Claimant decided to do. If such a reaction to the Secretary of State's unlawful action justifies treating the period which such migrants spent abroad as if it had been spent here when considering any subsequent application for ILR they make after they have been further leave, so equally it justifies treating the Claimant in the same way. Having decided this year that the Claimant should have been granted an extension to his HSMP leave in August 2009 and to grant him a limited extension to his leave, therefore, the Secretary of State could not then reasonably refuse to treat the period which the Claimant had spent outside the United Kingdom (or at least the period after he decided not to return in late 2006) as having been spent in this country when considering his application for ILR. Her decision not to do so when refusing to grant ILR in the notices dated June 7^th 2012 was accordingly flawed.
151. The Secretary of State's reconsideration of the Claimant's case this year was further flawed (a) by a failure to consider whether the Claimant acted reasonably in leaving the United Kingdom on August 30^th 2006 following the change unlawfully made in April 2006 for the purpose which he did, without having finally determined to abandon his intention to settle here and having only abandoned it after considering the likely effect on him of the changes made unlawfully in November that year and/or (b) by her failure to give any reasons why his departure on August 30^th 2006 for the purpose for which he left was not a reasonable reaction in the circumstances to the unlawful change made in April 2006 (if that is what she thought). If his departure for that purpose was a reasonable reaction in the circumstances to that unlawful change, then again the Secretary of State would not appear to have had any rational justification for not treating the period he spent abroad after that departure as having been spent in this country, as she did in the case of those who left the United Kingdom after November 7^th 2006, given that the Claimant only abandoned his intention to settle here and not to return in response to the changes the Secretary of State sought to introduce unlawfully in that month.
152. The Secretary of State's decision on June 7^th 2012 refusing the Claimants ILR will accordingly be quashed.