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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 164
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P1170/06
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OPINION OF LORD DRUMMOND
YOUNG
in the Petition of
BASHKIM ELSHANI
Petitioner:
for
Judicial Review of
a decision dated 6 October 2005
by the Secretary of State for the Home Department to refuse to grant
indefinite leave to remain in the United
Kingdom to the petitioner and his family
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Petitioner: Forrest; Drummond Miller WS
Defender: Carmichael; Solicitor to the
Advocate General
3 October 2007
[1] The
petitioner is a national of the Federal Republic
of Yugoslavia, from the provenance of
Kosovo. On 2 July 1999 the petitioner entered the United
Kingdom with his wife and three
children. He did so at the invitation of
the United Kingdom
government in terms of the Humanitarian Evacuation Programme operated by the
government as a result of the crisis then occurring in Kosovo; that Programme was designed to assist ethnic
Albanians who at the time were suffering serious persecution within
Kosovo. The Home Secretary granted
exceptional leave to enter and remain in the United
Kingdom until 2 July 2000.
The petitioner made subsequent applications for leave to remain in the United
Kingdom, which were granted until 31 January 2004.
[2] On 24 October 2003 the Home Secretary
made an announcement to the effect that families who had been United
Kingdom since 2 October 2000 and one of whose members had made an
asylum claim before that date would be permitted to remain in the United
Kingdom, even if the asylum claim had not
been successful. In August 2004 the
concession was amended to include Kosovan families who had arrived under the
Humanitarian Evacuation Programme before 2 October 2000 but had not claimed asylum until
after that date. The policy as amended
is contained in APU Notice 4/2003, as updated to 20 August 2004.
The significant parts of the concession as so updated are as follows:
"Introduction
This note sets out the criteria for granting indefinite leave to remain or
enter, exceptionally outside the Immigration Rules, as a result of the
concession announced by the Home Secretary on 24 October 2003 to allow families who have been in
the UK for
three or more years to stay (the 'concession' henceforth).
Basic criteria of the concession
The basic criteria for deciding whether or not a family will qualify for
the exercise are:
ท
The applicant applied for asylum before 2nd October 2000; and
ท
The applicant had at least one dependant aged
under 18 (other than a spouse) in the UK
on 2 October 2000 or 24th October 2003.
...
Humanitarian Evacuation Programme
Kosovan families who arrived under the Humanitarian Evacuation Programme
before 2 October 2000
but did not claim asylum until after this date, are included in the scope of
this exercise if they meet the necessary criteria".
[3] On
22 December 2003 the
petitioner applied for indefinite leave to remain in the United
Kingdom along with his wife and three
children. He subsequently contacted his
Member of Parliament, Michael Martin MP, about the application. Mr Martin wrote to the respondent by
letter dated 17 February 2004. The letter stated:
"The family have
applied for indefinite leave to remain and they are interested in terms of the
amnesty scheme announced by the Home Office in October.
I would be
obliged there for if you could let me know the present position regarding Mr Elshani's
application for asylum and I look forward to hearing from you".
The letter refers to an application
for asylum, but it is common ground that at its date the petitioner had not in
fact made any formal application for asylum in the United
Kingdom.
Mr Martin received a reply dated 8 September 2004.
In that reply the respondent's representative stated:
"Mr Elshani
and his family entered the United Kingdom
on 2 July 1999 under
the Kosovan Humanitarian Evacuation Programme.
As you are aware Mr Elshani and his family were granted successive
exceptional leave to remain until 31 January without his asylum
application being considered. On 26 January
Mr Elshani applied for ILR. Regrettably,
this remains outstanding.
...
Mr Elshani
and his family were granted exceptional leave until 31 January. Under the original terms of the exercise they
do not appear to be eligible for consideration as Beverly Hughes' [a Home
Office minister] letter explained that the concession does not cover families
who have been granted any form of leave.
However, further reflection has been given to the terms of the exercise
and it has now been decided that families previously granted limited leave
should be included under the terms of the exercise".
The letter went on to state that
neither the petitioner nor his family need "apply further to be considered, as
we will be contacting families who appear from their records to qualify for the
exercise...".
[4] By
letter, dated 18 July 2005,
a representative of the respondent wrote to the petitioner, referring to the
concession of 24 October 2003
and stating that the petitioner's application for leave to remain was being
reviewed as part of that exercise.
Thereafter the petitioner completed a document known as a family
questionnaire in relation to the application.
By letter dated 6 October
2005 a representative of the respondent wrote to the petitioner in
the following terms:
"We have
carefully considered whether you are eligible for a grant of indefinite leave
within the terms of the exercise [in terms of the concession of 24 October 2003], but for the
reasons given below we have concluded that you do not qualify.
In order to be
eligible for the ILR Exercise you need to have claimed asylum and that asylum
claim should have been lodged before 2 October
2000, you have not lodged a claim for asylum. Therefore you do not satisfy the eligibility
criteria for inclusion in the exercise".
It was common ground that that
letter amounted to a refusal to grant the petitioner and his family indefinite
leave to remain in United Kingdom
in terms of the policy announced on 23 October
2003, as subsequently extended.
Arguments
[5] The petitioner now seeks
judicial review of the decision intimated by the letter of 6 October 2005. In his petition he seeks declarator that the
decision was irrational and reduction of the decision. When the application called for a first
hearing, counsel for the petitioner in fact advanced submissions on two separate
grounds: that the decision of the
respondent was irrational, and that it defeated the petitioner's legitimate
expectations. On the irrationality
argument, counsel submitted first that the decision proceeded on errors that were
not properly resolved in subsequent procedure.
He referred to the Home Office letter of 8 September 2004, and submitted that it contained a
plain error when it referred to an application for asylum that the petitioner
had made; no such application had in
fact been made. This error had not been
resolved in any way in subsequent correspondence; indeed, in the Home Office letter of 18 July 2005 it was stated that
the petitioner's application for indefinite leave to remain was being reviewed
as part of the exercise under the concession of 24 October 2003.
As a result of these errors, the petitioner should be treated as having
made a de facto application for
asylum. This was supported by the fact
that he had fled from persecution in Kosovo under a programme sponsored by the United
Nations. Secondly, counsel submitted
that the decision to refuse indefinite leave to remain to the petitioner was
not consistent with the Home Secretary's stated policy objective in terms of
the announcement of 24 October
2003. That policy appeared
in the introductory paragraph, and was to allow families who had been in the United
Kingdom for three or more years to
stay. The need for a formal asylum
application was not relevant to that objective.
Consequently it should not matter that the petitioner had made no formal
application for asylum; it was
sufficient that he was a de facto
applicant by virtue of his being a refugee from persecution. Thirdly, counsel submitted that in refusing
the petitioner's application for indefinite leave to remain the respondent had
failed to take into account the petitioner's personal circumstances. It should have been plain to the respondent
that the petitioner had fled from persecution in Kosovo in 1999, and indeed had
been encouraged by the United Nations to leave.
He had been granted exceptional leave to remain on five occasions. Against that background, the petitioner's
position required anxious scrutiny, as explained by Lord Bridge
in R v Home Secretary, Ex p Bugdaycay,
[1987] 1 AC 514, at 531G.
[6] Counsel's
second argument was based on the statements made by the Home Secretary's
representatives in the letter to Mr Martin of 8 September 2004 and in the letter to the petitioner
of 18 July 2005. The first of these, he submitted, was a form
of promise that the petitioner would be dealt with under the concession
announced on 24 October 2003; that
was what appeared from the terms of the letter and the fact that it was
indicated that the petitioner need not do anything further to be
considered. The second of these letters,
it was said, was a representation that the petitioner's existing application
was being reviewed as part of the exercise following the granting of the
concession. Counsel referred to the
analysis of the law by Schiemann LJ in R
(Manik Bibi) v Newham London Borough Council, [2002] 1 WLR 237, at
paragraph 19:
"In all
legitimate expectations cases, whether substantive or procedural, three
practical questions arise. The first
question is to what has the public authority, whether by practice or by promise,
committed itself; the second is whether the authority has acted or proposes to
act unlawfully in relation to its commitment; the third is what the court should do".
Following that analysis, counsel
submitted that the respondent, as decision maker, had committed himself to
granting indefinite leave to remain to families that had been resident in the United
Kingdom for three years. On the second question, the respondent
proposed to act unlawfully in denying indefinite leave to remain to the
petitioner and his family, who had been resident in United
Kingdom for more than three years. On the third question, the decision was
conspicuously unfair; the petitioner was
clearly entitled to assume that he would be granted indefinite leave to remain. Consequently the court should grant
declarator and reduction as sought by the petitioner.
[7] Counsel
for the respondent submitted that the refusal of indefinite leave to remain had
followed the policy underlying the concession of 24 October 2003.
The reason for the concession was to clear a backlog of asylum
applications by letting some applicants stay, regardless of the merits of their
asylum claims. The underlying problem
was a backlog of claims that were subject to an appellate process. In support of this contention she referred me
to the statement made by the then Home Secretary on 24 October 2003 in which he explained the
reasons for the concession. He referred
to the backlog of cases and stated that granting the favoured group indefinite
leave to remain was "the most cost-effective way of dealing with the situation".
He referred specifically to the cost of
taking appeals to the courts. Counsel
submitted that the purpose of the concession was not to stimulate further
claims for asylum; indeed, it would be
irrational to invite a claim for asylum merely to bring a family within the
terms of the concession.
[8] In
relation to the petitioner's argument based on irrationality, counsel submitted
that the letter to Mr Martin of 8 September
2004 did not contain anything that amounted to a representation
that in the absence of a claim for asylum the petitioner would be allowed to
stay. There was an erroneous reference
to an application for asylum, but that had not prejudiced the petitioner in any
way. The petitioner had founded on the
policy that was said to underlie the concession, but had misstated that
policy. The policy was not merely to
permit families who had resided in the United
Kingdom for more than three years to remain;
it was rather to reduce the backlog of
asylum claims by permitting certain families who had lodged asylum applications
to remain. On that basis, there was
nothing irrational in the respondent's decision. Counsel for the petitioner had also relied on
an alleged failure to take into account the petitioner's personal
circumstances, in particular his status as a refugee from Kosovo in 1999. On this argument, counsel for the respondent
referred to the terms of the petitioner's original leave to remain in the United
Kingdom.
This stated that, at the request of the United Nations High Commissioner
for Refugees, the petitioner had been granted temporary refuge in the United
Kingdom, but that he had not been considered
for refugee status under the terms of the 1951 United Nations Convention relating
to the Status of Refugees. That made
clear that there was nothing in the way of an asylum application in 1999. Reference was made to Delo Mongoto v Home Secretary, Court of Appeal, 19 May 2005, at paragraphs 23-25.
[9] On
the petitioner's argument based on legitimate expectations, counsel for the
respondent submitted that it is necessary for a legitimate expectation to exist
that there should be a clear and unqualified representation on which the
petitioner is reasonably entitled to rely.
Reference was made to R v Devon County Council, ex parte Baker [1995] 1 All ER 72, at 87 per
Simon Brown LJ, and to R v Home Secretary
ex parte Bajram Zeqiri, [2002] INLR 291, at paragraphs [25]-[27] and [40]-[48]
per Lord Hoffmann and paragraph [64] per Lord Rodger of
Earlsferry. In the present case there
had been no representation in any letter that the petitioner's claim under the
2003 concession would be successful, or that such claim would be successful
despite the absence of any existing claim for asylum.
Irrationality
[10] In my opinion the
petitioner's argument based on irrationality is misconceived. The first branch of the argument is based on
errors in the letter of 8 September
2004 from the Home Office to Mr Martin and in the subsequent
letter of 18 July 2005. The only significant error, however, is the
reference in the first of those letters to the fact that the petitioner's
asylum application had not been considered and remained outstanding. That error may result from Mr Martin's
own letter of 17 February 2004,
which refers to the petitioner's "application for asylum". Whatever its source, however, it seems to me
that the error was incidental to the main purpose of the letter, which was to
refer to the concession and its extension and to state that the Home Office
would contact families who appeared from their records to qualify for the
exercise; as a result nothing further required
to be done by anyone who might be affected.
In reality the petitioner had not made an application for asylum and consequently
did not come within the terms of the concession, which expressly required that
an application for asylum should have been made: see the passages cited above at paragraph
[2]. The error could not affect the
underlying factual situation in any way. Nor could it prejudice the petitioner; by the
time when the representation was made it was too late for him to make an
application for asylum that was relevant for the purposes of the
concession. Consequently the error does
not give rise to any ground of irrationality.
The same point applies to the Home Office letter of 18 July 2005, where it was stated that the
petitioner's application for indefinite leave to remain was being reviewed. Counsel for the petitioner went on to submit
that the petitioner should be treated as having made a de facto application for asylum as a result of his status as a
refugee from Kosovo in 1999. I deal with
this part of the argument below at paragraph [12].
[11] The second branch of the petitioner's argument on irrationality
was that the decision to refuse indefinite leave to remain was not consistent
with the stated policy objective underlying the concession of 24 October 2003. The argument was that that policy was to
grant indefinite leave to remain to families who had been in the United
Kingdom for three or more years. In my opinion that is not the correct
formulation of the policy. If the terms
of the concession are considered by themselves, the intention is stated to be
to grant the concession where the applicant applied for asylum before October
2000 and the applicant has at least one dependent aged under 18, other
than a spouse, in the United Kingdom
on either October 2000 or 24 October
2003. In relation to Kosovo
in refugees, it is not necessary that the application for asylum should predate
to October 2000. It follows that the
policy underlying the concession cannot be merely to grant leave to remain to
families who have been in the United Kingdom for the specified period; it is a critical condition that an application
for asylum should also have been made.
The matter is even clearer when the terms of the then Home Secretary's
statement of 24 October 2003
are considered. That statement refers to
a reduction in asylum claims and the backlog of cases resulting from such
claims. It goes on to state that "the
legacy of the historic inadequacies of the system" still existed. The statement then continues:
"Granting this
group (sc. those who benefited from the concession) indefinite leave to
remain... is the most cost-effective way of dealing with this situation and
will save taxpayer's money on support and legal aid. These are difficult decisions but I do not
believe it is the best use of taxpayer's money to take these expensive
long-standing individual appeals through the courts".
It is clear from the terms of the
statement that the reason for the concession was to clear a backlog of asylum
applications. On that basis I am of the
opinion that the policy underlying the concession was accurately stated by
counsel for the respondent, and indeed it is the policy that appears from the
terms of the concession itself. It
follows that the requirement that an application for asylum should have been
made is a fundamental part of the policy.
The petitioner had made no application for asylum, and consequently the
decision to refuse his application did not in any way run counter to the policy
underlying the concession.
[12] The third branch of the petitioner's argument on irrationality
was that the respondent had failed to take into account his personal
circumstances. In this connection,
counsel referred to the petitioner's status as a refugee from Kosovo in
1999. The petitioner's status as a refugee
also led, it was submitted, to the view that the petitioner should be treated
as having made a de facto application
for asylum. In my opinion it is
important to bear in mind the precise terms of the petitioner's leave to enter
and remain in the United Kingdom. The material parts of this document, which is
dated 2 July 1999, are
as follows:
"At the request
of the United Nations High Commissioner for Refugees you have been granted Temporary
Refuge in the United Kingdom.
...
You have not been
considered for refugee status in the United
Kingdom under the terms of the 1951 United
Nations Convention relating to the Status of Refugees, and your current leave
to enter does not entitle you to permanent settlement in the United
Kingdom".
Thus the document makes it clear
that the petitioner is not to be considered for refugee status under the 1951
Convention. It is of course under that
Convention that a refugee may seek asylum in the United
Kingdom and other signatory countries. It follows that the terms of the petitioner's
leave to enter and remain are inconsistent with any application for
asylum. On that basis, it cannot, in my
opinion, be said that there was any implied or de facto application for asylum on the petitioner's behalf. Similarly, it cannot be said that the
respondent acted irrationally in failing to treat the petitioner as a refugee
who had made an asylum application; that
was excluded by the terms of the leave to enter and remain.
[13] In this connection I should refer to the decision of the Court
of Appeal in Delo Mongoto v Home
Secretary, supra, a case dealing with the concession of 24 October 2003. The appellant had applied for asylum in
December 2002, after the time limit stipulated in the concession. It was argued that the appellant might derive
"analogical support" from the policy in asserting a claim that his removal
would be disproportionate to the legitimate aim of immigration control. Laws LJ stated (at paragraph 25):
"The Secretary
of State is entitled, and this must be elementary, to elaborate a limited
policy to assist particular categories of would-be entrants, provided, of
course, that the policy is rational and otherwise lawful, as the family
concession plainly was. It would be
quite wrong for the courts to build expectations approaching enforceable rights
on the back on such a policy for the benefit of persons to whom, in terms, the
policy did not apply and, it is assumed, was not intended to be applied. For the courts to take such a course would or
might offer a wholly illegitimate discouragement to the adoption of humane, but
exceptional, policy positions by the Secretary of State. I would reject this part of the appellant's
case out of hand".
I respectfully agree. It is essential, as a matter of good
government, that the Home Secretary and other ministers should be able to
define the precise ambit of a concession, subject only to the overriding
requirements of legality and reasonableness.
In such cases the courts must respect the limits that are set, and
should not seek to expand them by devices such as analogy or deeming the "de facto" to be as good as the de jure.
Even if the result in an individual case seems unfair, it is essential
that the line should be held; otherwise
there will be a substantial disincentive to making sensible and rational
concessions to limited classes of people.
Moreover, the unfairness will nearly always be apparent rather than
real. The point of a concession is to be
generous to a limited category of people.
That is not unfair, any more than it was unfair for the landowner in the
parable to pay the labourers who had been hired at about the eleventh hour the
same agreed wage as those who had borne the heat and burden of the day.
Legitimate expectations
[14] The petitioner's second
argument was based on the concept of a legitimate expectation. The requirements for such an expectation have
been discussed in a number of cases. In R v Devon County
Council, ex parte Baker, supra, Simon Brown LJ stated (at [1995] 1 All ER
87):
"[T]he
claimant's right will only be found established when there is a clear and
unambiguous representation upon which it was reasonable for him to rely. Then the administrator or other public body
will be held bound in fairness by the representation made unless only its
promise or undertaking as to how its power would be exercised is inconsistent
with the statutory duties imposed upon it".
In R v Home Secretary ex parte Bajram Zeqiri, Lord Hoffmann stated (at
[2002] INLR 291, paragraph [44]):
"It is well
established that conduct by an officer of state equivalent to a breach of
contract or breach of representation may be an abuse of power for which
judicial review is the appropriate remedy...
This particular form of the more general concept of abuse of power has
been characterised as the denial of a legitimate expectation".
In the same case, Lord Rodger of
Earlsferry stated (at paragraph [64]) that what is required in this
context if it is to be reasonable for a person to rely on a representation is a
"clear and unambiguous representation".
[15] For the petitioner it was contended that statements in the letters
sent by representatives of the respondent to Mr Martin on 8 September
2004 and to the petitioner on 18 July 2005 amounted to promises that the
petitioner would be dealt with under the concession of 24 October 2003, or
that the petitioner's existing application was being reviewed under the
concession. In my opinion the letters
cannot be construed in this way. The
letter to Mr Martin merely stated that the concession was being applied,
and that representatives of the Home Office would contact families who appeared
from records to qualify for a concession.
No promise or undertaking was given to the petitioner and his family; it
is reasonably clear from the terms of the letter that they would only obtain
the benefit of the concession if they met its criteria. Nor was there anything in the way of a "clear
and unambiguous representation" that the petitioner and his family would
benefit from the concession; the
applicability of the concession was left open.
Exactly the same point applies to the subsequent letter to the
petitioner dated 18 July 2005. That letter stated that the petitioner's
application for leave to remain was being reviewed as part of the exercise
following the granting of the concession.
There followed a request to complete a questionnaire "In order for us to
consider whether you are eligible under this exercise". The words quoted make it clear that it was
not accepted that the petitioner and his family stood to benefit from the
concession; whether they did benefit was
the issue that was being considered. In
the circumstances there is no promise or undertaking or representation along
the lines suggested by the petitioner's counsel. Nor can it be said that there is anything in
the present case remotely equivalent to a breach of contract or breach of
representation. For these reasons I am
of opinion that the petitioner's argument based on a legitimate expectation
must fail.
Decision
[16] I accordingly conclude that
the petitioner has not made out grounds for judicial review. I will refuse the orders sought and dismiss
the petition.
