EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2014] CSIH 29
Lady Paton Lord Drummond Young Lord Wheatley	P1212/12 OPINION OF THE COURT delivered by LORD DRUMMOND YOUNG in the reclaiming motion by DM Petitioner and Reclaimer; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: for Judicial Review of the failure of the respondent to grant the petitioner indefinite leave to remain in the United Kingdom _______________

Act: Carmichael QC, Caskie; McGill & Co

Alt: Pirie; Office of the Advocate General

25 March 2014

[1] The reclaimer is a citizen of Algeria, born in 1970. He arrived in the United Kingdom during 1998 and claimed asylum on 4 December of that year. His application for asylum was refused following two failures to attend for screening interviews. An order for his removal was made, against which he appealed. He failed to attend the appeal hearing on 31 October 2000 and accordingly his appeal was dismissed. In August 1998 he had married a British citizen, and in 2001 he obtained leave to remain on the basis of that marriage. His marriage broke down in 2002 and his leave to remain expired on 12 December 2002. He remained in the United Kingdom thereafter, but did not maintain contact with the immigration authorities until 29 May 2009, when solicitors acting for him applied for discretionary leave to remain. This was based on two grounds: first, article 8 of the European Convention on Human Rights; and secondly a claim that the reclaimer's application should be considered or reconsidered in the light of a policy announced by the Home Secretary in July 2006 in order to resolve long-standing claims for asylum and leave to remain in the United Kingdom .

[2] On 31 August 2012 the Home Secretary decided to grant the reclaimer discretionary leave to remain in the United Kingdom. The discretionary leave that has been granted is not indefinite leave to remain; it is for three years only and will expire on 30 August 2015. Under the present policy, however, in August 2015 discretionary leave for another three years may be granted, and after that has expired, in 2018, indefinite leave to remain is likely to be granted. The reclaimer has brought proceedings for judicial review to challenge the decision to grant discretionary leave to remain; by way of remedy he seeks declarator that he is entitled to indefinite leave to remain in the United Kingdom. He avers, in summary, that certain statements made by the Home Secretary and his representatives in July 2006 and subsequently contained an undertaking that the backlog of applications for leave to remain that existed at this time would be dealt with within five years, by 19 July 2011. Those statements gave rise to a legitimate expectation on the reclaimer's part that the claim made on his behalf in May 2009 should be considered by 19 July 2011. The claim was not in fact responded to until 14 November 2011, with leave being granted on 31 August 2012. In failing to consider the reclaimer's application fully by 19 July 2011 the Home Secretary, it is said, breached the reclaimer's legitimate expectation that his claim would be decided by 19 July 2011 or, if that did not occur, decided in accordance with the policy that applied before that date. If the reclaimer's application had been considered under that policy, by July 2011, it is said, he would have been granted indefinite leave to remain rather than discretionary leave.

[3] Detailed averments are made in support of that last contention. Under the policy introduced in 2006, a body known as the Casework Resolution Directorate was set up within the United Kingdom Border Agency (UKBA) in order to deal with a serious backlog of claims, principally for asylum, which had not been resolved by either removing the applicant or permitting him or her to remain in the United Kingdom. The Casework Resolution Directorate reviewed cases by considering factors set out in rule 395C of the Immigration Rules in accordance with published instructions and guidance given to them. Rule 395C listed various factors that were relevant in deciding whether or not a decision to remove should be made; existence of one or more of the enumerated factors tended in favour of non-removal. The averments relating to the instructions and guidance and attendant policy are not wholly clear, but for present purposes it is sufficient to say that the reclaimer avers that in practice almost all who were granted leave to remain under rule 395C were granted indefinite leave to remain during the period when the 2006 Policy was in force. In July 2011, however, it is averred that the Home Secretary amended the policy on leave to remain; thereafter a successful applicant would be granted three years leave to remain, followed by a further three years, before indefinite leave to remain could be granted. When the reclaimer's case was decided, it was that amended policy that was applied.

The parties' arguments

[4] The argument for the reclaimer is that his case should have been decided in accordance with the policy that applied between 2006 and 19 July 2011. On that basis he should have received indefinite leave to remain when his case was finally decided in August 2012. This argument was based on Parliamentary and other statements made in July 2006 which, it was claimed, amounted to a promise that the backlog of applications for asylum and leave to remain that existed at that time, generally referred to as "legacy" cases, would all be decided within five years of 25 July 2006 (or possibly within five years of 19 July 2006, when the new policy was first announced). The reclaimer accordingly had a legitimate expectation that his case would be decided prior to 20 July 2011 in accordance with the policy that then applied, or if it were decided subsequently the decision would be in accordance with the earlier policy. Inherent in this argument is the proposition that the Parliamentary statements amounted to a promise to deal with all "legacy" cases by July 2011. It is that promise that is said to have given rise to the legitimate expectation. It is further submitted that the practice followed by the Home Secretary during the period between July 2006 and July 2011 of itself gave rise to a legitimate expectation that he would be granted indefinite leave to remain, rather than limited discretionary leave.

[5] For the Home Secretary it is argued that the Parliamentary and other statements cannot reasonably be construed as containing a promise, as against a statement of aspiration, with the result that the reclaimer cannot found on any legitimate expectation. It is further submitted that even if the Parliamentary statements amounted to a promise the reclaimer could not found on it because he was unaware of them; and further that any denial of a legitimate expectation in a case such as the present is not unlawful. In addition, it is argued for the Home Secretary that the reclaimer had an alternative remedy to judicial review in the form of an appeal to the First-tier Tribunal against the decision to grant discretionary leave to remain, and that in any event the remedies sought in the present petition should be refused because proceedings were not raised promptly. Finally, it is argued that the reclaimer had failed to establish any practice followed during the period between July 2006 and July 2011 such as to create a legitimate expectation that indefinite leave to remain would be granted after July 2011.

The Lord Ordinary's decision

[6] The Lord Ordinary refused the prayer of the petition. He held, first, that the Parliamentary statements did not constitute a promise that all "legacy" cases would be dealt with within five years of 25 July 2006; the statements were rather aspirational. In relation to practice prior to July 2011, the Lord Ordinary held that the reclaimer had failed to establish that there was any practice of granting indefinite leave to remain in cases where rule 395C applied which was so unambiguous, so widespread, so well-established and so well-recognized as to carry a commitment to legacy claimants that its continuance was assured. It followed that, in accordance with the standard principle, the Home Secretary's decision fell to be made in accordance with the law, policy and practice of the time when the decision was made. On that basis, the Home Secretary's decision made on 31 August 2012 could not be criticized. The Lord Ordinary further upheld the argument for the Home Secretary that the matters raised in the present petition could have been the subject of an appeal to the First-tier Tribunal; consequently the reclaimer had failed to exhaust an available remedy. Finally, on the reclaimer's argument that he had a legitimate expectation that his case would be decided in accordance with the law, policy and practice that had been applied prior to July 2011, none of the ministerial or other statements founded upon contained a promise that all "legacy" cases would be decided in that way.

The Parliamentary and other statements regarding the "legacy"

[7] The statements made by the Home Secretary and others in respect of the "legacy" cases are central to the reclaimer's case. For that reason it is appropriate to begin by considering exactly what was said, and its context. During the period prior to July 2006 there was a major failure on the part of the immigration authorities to deal with immigration claims made on the basis of asylum or human rights. As a result a very large backlog built up, which was believed to amount to somewhere between 400,000 and 450,000 cases. This came to be known as the "legacy". The exact number was not known, because it was likely that some applicants had left the United Kingdom voluntarily or died, and there was substantial duplication of claims. Nevertheless, the total number of unresolved claims created a major problem for the Home Office. To deal with it, it was decided that special resources should be put into the relevant parts of the Immigration and Nationality Directorate. Those involved transferring the outstanding applications, which were known to amount to more than 400,000 cases, to the Casework Resolution Directorate, a special team of 950 caseworkers, who were to work their way through the outstanding cases and resolve them.

[8] The new policy was announced on 19 July 2006, and formed part of a more general range of reforms to the Home Office. On that date the Home Secretary made a statement to the House of Commons on the proposed reforms, which extended well beyond immigration. He referred to "the immigration and nationality directorate's caseload of around 400,000 to 450,000 electronic and paper records, which... are riddled with duplication and errors, and include cases of individuals who have since died or left the country, or are now EU citizens" (Hansard, HC Vol 449, col 324). The statement continued:

"We will tackle the case load in the [Immigration and Nationality Directorate] with the aim of clearing it - not in 25 years, as has been suggested, but in five or less. We will put our books in order".

It is important to note, however, that this statement was made in the context of general reforms to the structures of the Home Office. The Home Secretary continued by referring to "plans for an ambitious set of reforms across the Department", involving a radical reshaping of the structure of the Home Office. Immediately after that, in answer to a question from an opposition spokesman, the Home Secretary restated (Hansard, HC Vol 449, col 328):

"I did say that we would aim to clear up the caseload legacy in five years - or, I hope, less time than that".

The context of that statement, however, was clearly dictated by the more general statements about the fundamental reforms that were taking place to the organization of the Home Office.

[9] The details of the proposed reforms to the Home Office were set out in reports published shortly after the ministerial statement. In relation to immigration, on 25 July 2006 the Home Office published a report known as Fair, effective, transparent and trusted - rebuilding confidence in our immigration system. This report began with a foreword from the Home Secretary and the Permanent Secretary at the Home Office, in which they stated that the report set out a plan for reforming the Immigration and Nationality Directorate to manage British borders effectively. The foreword was followed by an introduction by the Minister for Nationality, Citizenship and Immigration and the Director General of the Immigration and Nationality Directorate, in which they stated that the document contained outline proposals, and that further details and consultation would follow where necessary. In the substantive part of the report, it was stated (paragraph 2.10):

"We will also deal with the legacy of older cases that have yet to be fully resolved. We plan to do this within five years or less. We will prioritize those who may pose a risk to the public, and then focus on those who can more easily be removed, those receiving support, and those who may be granted leave. All cases will be dealt with on their individual merits".

We note that that statement was made in the context of one of the objectives of the new immigration policy that was to be followed; that was to fast-track asylum decisions, remove those whose claims fail and integrate those who need protection. In a box on the same page, containing a simplified summary of the new policy, the document states "We will... deal with the legacy of unresolved cases within five years or less".

[10] On the same date, 25 July, the Home Secretary made a statement to the House of Commons about the proposals. In relation to the "legacy" he stated (Hansard, HC Vol 449, cols 736-737):

"We will deal with the legacy of unresolved cases in five years or less, as I said last week. We will prioritize those who may pose a risk to the public and then focus on those who can be more easily removed, those receiving support and those who may be granted leave. All cases will be dealt with on their individual merits: there will be no amnesty".

The statement was followed by a Parliamentary debate. In the course of this, in response to a question from an opposition backbencher as to what the word "resolve" meant in relation to asylum seekers, the Home Secretary stated (Hansard, HC Vol 449, col 750):

"It obviously means that in the last instance, having got rid of duplicates and errors, and those who have died or left, as far as can be ascertained, and having moved out of consideration those who are now here legitimately because they are from EU countries, although they may not have been in the first instance, we will come down to those who have been granted leave to remain and those for whom the final decision has been deportation. We will do everything possible to identify and to remove those people. It means exactly what it says. Does it mean...that none of those people will face deportation to a country where it is illegal to deport them, or that they will not face the usual obstacles that we would face with anyone else? No, it does not mean that. We are living in the real world. But it does mean that each and every one of these cases will be attended to within a five-year period, rather than just sitting there, unattended, as has been the case up to now".

[11] Thereafter the Casework Resolution Directorate started work on the "legacy" cases. The reclaimer avers, and it is not disputed by the respondent, that approximately 500,500 files were transferred. Those included the reclaimer's file. The progress of the Casework Resolution Directorate was monitored by various Parliamentary committees, before whom senior officials gave evidence. The petitioner relies on a number of statements given in the course of such evidence. For present purposes it is sufficient to quote from the two items of evidence that are particularly relied on. First, on 4 March 2009, Sir David Normington, the Permanent Secretary at the Home Office, gave evidence to the House of Commons Public Accounts Committee. He was asked by the Chairman:

"[I]t is true that you are making some progress with legacy cases, is it not, but can you give me a specific commitment... that you can meet your own target of concluding all legacy cases by 2011?"

The reply was:

"Yes, I can give you an absolute commitment that that is what we will do. The reason for that is we are currently concluding cases at about 10,000 a month, which is what we have to do to hit the target. At the end of last year we concluded 155,000 of these cases, so we are on track. In fact, the Home Secretary, because the performance is right on track, has said can we try and conclude them faster than 2011".

Secondly, on 20 July 2010 the Director General of the Immigration and Nationality Directorate, Lin Homer, gave evidence to the Home Affairs Select Committee. In the course of questioning by the Committee, reference is made to "the summer 2011 deadline" for dealing with the legacy cases, and a question as to whether the 2011 deadline could be met. The Chairman asked:

"Just remind us of the deadline. What is the date by which you are supposed to clear the entire backlog? You have a date in mind, do you not?"

The Director General replied:

"Yes. Several Home Secretaries back, John Reid gave a commitment to parliament that we would finish the legacy backlog by the summer of 2011".

She stated that the end of July was the target, and that she remained confident that the Directorate were on target to meet the deadline. She subsequently stated that she was confident that the Directorate were on target to clear the whole 400,000 to 450,000 cases by 31 July 2011.

Nature of the Parliamentary statements

[12] The reclaimer's central claim is that he had a legitimate expectation based on the Parliamentary and other statements that his application to remain in the United Kingdom would be decided by July 2011, as part of the "legacy", and that the application would be dealt with in accordance with the law and practice that was then in force. The requirements for the existence of a legitimate expectation based on a statement are well established. The expectation must arise out of a statement made by or on behalf of a minister or public body, and that statement must contain a promise that is clear and unambiguous and devoid of any relevant qualification; and such promise must be made to a class including the petitioner. For reasons discussed below (at paragraphs [18]-[20]), we are of opinion that it is also essential that any person who seeks to rely on the promise must have knowledge of the promise. The basic requirements are stated in many cases; recent examples include R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2), [2009] AC 453, at paragraph 60, and Paponette v Attorney-General of Trinidad and Tobago, [2012] AC 1, at paragraphs 28-30. In considering whether a ministerial or other statement satisfies the foregoing test, it is of course essential to consider it in context. It is also clearly established that such statements must be construed objectively: Paponette, at paragraph 30; R (Geraldo) v Home Secretary, [2013] EWHC 2703 (Admin), at paragraph 83.

[13] In our opinion none of the statements made by the Home Secretary or by any official or in the report published in July 2006 comes anywhere near satisfying the test of a promise that is clear, unambiguous and devoid of relevant qualification. We consider that the statements in question are aspirational at best, and that read in context they do not constitute promises that may be relied on as giving rise to legitimate expectations. We reach this conclusion for three principal reasons. First, the statements related to a very large number of individual cases; the number of such cases was not known, but was thought to be in excess of 400,000. In view of the number of cases, there was bound to be some doubt as to what might in fact happen. Secondly, the time frame referred to in the statements is relatively long, five years. It is obvious that over such a period circumstances might change, possibly radically, in a manner that was quite unforeseen at the outset. In the light of the large number of cases, that might call for major changes in policy. Thirdly, the policy in question involved a significant commitment of government resources. Changing circumstances might alter government priorities, and that might require the diversion of resources away from the Casework Resolution Directorate to other areas of activity, either within the Home Office or elsewhere. In the light of these factors, it seems improbable in the extreme that the statements in question could reasonably be construed as promises to deal with the legacy within the fixed period of five years.

[14] Furthermore, the statements relied on by the reclaimer fall in our opinion very clearly within what has been described in a number of cases as the "macro-political field". This expression originates in the opinion of Laws LJ in R v Secretary of State for Education and Employment, ex p Begbie, [2000] 1 WLR 1115, at 1130G-1131D, but the concept is followed in subsequent cases, including Bancoult, supra, at paragraph 63, and Paponette, supra, at paragraph 28. What this expression means is that in some cases where a legitimate expectation is invoked questions of general policy arise, affecting the public at large or a significant section of the public. In such a case it is not appropriate for a court to assume the role of policy maker; that should be left to the appropriate public authority, which will frequently be at the level of national government. Whether a case falls within this category depends upon circumstances, and a spectrum exists between cases that are clearly "macro-political" in nature and others that affect a relatively limited class of persons. In our opinion factors that point in favour of the "macro-political" end of the spectrum include the number of persons affected by a ministerial or official statement, the time frame to which the statement relates, and the budgetary implications that the stated policy may have; these are the three factors referred to in the last paragraph. Yet a further element that will typically be present in the "macro-political" statement is the public importance of the statement, in the sense that the policy described may affect persons other than those directly affected by it, or may affect other areas of government policy. It is most unlikely that a statement made by one minister in one particular context could reasonably be regarded as tying the hands of other ministers in other areas of policy. That makes it inherently unlikely that any "macro-political" statement could ever give rise to legitimate expectations on the part of the individuals affected.

[15] In the present case, the ministerial and official statements dealt with government policy towards a backlog of immigration cases affecting more than 400,000 individuals. Any policy applying on that scale clearly has implications for government policy in areas other than immigration, including most obviously housing, education, employment and social security. In view of the numbers involved, the consequences for those other areas of policy could be significant. All of this tends strongly to suggest that the statements invoked by the reclaimer are "macro-political", and cannot reasonably be construed as giving rise to legitimate expectations on the part of individuals whose cases fall within the "legacy".

[16] We should mention four further factors. First, certain of the statements relied on were made in response to questioning from Members of Parliament, either on the floor of the House of Commons or in Parliamentary Committees. A response to questioning of this nature cannot be construed in the same way as a considered and deliberately composed statement. Secondly, certain of the statements relied on were made by civil servants, following the initial ministerial statements. In a case where important issues of government policy are involved, however, it seems to us that statements by officials must always be read subject to the overarching policy, which is likely to be contained in the ministerial statements or in documents issued with those statements such as the Home Office report published on 25 July 2006 referred to above at paragraph [9]. Thirdly, in relation to that document, it is important to note that the statements relied on by the petitioner form a small part of a much longer document dealing with important aspects of general immigration policy and the structure of significant parts of the Home Office. In view of its scope, the document as a whole is in our view clearly within the field of the "macro-political", and particular statements made within it must be construed in that context. These are aspirational, and cannot reasonably create expectations on the part of individual claimants. Fourthly, counsel for the reclaimer attempted to place reliance on interpretations of the Home Secretary's Parliamentary statements made by the House of Commons Home Affairs Select Committee and by the Independent Chief Inspector of Borders and Immigration. In these, the statements were arguably treated as a promise giving rise to reasonable expectations on the part of claimants. This was particularly true of the statement by the Chief Inspector, who stated in November 2012 that applicants who had been told that their cases would be dealt with by July 2011 had a reasonable expectation that the cases would have been resolved by that date. In our opinion these interpretations of the Parliamentary statements are of little assistance. It is clearly established that any statement that is said to give rise to a legitimate expectation must be construed objectively. Consequently the personal view of the officials, such as the Chief Inspector are merely that; they cannot alter the objective nature of the Home Secretary's statements. On an objective interpretation, the statements on which reliance is placed by the reclaimer cannot amount to a promise

[17] We accordingly hold that the Parliamentary statements relied on by the petitioner are merely aspirational and cannot be the basis of any legitimate expectation. That is in accordance with the view of the Lord Ordinary (at paragraph [29] of his opinion), and also the view of King J in Geraldo, supra. Geraldo was concerned with the "legacy" and the same Parliamentary statements, in general, as the present case; King J held that it was impossible to read the Home Secretary's statements as involving an unambiguous binding commitment to "legacy individuals"; at most the statements were aspirational, declaring an aim to deal with unresolved cases within five years or less but nothing more: paragraph 102.

The relevance of knowledge of the Parliamentary and other statements

[18] What we have said so far is sufficient to dispose of the principal argument in the present reclaiming motion: unless the Parliamentary statements can be construed as containing a promise there is no basis for any case based on a legitimate expectation. Nevertheless, in view of the detailed arguments presented to us, we will deal with certain other aspects of the case. First, in our opinion it is essential that a person who seeks to found on a legitimate expectation arising out of a statement made by government or a public authority should have knowledge of that statement. For a case based on legitimate expectation to exist, it is essential that there should be an expectation based on a statement from government or another public authority: that is to say, the statement must cause the petitioner to look forward to something. The element of causation is critical. If there is no knowledge of the statement that element must logically be absent, and there can be no legitimate expectation. The point is made in Wade and Forsyth, Administrative Law, 10^th edition, page 452:

"[T]o bring... 'no expectation' cases under the rubric 'legitimate expectation that' is to deprive that concept of clear meaning. The phrase 'protection of legitimate expectations' is not an imprecise alternative for securing fairness or avoiding abuse of power. Legitimate expectations bear, it is submitted, on the narrow issue of whether trust has been reposed in the official. Thus if no trust has been reposed, the concept has nothing to add to an inquiry into what fairness requires in the circumstances or whether the power concerned has been abused'.

The foregoing view was approved in England in the Court of Appeal in Home Secretary v Rahman, [2011] EWCA Civ 814; at paragraph 42 Stanley Burnton LJ stated that he shared Professor Forsyth's view "that the concept of legitimate expectation is normally otiose in cases where there has been no representation, by words or conduct, by the public authority in question to the claimant seeking to rely on it".

[19] For the reclaimer it was submitted that it was not necessary to have knowledge of the statement that might give rise to a legitimate expectation. Reliance was placed on R (Rashid) v Home Secretary, [2005] EWCA Civ 744; [2005] Imm AR 608, a case involving an Iraqi Kurd who sought asylum in the United Kingdom in 2001. As a result of failures in the Home Office described by the Court of Appeal (paragraph [13]) as "startling and prolonged", his claim for asylum was not dealt with when it should have been, and when it was in fact dealt with, following the cessation of hostilities in Iraq in June 2003, the previous policy granting asylum was withdrawn. It was held (paragraph [25]) that there was a legitimate expectation in a claimant for asylum that the Home Secretary will apply his policy on asylum to the claim, and that whether the claimant knows of the policy is not relevant. Despite this statement, we are of opinion that what was decided in Rashid was rather that the Home Secretary must apply his or her policy consistently; any serious failure to do so will be an abuse of power. That is the interpretation placed on the decision in Wade and Forsyth, Administrative Law, at page 452, in the passage quoted above. In our opinion Rashid should not be interpreted as going any further than that.

[20] It is not contended on behalf of the reclaimer that he had any knowledge of the various Parliamentary statements that are now founded on. It follows that those statements cannot have induced any expectation in him. For this reason, as well as the lack of any promise, his case based on a legitimate expectation arising from the statements must fail.

Consequences of denial of any legitimate expectation

[21] As noted above, it was submitted on behalf of the Home Secretary that even if there were a breach of a promise to deal with all "legacy" cases by July 2011, that would not in itself be unlawful. We have decided that there was no such promise, and consequently this question is now hypothetical. The argument was that the Home Secretary was faced with a large backlog of cases, all of which had to be worked through. Cases were given priority by the Casework Resolution Directorate according to a specific prioritization policy, with a discretion to deal with exceptional or compassionate cases out of turn; this was vouched by an affidavit from an official of the UKBA, Mr Miles Matthews. According to the affidavit, the Casework Resolution Directorate completed its internal review of all "legacy" asylum cases on 31 March 2011. As to final resolution, the Home Affairs Select Committee had reported that by September 2011 500,500 cases had been reviewed, of which 479,000 had been fully concluded. Of these, 172,000 had been granted leave to remain with a further 3,000 awaiting final security checks, 37,500 had been removed from the United Kingdom, and 268,000 fell into other categories, including those awaiting resolution. The reclaimer's case had been dealt with according to that prioritization policy, but because of the number of cases in the "legacy" it had taken until 14 November 2011 before a decision was made to grant the reclaimer leave to remain. If the reclaimer had been given priority, other cases would have been delayed. Consequently, it was submitted, there was nothing unfair about the reclaimer's treatment; his claim received priority according to a system that sought to achieve fairness among a large number of different claimants. It was clearly desirable that there should be such a system of priority, and that it should be adhered to. Consequently the court should find that any failure to keep the promise was lawful, as there was a sufficient public interest to override that promise.

[22] In our opinion this submission is well founded. It is clear on the authorities that, even where a promise is taken as giving rise to a legitimate expectation and that expectation is not fulfilled, it is necessary to decide whether the frustration of the expectation is so unfair that it amounts to an abuse of power. Thus in R v North and East Devon Health Authority, Ex p Coughlan, [2001] QB 213, Lord Woolf MR stated (at paragraph 57):

"[T]he 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".

That passage was expressly approved in Paponette, supra, at paragraphs 34 and 35. The same general principle is further stated in Bancoult, supra, at paragraph 63. Nevertheless, it is clear from Paponette that it is the public authority, in the present case the Home Secretary, who bears the burden of establishing that any failure or refusal to comply with the announced policy is objectively justified as a proportionate measure in the circumstances: paragraph 38.

[23] In the present case, the objective behind the policy announced in July 2006 was to improve the system of immigration control, with reference in particular to the "legacy". In view of the number of cases involved it is clear that eliminating the "legacy" would be an onerous task, to which considerable resources were devoted. It is obvious, as Mr Matthews' affidavit indicates, that a system of prioritization would be required. It further appears from figures obtained by the Home Affairs Select Committee that substantial numbers of cases were decided late. In view of the difficulties that arose from the "legacy", we cannot say that the system of prioritization was unfair. It gave priority to exceptional and compassionate cases, but there is no material available that would suggest that the reclaimer fell into those categories. Thus the late decision in the reclaimer's case was the result simply of the ordinary operation of the priorities determined by the Casework Resolution Directorate and published by them. Those priorities were challenged in R (FH) v Home Secretary, [2007] EWHC 1571 (Admin), but the challenge was rejected by Collins J. In our opinion that decision was clearly correct; we can discover nothing unreasonable or unfair in either the existence of a policy of prioritization or in the policy that was in fact adopted; indeed, the petitioner did not seek to challenge the fairness of the policy. That means, ultimately, that the late decision affecting the reclaimer was merely the result of a fair policy designed to meet a difficult challenge.

[24] Finally on this issue, we should note that the reclaimer did not make any contact with officials of the Home Office or the UKBA until May 2009, nearly three years after the original Parliamentary statements were made. Until that was done, it is difficult to see how the claim could ever have been progressed. Consequently the reclaimer contributed in part to the delay in deciding his case. In R (Mohammed) v Home Secretary, [2012] EWHC 3091 (Admin), it was held (at paragraph 37) that in assessing delay where that is relevant to discretionary leave to remain, it is total delay that should be taken into account, and not merely delay caused by the fault of the UKBA. It is not necessary for present purposes to decide whether that is correct. In our opinion it is clear that, where an applicant for leave to remain fails to contact the immigration authorities and as a result there is delay in starting to process his claim, it cannot possibly be said that that part of the delay is something that counts in his favour. On the contrary, it indicates a casual attitude towards co-operation with the immigration authorities, and thus counts against the applicant.

The corrective principle

[25] Administrative decisions are normally taken in accordance with the law, practice and policy that is applicable at the time when they are made. The reasons for this rule are very obvious, especially in relation to policy. Policy may be altered at any time, and a change might be rendered largely ineffective if it were still necessary to apply the policy that existed at an earlier date. Nevertheless, the result of the rule is likely to be that inconsistent decisions will be made before and after a change in policy. To the extent that the decision made after the change in policy is discretionary, it may be appropriate to take into account the change in considering how the discretion should be exercised; this appears from the decisions in R (S, H and Q) v Home Secretary, [2009] EWCA Civ 142, at paragraphs 44-50, and R (Belkevich) v Home Secretary, [2013] EWHC 1389 (Admin), at paragraphs 43-44. In the present case, a change in policy occurred in July 2011. It is not claimed that the reclaimer had any legitimate expectation that policy would not change in future; all that is claimed is that there was an expectation that a decision would be reached by a particular date. The change that occurred was driven by considerations of immigration policy, which is clearly a matter of general public interest and importance. This matter was discussed in Geraldo, supra, at paragraph 79, where it was accepted that it did not result from any perception that the "legacy" programme had been completed and was rather driven by an attempt to ensure that cases were decided on their individual merits in accordance with a coherent overall framework which established fairness among different categories of applicant. The policy that was followed after July 2011 is not challenged as being in any way unreasonable or unfair in itself. What is contended is rather that it was unfair not to apply the pre-July 2011 policy, even though the petitioner's case was not resolved until after the change.

[26] For the reasons already stated, we are of opinion that the petitioner had no legitimate expectation that his case would be decided before the change of policy, and for that reason this argument must fail. Even if that were incorrect, however, in a decision made after the change in policy the new policy should be applied, subject only to the consideration that to the extent that the decision is discretionary the existence of the former policy is a factor that may be taken into account. There is, however, no compulsitor to follow the earlier policy. The petitioner's argument is that there was an obligation to do so. That in our opinion is clearly incorrect. Furthermore, as indicated in paragraph [22] above, even if there were a failure to give effect to a legitimate expectation, the critical question is whether that is so unfair as to amount to an abuse of power. In the present case, under the new policy, the petitioner has been granted leave to remain for a period of three years, which is likely to be repeated and then followed by indefinite leave to remain. We find it impossible to say that that is so unfair as to amount to an abuse of power. On that basis there is no ground for judicial review: see Bancoult, supra, at paragraph 63, and R v North and East Devon Health Authority, Ex p Coughlan, supra, at paragraph 57 (quoted at paragraph [22] above).

[27] Furthermore, because the reclaimer's application was ultimately determined in August 2012, after the change in policy in July 2011, it falls to be determined in accordance with the law, practice and policy in force at its date. That is the standard approach to any challenge to an administrative decision, and we consider that it must apply in the present case. The fact that the reclaimer's application was not determined until after July 2011 was the result of the factors described in the last paragraph. Consequently we can see no basis for the petitioner's submission that, although his claim was decided after July 2011, it should be determined in accordance with the policy that applied before then.

Legitimate expectation of indefinite leave to remain based on practice

[28] The reclaimer further argues that he has a legitimate expectation of indefinite leave to remain based on the practice followed by the Home Secretary prior to 20 July 2011. It is a matter of agreement that the Home Secretary's Enforcement Instructions and Guidance given to UKBA officials gave officials guidance as to the "relevant factors" to which they should have regard in making a decision under rule 395C as to whether a person should be removed from the United Kingdom. The length of time for which leave to remain should be granted in the event of a decision not to remove was not prescribed until 20 July 2011. A change effected on that date provided for a maximum period of leave of three years. The reclaimer's discretionary leave to remain was granted in accordance with the latter policy. It appears, however, that the usual but not universal practice prior to July 2011 was to grant indefinite leave to remain if removal was not ordered: see Geraldo, supra, at paragraph 55.

[29] Nevertheless, if any legitimate expectation is to arise from practice, a clear test must be satisfied: "[T]he promise or practice...must constitute a specific undertaking, directed at a particular individual or group, by which the relevant policy's continuance is assured": R (Bhatt Murphy) v The Independent Assessor, [2008] EWCA Civ 755, per Laws LJ at paragraph [43], quoted with approval in R (Davies) v HMRC, [2011] UK SC 47, at paragraph [49]. In the latter case it was further stated:

"The result is that the appellants need evidence that the practice was so unambiguous, so widespread, so well-established and so well-recognized as to carry within it a commitment to a group of taxpayers including themselves of treatment in accordance with it".

When that is applied to immigration, it is clear that any practice must bear all of the features mentioned in such a way as to carry a commitment to a group of potential immigrants. Furthermore, it must be borne in mind that the initial burden lies on the reclaimer of proving the legitimacy of his expectation: see Paponette, supra, at paragraph 37; it is only when that has been done that the onus shifts to the authority to justify the frustration of the legitimate expectation: ibid.

[30] In our opinion the practice relied on by the reclaimer in the present case comes nowhere near satisfying the test for the establishment of a legitimate expectation. The practice followed is spoken to in the affidavit of Mr Matthews, in which he states (paragraph 15) that the period of leave granted in rule 395C cases would "generally" be indefinite leave to remain, but different forms of leave would be granted in other categories of application. In Geraldo, supra, King J accepted (at paragraph 55) evidence that indicated that cases decided by the Casework Resolution Directorate falling under rule 395C were all granted indefinite leave to remain, but that in other cases the Casework Resolution Directorate also granted limited leave, according to individual circumstances. What is clear is that cases were decided according to their individual features. Rule 395C applies on a case-by-case basis, and the question of leave in a particular case was likewise dealt with on a case-by-case basis. In these circumstances, it is quite illegitimate to draw a conclusion in respect of an individual case from general statistical evidence: R (Askaravi) v Home Secretary, [2013] EWHC 2023 (Admin), at paragraph 27, per Hickinbottom J. The existence of a range of results in individual cases indicates that no legitimate expectation can be inferred; there is no practice so unambiguous, so widespread, so well-established and so well-recognized as to carry any commitment to persons such as the petitioner. Thus the petitioner's case based on a legitimate expectation derived from practice is not established.

Alternative remedy

[31] For the Home Secretary it is further submitted that the reclaimer had an alternative remedy, in the form of an appeal to the First-tier Tribunal against the terms of which he was granted leave to remain. Thus he had not exhausted alternative remedies, with the result that judicial review was not available. The petitioner appealed to the First-tier Tribunal against the Home Secretary's decision on 4 November 2011 to refuse his application for leave to remain, the appeal being under section 82(1) of the Nationality, Immigration and Asylum Act 2002. In such proceedings a competent ground of appeal was that the decision appealed against involved the unlawful denial of a legitimate expectation. The Lord Ordinary records (at paragraph [35] of his opinion) that it was common ground that the petitioner could have raised the question of denial of legitimate expectations in his appeal to the First-tier Tribunal. It had been submitted for the petitioner that his prospects of success at that time would have been much poorer because a report dated November 2012 from the Independent Chief Inspector of Borders and Immigration was not available. The Lord Ordinary rejected that contention; the present claim could properly have been advanced before the First-tier Tribunal, and its merits did not depend upon the contents of the Inspector's report.

[32] The petitioner challenges that finding of the Lord Ordinary on the basis that his case would inevitably have failed in the absence of the report by the Chief Inspector of Borders and Immigration. In our opinion this challenge must fail. In the first place, the remedy now sought was available before the First-tier Tribunal, and the strength or otherwise of evidence at the time is irrelevant, unless there is no stateable case whatsoever. Nevertheless, we note that the largest part of the evidence relied on in the present proceedings for judicial review is quite independent of the Chief Inspector's report. In the second place, the Chief Inspector's report was relied on as explaining the meaning of the Parliamentary statements made by the Home Secretary and the transfer of the work of the Casework Resolution Directorate to other parts of UKBA. Neither of these is directly relevant to the lawfulness of the decision to grant limited rather than indefinite leave to remain. Indeed, the meaning of the Home Secretary's statements must be determined objectively, and the Chief Inspector's report was of no assistance in that task. The transfer of the work of the Casework Resolution Directorate was equally unimportant; the petitioner's claim is based on the time when his application was determined, not the section of the UKBA that was responsible for determining it. Consequently, if we had not decided in favour of the Home Secretary on the underlying substance of the petition, we would have held in her favour on this ground.

Delay in raising proceedings

[33] Yet a further argument for the Home Secretary is that the petitioner failed to raise proceedings for one year after the initial refusal of indefinite leave to remain; the decision to refuse indefinite leave was made on 15 November 2011, but proceedings were not raised until 15 November 2012. The court should not intervene unless proceedings to challenge an allegedly unlawful act are brought promptly: R (S, H and Q) v Home Secretary, [2009] EWCA Civ 142, at paragraph 50. It is not clear that this argument was presented to the Lord Ordinary. We do not find it necessary to express a view on it, beyond observing that the Home Secretary's final decision was not made until 30 August 2012, and proceedings were brought within three months thereafter. That might make it difficult to argue that there was undue delay.

Conclusion

[34] For the foregoing reasons we will refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary.