LAW REPORT 15 May 1997: Home Secretary's decision unfair and must be quashed

Regina v Secretary of State for the Home Department ex parte Khan; Queen's Bench Division Crown Office List (Mr Justice McCullough) 9 May 1997

Where a British Dependent Territories citizen had mistakenly been informed that he was deemed to be a British citizen and that it was open to him to apply for a British passport, the Home Secretary's subsequent decision that he was an illegal entrant, without giving him the opportunity to make representations, could not be upheld.

Mr Justice McCullough allowed the applicant's application for judicial review of the decision of the Home Secretary that he was an illegal entrant.

The applicant was born a citizen of the United Kingdom and Colonies in Pakistan. When the British Nationality Act 1991 came into force he became a British Dependent Territories citizen with no right of abode in the United Kingdom.

He arrived in the United Kingdom in February 1992 and presented his United Kingdom passport, which correctly described his status and stated that he was subject to immigration control. The applicant believed, however, that he was entitled to enter and depart from the United Kingdom as he pleased.

Pending inquiry into his claim to such a right he was granted temporary admission. On 28 May 1992 he received a letter from the Chief Immigration Officer, saying that as he was deemed to be a British citizen it was open to him to apply for a British passport which defined him thus.

In July 1992 the applicant applied for registration as a British citizen. In February 1994 he received a further letter telling him that the information in the previous letter had been incorrect. He did not meet the requirements of section 4(2) of the 1981 Act as he had not been in the United Kingdom for most of the qualifying period of five years prior to the receipt of his application, which had therefore been refused. It was, however, open to him to reapply for registration when he could meet the statutory requirements.

The applicant then applied for a two year Commonwealth holiday visa. In response he received a letter telling him that he was an illegal entrant and that he should make arrangements to return to Pakistan.

Robert de Mello (Elisabeth Davidge, Birmingham) for the applicant; Eleanor Grey (Treasury Solicitor) for the Home Secretary.

Mr Justice McCullough said that it had been submitted for the applicant that the letter of 28 May 1992, though incapable of giving rise to a legitimate expectation that he would be granted British citizenship, gave rise to a legitimate expectation that he would be able to remain the United Kingdom and would not be treated as an illegal entrant without being given the opportunity to make representations.

Further, given the letter of 28 May, the decision to treat him as an illegal entrant was either unfair, in that it was taken without his having first been given the opprtunity to make representations, or Wednesbury unreasonable in that it was so unconscionably harsh that no reasonable Home Secretary could have made it.

It had been submitted for the Home Secretary that the doctrine of legitimate expectation required that a person who had acted on the faith of a representation must demonstrate that he had suffered detriment in consequence.

However, a legitimate expectation had been founded in the absence of detriment: see R v Secretary of State for the Home Department, ex p Ruddock [1987] 1 WLR 1482, and R v Secretary of State for the Home Department, ex p Khan [1984] 1 WLR 1337.

The doctrine of legitimate expectation was founded in fairness, and there were observations in the authorities which stressed that fairness required that an authority, before departing from a previously announced statement of policy, should afford a hearing to those affected. If fairness demanded that when public pronouncements were made, why should it demand less when the statement was made to the only individual affected by it? Whether one regarded what had happened as a breach of fairness, or as the denial of a legitimate expectation, or as a decision taken beyond the bounds of reasonableness, it was a decision which should be quashed.

When the matter was reconsidered it was to be hoped that the Home Secretary might find it possible to allow the applicant to remain for such longer period as might be necessary to bring him within the requirements of section 4 of the British Nationality Act 1981.