AMANJ KAMAL ANWAR (AP0 AGAINST THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 91
P1417/15
OPINION OF LORD BECKETT
In the petition of
AMANJ KAMAL ANWAR (AP)
Petitioner;
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent:
for
Judicial Review of decisions by the Secretary of State dated 28 July and 30 November 2015 to refuse the petitioner’s application for naturalisation as a British citizen.
Petitioner: Irvine; McGill & Co
Respondent: Webster; Office of the Solicitor to the Advocate General
5 July 2016
Introduction
[1] In this petition for judicial review, the petitioner Amanj Kamal Anwar, a citizen of Iraq, seeks reduction of decisions of the Secretary of State for the Home Department dated 28 July and 30 November 2015 to refuse his application for naturalisation. He also seeks declarator that the policy in pursuit of which those decisions were made, paragraph 9.7(b) of Annex D of Chapter 18 of the Nationality Policy Guidance and Casework Instruction (NPGCI), is unlawful.
The facts
[2] The petitioner entered the United Kingdom on 21 August 2001. He claimed asylum but his claim was refused and by 22 January 2002 he had exhausted all of his rights of appeal. In 2003, statutory support in the form of accommodation and a weekly allowance was withdrawn from the petitioner. He avers that thereafter he was initially reliant on the short‑term support of friends in England. He moved to Glasgow in November 2004 and avers that he was able to obtain support from a friend on a longer‑term basis. He later moved to Edinburgh where he met his now wife, Ms Justyna Latka, whom he married on 18 November 2008. Ms Latka is a national of Poland and was at the time exercising Treaty rights in the United Kingdom. She became a British citizen by naturalisation in October 2014.
[3] On 22 November 2014, the petitioner submitted his own application for naturalisation in terms of section 6(2) of the British Nationality Act 1981(the 1981 Act) as Ms Latka’s spouse and on the basis that he had completed the associated three year qualifying period of lawful residence in the United Kingdom.
[4] The Secretary of State’s policy on the period over which she would assess good character, and how it would be assessed, changed between the date of the submission of the petitioner’s application and the decisions made on it.
[5] On 12 June 2015 the Secretary of State’s official wrote (no 6/2 of process) to the petitioner identifying the policy to him and he was directed to explanatory materials including the relevant section of a government website. It was noted that records suggested that he had been in the UK without leave between 22 January 2002 and 18 November 2008 and that it accordingly appeared to the decision maker that he had not been compliant with immigration laws during that period and may not meet the good character requirement of naturalisation. The petitioner was invited to complete a questionnaire and to return it along with supporting evidence, “in order that we may give further consideration to your application.”
[6] The Secretary of State, having considered the information provided, concluded that she was not satisfied that during the period of 2002 to 2008 the petitioner had been able to maintain himself without access to employment or public funds. His application was refused for reasons set out in a decision letter of 28 July 2015, no 6/4 of process and on reconsideration that decision was maintained for reasons set out in a letter of 30 November 2015, no 6/6 of process.
The petition
[7] There are essentially three grounds of challenge advanced, in paragraphs 20, 21 and 22 of the petition:
- That the respondent adopted a policy which fettered her discretion in considering whether to grant naturalisation.
- That the petitioner had a legitimate expectation that a decision would be reached on the basis of the respondent’s applicable policy at the time of the application which was more favourable to the petitioner’s position than the policy on the basis of which the decision was made.
- That the policy under which the question of “good character” was assessed over a period of ten years was being operated for an extraneous purpose , given that the 1981 Act, as amended, limits consideration of breach of immigration laws to three years.
[8] In support of the argument based on legitimate expectation, the petitioner avers, at paragraph 7, that prior to submitting his application, the petitioner and his wife consulted the various documents accompanying or referred to in his pro‑forma application form, including in particular the “good character” requirement in Annex D in order to establish whether he could satisfy it in light of his having four spent convictions and having for a period in excess of five years, been present in the UK with no lawful basis.
[9] The petitioner avers, at paragraph 13, that “good character” is inherently discretionary.
The decision letters
[10] No 6/4 of process-28 July 2015:
“…One of the requirements for citizenship is that the applicant is of good character. ‘Good character’ is not defined in the British Nationality Act 1981 but the applicant is expected to have shown due regard for the laws of this country. Where an applicant has not been compliant with UK immigration laws in the ten year period prior to the date of an application the application will normally be refused.
This is explained in Booklet AN which accompanies the application form for naturalisation and in the Home Office staff instructions published on our website…
You were here without valid leave in the United Kingdom between 22.01.2002 when appeal rights were exhausted and 18.11.2008 when you married an EEA national. You were not therefore compliant with UK Immigration laws during this period. We wrote to you on date[1] [sic] to ask how you were maintaining yourself in this country during this period and to provide appropriate evidence ie wages sips, benefit letters, evidence of other income.
You have provided documentation stating that you were being supported by your wife and a friend during this time and that you have not been working with permission or in receipt of public funds. We have carefully considered your response but we are not satisfied that you have been compliant with UK Immigration laws in the ten year period prior to the date of your application. In particular we are not satisfied that you have been able to maintain yourself without access to employment or public funds – insufficient evidence has been provided showing support since starting a relationship with your wife or prior to the relationship starting. You cannot therefore satisfy the criteria at Chapter 18, Annex D, Paragraph 9.7b of the Nationality Instructions and your application has been refused.
It is open to you to re-apply for citizenship at any time but an application made before 18.11.2008 is unlikely to succeed. I cannot say in advance of an application what the outcome will be as this will depend on the results of enquiries made at the time to ensure that the requirements are met. …”
No 6/6 of process - 30 November 2015:
[11] Once again, reference was made to the NPGCI with an internet link being provided. It was explained:
“Generally applications are decided by reference to this guidance. Where individual circumstances are not precisely covered by policy guidance and there may be scope for exercising discretion, beyond that which is contained in the staff instructions, then the application will be considered according to its particular merits by reference to agreed precedents, or in especially compelling cases by creating a precedent where this can be justified…”
The initial reasons were reiterated and the following conclusion was expressed:
“…I have reviewed the consideration given to your client’s application and the decision made on it and I am satisfied that the correct procedures were followed and the correct decision was taken to refuse. There are no grounds for reconsideration of the application.
If your client still wishes to become a British citizen a fresh application for naturalisation will need to be made. Any fresh application will be decided on the basis of enquiries carried out at that time.”
The legal background
[12] Section 6(2) of the 1981 Act provides:
“6.— Acquisition by naturalisation.
…
(2) If, on an application for naturalisation as a British citizen made by a person of full age and capacity who on the date of the application is married to a British citizen or is the civil partner of a British citizen, the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen.”
[13] Schedules 3 and 1 of the 1981 Act, so far as relevant, provide:
“3. Subject to paragraph 4, the requirements for naturalisation as a British citizen under section 6(2) are, in the case of any person who applies for it—
(a) that he was in the United Kingdom at the beginning of the period of three years ending with the date of the application, and that the number of days on which he was absent from the United Kingdom in that period does not exceed 270; and
(b) that the number of days on which he was absent from the United Kingdom in the period of twelve months so ending does not exceed 90; and
(c) that on the date of the application he was not subject under the immigration laws to any restriction on the period for which he might remain in the United Kingdom; and
(d) that he was not at any time in the period of three years ending with the date of the application in the United Kingdom in breach of the immigration laws; and
(e) the requirements specified in paragraph 1(1)(b), (c) and (ca)
1. (1) Subject to paragraph 2, the requirements for naturalisation as a British citizen under section 6(1) are, in the case of any person who applies for it—
(a) the requirements specified in sub-paragraph (2) of this paragraph, or the alternative requirement specified in sub-paragraph (3) of this paragraph; and
(b) that he is of good character; and
(c) that he has a sufficient knowledge of the English, Welsh or Scottish Gaelic language; and
(ca) that he has sufficient knowledge about life in the United Kingdom;
…”
[14] Schedule 4 entitles the Secretary of State, if she thinks fit, to treat certain of these criteria as being fulfilled even if they are not in fact fulfilled, with the exception of the requirement for good character.
The NPGCI
[15] When the petitioner made his application, the policy in force was to be found in NPGCI, Chapter 18, Annex D, the good character requirement, at paragraph 9.5, (effective from 9 December 2013) which provided:
“However, the decision maker will not normally refuse an application where the person has a history of evading control themselves, particularly where there is no other evidence to cast doubt on their character.”
It also provided in the introduction at paragraph 1.1 that the purpose of the instruction was to explain how the good character requirement was to be assessed and that it applied to all decisions taken on or after 13 December 2012, with a saving in relation to the policy on spent convictions for applications made on or before 12 December 2012.
[16] The updated NPGCI, which applied in the petitioner’s case, provided in the equivalent section, at paragraph 9.7:
“9.7 Evasion of immigration control
The decision maker will normally refuse an application if within the 10 years preceding the application the person has not been compliant with immigration requirements, including but not limited to having:
a. failed to report
b. failed to comply with any conditions imposed under the Immigration Acts
c. been detected working in the UK without permission.”
It is stated in the introduction, at paragraph 1.1 that the guidance applies to all decisions taken on or after 11 December 2014.
Submissions for the petitioner
[17] Having addressed me on the terms of the 1981 Act and the respondent’s instructions in that regard, counsel drew my attention to “An Inspection of Nationality Casework”, the report of the Independent Chief Inspector of Borders and Immigration, John Vine, presented to Parliament in December 2014, a copy of which was produced at no 6/18 of process. It had led to the new guidance being issued on 14 December 2014. The inspection had found that “Nationality Casework” was not scrutinising applications appropriately and it was viewed as a particular concern that caseworkers were not sufficiently taking account of evidence of character in order to satisfy themselves that the requirements of the 1981 Act were being met. All of this led to British citizenship being granted to applicants with very poor immigration histories. Whilst Mr Vine proposed that an application for naturalisation ought normally to be refused where there was a history of evading immigration control during the qualifying period under the 1981 Act, the revised instructions of 11 December 2014 went much further with the introduction of a ten year period.
Fettering of discretion
[18] The petitioner founded on examples of the terms of a number of decision letters issued in other cases where applications for naturalisation had been refused on the ground of bad character in relation to immigration control in the preceding 10 years (nos 6/11 and 6/12, 6/13 and 6/14, 6/15, 6/20, 6/21, 6/22 and 6/23 of process). The similarity of the language used in those letters, and the recurring suggestion that it was open to the applicant to re‑apply but that success would be unlikely until the relevant ten year period had passed, suggested a course of conduct inferring that discretion was not being exercised under the policy.
[19] R (Venables) v Secretary of State for the Home Department [1998] AC 407 vouched that a person on whom Parliament has conferred a discretionary power, must not fetter his discretion to the extent of precluding a decision maker from departing from a general policy irrespective of the circumstances of the particular case. The decision in R (Guittard) v Secretary of State for Justice [2009] EWHC 2951 (Admin) showed that the use of the word “normally” in a policy did not necessarily demonstrate that discretion was being exercised. In R (Collymore) v Warwickshire County Council [1995] E.L.R. 217, the court found that a policy in relation to educational grants was unlawful where in practice it was implemented far too rigidly.
[20] It was argued that in the light of the decision letters founded on, and in the absence of any evidence being provided by the Secretary of State that any applications have been granted on a discretionary basis in the situation governed by paragraph 9.7(b) of Annex D of the NPGCI, the decisions in the petitioner’s case, and the policy, were unlawful because the policy was applied with undue rigidity. The use of the word “normally” in this instance served to demonstrate a fetter on the Secretary of State’s discretion since the assessment of good character was an inherently discretionary exercise. Even if the court considered that the presence of the word “normally” did suggest underlying discretion, the terms of the decision letters in both the petitioner’s case and the comparators’ suggest that no discretion is exercised.
[21] No justification had been advanced for the selection of the ten year period over which good character would be assessed and this could be contrasted with the rational choice of a threshold of prison sentences of 12 months bearing on applications for leave to remain ‑ R (Mayaya) v Secretary of State for the Home Department [2011] EWHC 3088 (Admin).
Legitimate expectation
[22] In Rowland v Environment Agency [2005] Ch 1 at para 129-135 Lord Mance set out the general principles of legitimate expectation. Good administration requires public authorities to adhere to their promises. The principle of legitimate expectation is flexible and fact‑responsive and all the circumstances must be considered. The petitioner had regard to the previous instructions in making his application and they had led him to expect that it would be granted. He could be taken to be aware that an earlier change of policy on unspent convictions applied prospectively from the date of application and the recommendations in the Vine Report, notwithstanding that they were made subsequently to the submission of the petitioner’s application. The Secretary of State was obliged to fulfil the petitioner’s expectation.
[23] R (On the application of Bibi) v Newham LBC [2002] 1 WLR 237 illustrated that the absence of detriment based on reliance did not exclude it being unfair to thwart a legitimate expectation. In any event, the petitioner had suffered detriment because he had been denied British Citizenship which is a privilege carrying with it real and substantial benefits, some of which were identified by Lord Woolf in R v Secretary of State for the Home Department Ex Parte Fayed, [1998] 1 WLR 764: freedom from immigration control, citizenship of the European Union and the associated rights, the right to vote and to stand for parliament. The petitioner cannot obtain an Iraqi passport or travel documents. He cannot travel outside the UK which is detrimental given his wife’s Polish origins. He had been unable to attend family weddings there.
Extraneous purpose
[24] Whilst there was no statutory limit on the period during which character fell to be assessed, and there may be some cases where it would be legitimate to go back 10 years, the manner in which the policy was being inflexibly operated as demonstrated by the decision letters founded on suggested that the Secretary of State had an extraneous purpose. She had increased the statutory time period selected by Parliament during which individuals must have complied with immigration laws in order to be eligible for naturalisation. The illegitimacy of exercising statutory powers for an extraneous purpose was illustrated in Galloway v Mayor and Commonality of London (1866) LR 1 HL 34 at page 43. Any such change ought to have been made by legislative amendment.
Submissions for the respondent
[25] It should be recognised that the 1981 Act, section 6, authorises the respondent to grant citizenship by naturalisation where the requirements of Schedule 1 are met but it does not require it. It provides a minimum threshold which must be met before the Secretary of State can exercise her discretion as to whether to grant naturalisation. That discretion is recognised and preserved by the terms of section 6(2).
[26] It should be noted that whilst certain time limits are specified in Schedule 1, they do not apply to the assessment of good character and had Parliament intended to qualify good character in time, it could have done so. Accordingly the issue of good character remains in the broad discretion of the Secretary of State.
Fettering discretion
[27] A plain reading of the current policy found in paragraph 9.7 reveals that it affords discretion to the decision maker in a particular case. The use of the word “normally” demonstrates that the policy is not mandatory, it is discretionary.
[28] It was important to note that it was not challenged in this petition that the Secretary of State had been entitled to conclude that the petitioner has not been compliant with UK immigration laws or that she erred in the process of so concluding.
[29] With reference to British Oxygen Co v Board of Trade [1971] AC 610, it should be understood that where a minister is given discretion, he or she is entitled to formulate a policy which will generally be followed, so long as individual circumstances can be taken account of and the decision maker must not “shut his hears to an application,” particularly if an applicant has something new to say.
[30] In response to the petitioner’s arguments based on Venables, it should be noted that that was a very different case and it cannot be said in the present case that the policy on its face demonstrates a closed mind or admits of only one answer. The letter of 12 June 2015 (see paragraph 4) which invited the petitioner to submit further information, rather tended to show that the decision maker was keeping an open mind as to whether the petitioner could be excepted from the general policy. The petitioner submitted information which was considered by the Secretary of State and a view was reached which is not said to have been an unreasonable one. It is not suggested that there was any material error since the petitioner does not identify anything peculiar to his circumstances which would justify a departure from the general policy in his case.
[31] The court should not be persuaded by the production of a small number of letters to draw the inferences invited by the petitioner. The petitioner had failed to identify the factual circumstances of the cases in which those decisions were reached which disabled the court from reaching any view from them.
[32] Collymore could be readily distinguished. There was a blanket policy to refuse all discretionary awards at first instance. In that case the court had a complete picture and was able to conclude that the policy, which was not unlawful of itself, was being unlawfully applied. Guittard, a decision by a single judge, should be seen in the light of its own particular circumstances. In Guittard, parties were agreed that a policy would be unlawful if it admitted of no possible exception. In that case, against a background of a practice invariably being followed, the use of the word “normally” could not be seen to demonstrate that the policy was lawful.
Legitimate expectation
[33] It should be noted that the policy in force when the petitioner made his application, no 6/17 of process, did not provide for the maintenance of prior policy as applicable to applications submitted before the change of policy of 9 December 2013. It applied to all decisions taken on or after that date subject to a saving relating to unspent convictions.
[34] In Hughes v Department of Health and Social Security [1985] 1 AC 610, the court recognised that it is a feature of constitutional government that governments can change policies and that when policies change any reasonable expectations which may have been aroused by previous policies are destroyed and replaced by other reasonable expectations. The court in In Re Findlay [1985] 1 AC 318, in discussing the legitimate expectations of a prisoner seeking parole, observed that all that can be legitimately expected is that the case is examined individually in the light of the Secretary of State’s policy, providing that it was a lawful exercise of the discretion afforded by statute.
[35] The change of policy relevant in the petitioner’s case was publicised and publicly available. The petitioner had no legitimate expectation other than that the Secretary of State would determine his application in the light of whatever lawful policy she chooses to have at the point of decision. Lord Bingham’s observations in EB (Kosovo) v Secretary of State for the Home Department [2009] 1 AC 1159, at paragraph 13, tended to reinforce this point. Over a period of time the facts, and with them, Government policy may change and the duty of the decision‑maker is to have regard to the facts, and any policy in force, when the decision is made.
[36] In any event, ordinarily there is some detriment to the individual who seeks to rely on legitimate expectation. In the discussion of R (Zeqiri) v Secretary of State for the Home Department [2001] EWCA Civ 342 at para 32 of Bibi, it could be seen that there were very particular circumstances. In R v Jockey Club, ex parte RAM Racecourses 1993 All ER 225, it was observed that a petitioner seeking to prove a case of legitimate expectation would have to show, amongst others, that there was a clear and unambiguous representation made by the public body concerned. The NPGCI of 9 December 2013 provided the petitioner with no grounds for thinking that his application would be determined on any basis other than the policy then applicable.
[37] The petitioner had in this case not demonstrated reliance let alone detriment. He was not suggesting that he had done anything such that it would now be unfair to apply the new policy to him.
[38] All that could be taken from Fayed was that someone in the petitioner’s position must be given the opportunity to be heard and he plainly had been in this case, as was demonstrated in the letter of 12 June 2015.
[39] The petitioner had failed to identify a legitimate expectation that his application would be determined on the policy in force at the time of his application.
Extraneous purpose
[40] The terms of the 1981 Act left the assessment of good character exclusively to the Secretary of State. The 1981 Act simply introduced a minimum threshold which an applicant for naturalisation must meet and thereafter it was for the Secretary of State to determine the period of time over which character might be assessed. An applicant could persuade the Secretary of State not to apply that period in particular circumstances.
Reasons and decision
Fettering discretion
[41] The language used in section 6(2) of the 1981 Act which included, “…he may, if he thinks fit...,”makes it plain that the Secretary of State retains a discretion whether to grant naturalisation, even where the qualifying periods in the schedule are met. It was accepted by the petitioner that the assessment of good character is an essentially discretionary exercise.
[42] In Venables, at page 497A-B, Lord Browne Wilkinson accepted that a person to whom Parliament has given a discretionary power is not precluded from:
“…developing and applying a policy as to the approach which he will adopt in the generality of cases: see Rex v. Port of London Authority, Ex parte Kynoch Ltd. [1919] 1 K.B. 176; British Oxygen Co. Ltd. v. Board of Trade [1971] A.C. 610. But the position is different if the policy adopted is such as to preclude the person on whom the power is conferred from departing from the policy or from taking into account circumstances which are relevant to the particular case in relation to which the discretion is being exercised. If such an inflexible and invariable policy is adopted, both the policy and the decisions taken pursuant to it will be unlawful: ...”
[43] Given the number of cases which are likely to fall to be determined and in order to consistently apply the Secretary of State’s policies it is perfectly reasonable that guidance instructions are given. The Secretary of State is entitled to develop such policies (British Oxygen at page 625, Venables) so long as she is “…always willing to listen to anyone with something new to say” (British Oxygen). In Mayaya Mr Justice Cranston had this to say:
“…At its highest the no-fettering principle means that a person must know what the relevant policy of a public authority entails and must be able to make submissions about its application in their individual case. The public authority must then consider that case on its merits…”
Mayaya contains an example of a policy which was held to be too rigid, where a 10 year qualification period always applied and where the applicant’s circumstances were simply not considered.
“…the policy … states that those who are excluded from humanitarian protection, but granted discretionary leave do not become eligible for settlement until they have completed ten continuous years of discretionary leave”.
[44] In Guitard, the policy in question stated:
“Indeterminate sentenced prisoners will normally only be transferred from closed to open conditions when a positive Parole Board recommendation has been accepted by the respective Case Managers in the PPCS on behalf of the Secretary of State.”
Despite the presence of the word “normally,” the court concluded that no decision was made in response to the applicant prisoner’s solicitor’s letter. No reasons were given for his not being transferred to open conditions as he had requested as a preliminary to being ready for release on parole. There was evidence that staff at the prison concerned were under the impression that the applicant could not be transferred unless the Parole Board so directed. The court concluded that there was no evidence that anyone had reviewed the applicant’s file to consider whether he might fall outwith the general policy.
[45] The evidence led from the respondent did not clarify whether there was a discretion to transfer without reference to the Parole Board in exceptional circumstances or whether there was any process for the exercise of discretion or even whether it was possible that discretion had in fact been exercised in any case ever. Judge Stewart concluded from these considerations and statements reported to have been made by counsel for the Secretary of State in another case that:
“It follows that, notwithstanding the use of the word “normally”, it appears to have been the “invariable” practice of the Secretary of State to request advice from the Parole Board in life prisoner transfer cases.”
[46] That was the context in which Judge Stewart found that the use of the word “normally” was insufficient to demonstrate that the policy did not exclude consideration of possible exceptions.
[47] Collymore was concerned with the discretionary disbursement of educational grants to students. Given financial stringencies, the local authority’s education committee recommended that there should be no provision for new discretionary awards in 1991/92 but, on advice, this was amended so that an award would only be amended if there were extraordinary circumstances. Provision was in place for review of decisions and appeals. The process which had been followed by the authority had been to refuse each application, and then to invite an appeal in any cases where exceptional circumstances to justify an award were advanced. It was established that over three financial years there had been 300 review applications, none of which were successful apart from two in the first year which honoured existing commitments.
[48] The essence of Lord Judge’s reasoning is expressed in the following passage:
“When exercising the statutory power … , the authority is entitled to operate a general policy which will ordinarily govern its approach to applications for discretionary awards. However, despite the general policy, the individual circumstances of each case require consideration before the general policy is applied to it. Although the general policy may severely restrict the number of cases in which discretionary awards may be made it cannot be applied rigidly, without regard to the merits of each individual case.”
[49] He endorsed a statement in De Smith’s “Judicial Review of Administrative Action” to the effect that:
“A course of conduct involving the consistent rejection of applications belonging to a particular class may justify an inference that competent authority has adopted an unavowed rule to refuse all.”
Whilst he did not go so far as to conclude that this was the position, he was satisfied that it had been demonstrated that in practice the policy was implemented with excessive rigidity such that Ms Collymore’s application was not properly considered.
[50] I have no evidential basis for reaching such a conclusion in the petitioner’s case.
[51] It hardly seems surprising that where decisions were made in pursuance of the same policy and associated guidance instructions the language used to explain the decision should be taken from the policy and should recur in different decisions where applications failed on the same criterion. The nine comparator letters produced by the petitioner appear to me to relate to no more than six applicants. Whilst the basis of the assessment of bad character can be identified, there is no information in any of these examples as to which, if any, factors were put forward by the various applicants as justifying a departure from the normal policy. In these circumstances, I am unable to infer from the comparator decision letters and nos 6/4 and 6/6 of process that the Secretary of State operated a rigid and inflexible policy such that individual circumstances were not heard or considered.
[52] As counsel for the Secretary of State submitted, the manner in which the decision maker explained the likely effect of the policy whilst inviting the petitioner to answer a questionnaire and to provide supporting evidence in advance of further consideration suggests that there was a willingness to listen to what he had to say about his own circumstances.
Legitimate expectation
[53] Lord Scarman, in his speech in the prisons/parole case of In re Findlay, at page 338D‑F, stated:
“It is said that the refusal to except them from the new policy was an unlawful act on the part of the Secretary of State in that his decision frustrated their expectation. But what was their legitimate expectation? Given the substance and purpose of the legislative provisions governing parole, the most that a convicted prisoner can legitimately expect is that his case will be examined individually in the light of whatever policy the Secretary of State sees fit to adopt provided always that the adopted policy is a lawful exercise of the discretion conferred upon him by the statute. Any other view would entail the conclusion that the unfettered discretion conferred by the statute upon the minister can in some cases be restricted so as to hamper, or even to prevent, changes of policy. Bearing in mind the complexity of the issues which the Secretary of State has to consider and the importance of the public interest in the administration of parole I cannot think that Parliament intended the discretion to be restricted in this way.”
Lord Diplock made observations to similar effect in Hughes, at page 788 A‑C, which was concerned with the age of retirement for civil servants:
“Administrative policies may change with changing circumstances, including changes in the political complexion of governments. The liberty to make such changes is something that is inherent in our constitutional form of government. When a change in administrative policy takes place and is communicated in a departmental circular to, among others, those employees in the category whose age at which they would be compulsorily retired was stated in a previous circular to be a higher age than 60 years, any reasonable expectations that may have been aroused in them by any previous circular are destroyed and are replaced by such other reasonable expectations as to the earliest date at which they can be compelled to retire if the administrative policy announced in the new circular is applied to them.”
[54] In EB (Kosovo), at paragraph 13, Lord Bingham, albeit that he was not, in terms, discussing legitimate expectation, accepted a submission to the effect that:
“…there is no specified period within which, or at which, an immigration decision must be made; the facts, and with them government policy, may change over a period, as they did here; and the duty of the decision-maker is to have regard to the facts, and any policy in force, when the decision is made…”
[55] I found the petitioner’s arguments unconvincing and somewhat contrived. The policy under which he presented his application made it plain that it would be, subject to one saving, applied to all decisions made thereafter. He may have hoped or even expected that it would be applied in his case, but that is not the same as demonstrating that he had a justiciable legitimate expectation. The cases on which the Secretary of State founded support counsel’s contention that the petitioner’s only legitimate expectation was that his particular circumstances would be examined in the light of the applicable policy. The policy was specifically drawn to his attention before the decision was made and he was invited to provide further information in the letter of 12 June 2015.
[56] In Bibi, a local authority had actually promised to provide permanent housing to a small group of people. I would observe that it is not obvious that the petitioner’s inability, at this time following a general change of policy affecting a very wide constituency, to attain the real benefits and practical advantages which British nationality would afford him is the kind of detriment which has in certain circumstances formed part of the justification for a reconsideration being ordered.
Ultra vires/extraneous purpose
[57] In Galloway, the court accepted that where Parliament had authorised compulsory purchase for a particular purpose, the persons so authorised could not exercise those powers for a different purpose. That is a somewhat different situation.
[58] Counsel for the petitioner accepted that there was no statutory limit on the period over which the Secretary of State might assess good character but maintained that she had demonstrated an unlawful rigidity in the application of the policy. For the reasons I have given, I am not persuaded of that.
[59] I agree with counsel for the Secretary of State that the provisions in the schedules provide a minimum threshold for eligibility, subject to discretion to depart from most of the requirements in a particular case. There is no discretion to depart from the requirement for good character, but it was accepted by the petitioner that its assessment was an inherently discretionary exercise. The 1981 Act reserves to the Secretary of State considerable discretion. It has not been demonstrated that the policy adopted by the Secretary of State, which will normally apply, but in relation to which the petitioner was invited to make representations and provide evidence, exceeds the scope of that discretion.
Disposal
[60] I shall therefore repel the pleas in law for the petitioner and sustain the fourth plea in law for the respondent and refuse the petition. I reserve in the meantime the question of expenses.