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What to expect when you're not expecting: The Supreme Court clarifies the concept of legitimate expectations

Dervla Simm

Dervla Simm,

London

Emma Preece

16 October 2015
In a recent judgment, the Supreme Court has distinguished the concept of legitimate expectation from an applicant's right for their application to be considered in accordance with a public authority's stated policy.

The case relates to an application for a visa extension, which was rejected due to a failing by the applicant, Mr Mandalia, to submit in full the evidence required under the Immigration Rules. The UK Border Agency's policy allows for applications to be dealt with flexibly where an applicant has failed to provide information and states that applicants should be given the opportunity to submit any missing evidence. The Supreme Court, in Mandalia v Secretary of State for the Home Department, ruled that the refusal to extend Mr Mandalia's visa was unlawful due to the UK Border Agency's failure to comply with its own stated policy when processing the application.

The judgment highlights the distinction between cases in which the concerned individual is aware of a stated policy and expects to be treated in accordance with it – the doctrine of legitimate expectation – and those cases, such as the present case, where the individual is unaware of the policy until after the determination against them is made – and therefore has no "expectation" at all. In the second type of cases, a person can still potentially rely on such a policy because a public authority will normally be required to abide by on its own stated policies and practices.

Lord Wilson, delivering the unanimous judgment, stated that:

"The applicant's right to the determination of his application in accordance with policy is generally taken to flow from a principle, no doubt related to the doctrine of legitimate expectation but free-standing."

He then cited with approval the judgment of Lord Laws in the Nadarajah case in which he articulated this principle as follows:

"Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so. What is the principle behind this proposition? It is not far to seek. It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public"

It is clear from the Supreme Court's judgment that, although related, the requirement on public bodies to act in accordance with their stated policies is distinct from the doctrine of legitimate expectation. Applicants will continue to be protected from the capricious application of policy by public authorities, whether they know about the policy or not, but this is on the basis that good administration requires such policies to be consistently applied and not because there can sensibly be said to be some kind of "imputed" legitimate expectation.

It is also worth noting that the doctrine of legitimate expectation and the principle of consistency are really seeking to address two different issues. The former seeks to ensure that public authorities cannot unfairly renege on their promises; the latter, that decision-makers are not influenced by irrelevant considerations or inappropriate external pressure and that they treat individuals equally well when applying their policies (see the recent blog by Mark Elliot).

It is therefore helpful that the Supreme Court has clarified the basis on which applicants can bring challenges in these sorts of situations. This should make it more straightforward for applicants to challenge bad decision-making without having to stretch legal concepts to breaking point in the process.

Dervla Simm

Dervla Simm,

London

Emma Preece

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