R v Secretary of State for the Home Department, ex p. Khan

Facts

Khan, who lived in the United Kingdom, wished to bring his nephew, a child in Pakistan, to join him with a view to adopting him. The Home Office had issued a circular letter setting out the conditions on which it would admit a child for adoption. Khan believed that he met those conditions. The Home Office refused entry clearance for the child, relying on a consideration that did not appear in the circular, and did not tell Khan beforehand of the concern or invite his comments.

History

Khan's application for judicial review was refused at first instance. The Court of Appeal allowed his appeal.

Issue

Whether the Home Secretary, having published a circular stating the policy on which a child would be admitted for adoption, could refuse admission on a ground outside the circular without giving the applicant an opportunity to comment; and whether the applicant had a legitimate expectation that the stated policy would be followed.

Held

Appeal allowed. The Home Secretary was entitled to change the policy, but he could not apply a different policy to this applicant without first giving him an opportunity to make representations; the application had not been considered according to the published policy, and the refusal was unfair and was quashed.

Ratio

• A public authority that states the policy on which it will exercise a discretion, and an applicant who acts on that statement, create a legitimate expectation that the policy will be followed, and the authority may depart from it only if it first gives the applicant a fair opportunity to make representations or has an overriding reason.
• The expectation is protected through fairness: a decision that disregards the stated policy, without notice and without hearing the applicant, is unfair and open to review.

The judgments

Key reasoning

• A person who has been told the basis on which an application will be decided has a reasonable expectation that it will be so decided, and fairness requires that a departure be justified and that the person be heard.
• Policy statements by the executive in the immigration field are not immune from review simply because they are not legislation or binding; they give rise to expectations which the courts will protect where it is fair to do so.
• The complaint was not that the Home Office could not change its policy but that it applied other considerations to a person who had relied on the published criteria without giving him notice.

Where it fits in the module

On the Procedural protection for legitimate expectations topic, Khan sits beside Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629, Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 and R v Secretary of State for the Home Department, ex p Hargreaves [1997] 1 WLR 906. It is used to show how a promise or published practice leads to a right to be heard before departure. Candidates should be able to say whether a legitimate expectation is a free-standing ground or a facet of fairness, whether it can protect the substance of a policy as well as the procedure, and how R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61 and R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363 treat it.

Criticisms

• Basing protection on a policy circular treats guidance addressed to officials as if it were a promise to the public, which discourages ministers from publishing policy and can freeze flexible practice.
• The decision protects only a hearing, not the substance of the policy, so a person who relied on the circular can be refused after being heard, and the benefit of the expectation is left uncertain.
• The court gave little guidance on what counts as an overriding public interest justifying a departure without a hearing, and so left the balance between individual fairness and the need to control immigration unclear.
• The approach rests on the idea of fairness without any clear account of whose reliance is protected, so different cases have reached inconsistent answers on whether detrimental reliance is required.