From legitimate expectation to a doctrine of consistency: DM v Home Secretary

Ever since the decision of the Court of Appeal in R (Rashid) v Home Secretary [2005] EWCA Civ 744, the extent to which knowledge of the relevant policy or undertaking is required if a legitimate expectation is to be founded has been unclear. In Rashid, the Court of Appeal appeared to be willing to hold that a legitimate expectation had been established even though the claimant was, at the relevant time, unaware of the policy that he later sought to invoke. May LJ said that “there plainly is a legitimate expectation in a claimant for asylum that the Secretary of State will apply his policy on asylum to the claim” and that “[w]hether the claimant knows of the policy is not in the present context relevant”.  Dyson LJ, meanwhile, thought that the claimant’s ignorance was “immaterial”. However, subsequent cases—including R (A) v Secretary of State for the Home Department [2006] EWHC 526 (Admin) and R (ZK (Afghanistan)) v Secretary of State for the Home Department [2007] EWCA Civ 615—exhibited little enthusiasm for the approach adopted in Rashid.

The notion of someone legitimately expecting that which they did not know about has always been counterintuitive (although the apparent illogicality of such a notion is qualified to an extent by the fact that legitimate expectations are necessarily a legal construct that may diverge from the claimant’s actual expectations). Moreover, the incongruity of acknowledging legitimate expectations in such circumstances was arguably rendered more palatable by broader policy concerns relating to the equal treatment of the well-informed and the less knowledgeable. However, reliance upon the legitimate-expectation doctrine in such circumstances was always something of a sticking-plaster solution, given that the normative engine driving the instinct to protect claimants lacking knowledge is necessarily distinct from that which applies when a genuine expectation is in play.

The ripping off of the sticking plaster, and its replacement with a parallel doctrine of consistent application of policy, was apparent in R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23, albeit that the Supreme Court turned its back on the legitimate expectation doctrine (in that context) in a largely implicit fashion in that case, making only passing reference to it. The issue has now been addressed more directly by the Inner House of the Court of Session in DM v Secretary of State for the Home Department [2014] CSIH 29. In a unanimous judgment, the Court said:

[I]n 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 Rashid case was explained (in an arguably-revisionist way) by saying that although the Court of Appeal recognised a legitimate expectation in that case, the real basis of the decision was that the “Home Secretary must apply his or her policy consistently” and that  “any serious failure to do so will be an abuse of power”.

As a decision of a Scottish court, DM is not directly relevant to the development of English law in this area – but it is certainly of a piece with the direction that English courts appear to be taking. The bifurcation of the law —with the ground now covered by doctrines of legitimate expectation and consistent application of policy—is desirable, for reasons alluded to above. However, there is still some way to go before a mature doctrine of consistency emerges. In particular, it is not yet fully clear what standard of review will apply when determining whether (to adopt the Inner House’s term) a “serious failure” to apply the policy consistently has occurred or when deciding whether (as the Supreme Court put it in Kambadzi) the decision-maker has advanced a “good reason” for departing from the policy.

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