Mandalia v Home Secretary [2015] UKSC 59: Legitimate expectations and the consistent application of policy

The Supreme Court gave judgment today in Mandalia v Secretary of State for the Home Department [2015] UKSC 59. The question for the Court was whether the UK Border Agency had acted lawfully by refusing the appellant’s visa-extension application without first allowing him to submit certain information concerning his application. According to the Agency’s own policy, the applicant ought to have been permitted to submit such information. The Court allowed the appellant’s appeal, holding that the Agency’s failure to extend to him the benefit of its own policy made its decision unlawful.

This conclusion seems instinctively fair, as does the self-evident proposition — that government bodies should play by their own rules — which no doubt informs that instinctive view of the matter. However, administrative law is, or ought to be, about more than simply the imposition of a gut-instinct judicial sense of fairness. It is necessary, therefore, for the courts to be clear about the doctrinal basis upon which the fair treatment of individuals is to be secured. In relation to situations such as those that arose in Mandalia, however, the courts have not always succeeded in doing this. In particular, there has sometimes been a failure to disaggregate the requirement (other things being equal) to fulfil individuals’ legitimate expectations and a (putative) overlapping-but-distinct requirement to treat individuals consistently with official policies. Where the individual knows of the policy and derives a legitimate expectation from it, this is a distinction without a difference. But where the individual — as in the present case — does not know of the policy, the distinction presents itself in a more obviously relevant form.

In the past, courts have sometimes fallen back on the argument that because legitimate expectations are legal constructs, the content of the category of legitimate expectations may be less — or more — extensive than the scope of the individual’s actual expectation. After all, an individual may subjectively expect something but it may not be reasonable — or legitimate — for her to expect it. It has been argued that this can cut the other way, such that, in order to avoid subjecting less-well-informed individuals to disadvantageous treatment, they should have imputed to them a legitimate expectation that a given policy will be applied to them notwithstanding that they knew nothing of the policy at the relevant time.

There are, however, two difficulties with this approach. First, it is obviously strained, being built upon a form of legal fiction which requires us to deem the person to have expected something that she did not. This is not necessarily a knock-out argument against such an approach — legal fictions have their place — but it does render it dubious. Second, and more compellingly, running together the protection of legitimate expectations and a requirement to adhere to policy obscures the distinct (albeit not entirely unrelated) normative bases upon which these administrative-law requirements are based. Criticising a case — R (Rashid) v Secretary of State for the Home Department — which overlooked this distinction, I have previously argued that:

it is clear that at the heart of cases like Rashid, concerning the ‘expectations’ of persons with no actual knowledge of the relevant policy, lies the principle of consistency: the idea that administrative bodies should not arbitrarily decline to apply the same, self-proclaimed norms to all relevant cases that come before them so long as the policy remains in force. The normative roots of such a principle are not hard to identify. The dignity and equality of individuals demands that established policies be applied to them equally advantageously in the absence of objective reasons justifying differential treatment: [as Dotan has argued,] policy operates ‘as a sort of Rawlsian veil of ignornance’, and requiring the decision-maker to operate consistently with it helps to ‘prevent the possibility that she will yield to political temptation or pressure, or any other irrelevant consideration which threatens to abuse power’. These concerns are distinct from those underpinning the protection of legitimate expectations, and it is desirable that they be openly articulated and transparently reflected at a doctrinal level.

Against this background, today’s Supreme Court judgment in Mandalia is to be welcomed. Giving the sole judgment, Lord Wilson said:

Invocation of the doctrine is strained in circumstances in which those who invoke it were, like Mr Mandalia, unaware of the policy until after the determination adverse to them was made; and also strained in circumstances in which reliance is placed on guidance issued by one public body to another, for example by the Department of the Environment to local planning authorities.

Lord Wilson went on to say that “the applicant’s right to the determination of his application in accordance with policy is now generally taken to flow from a principle” that while “related to the doctrine of legitimate expectation” is nevertheless “free-standing”. He then endorsed the following passage from Laws LJ’s judgment in R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363:

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.

As Lord Wilson’s reference to Nadarajah indicates, the approach endorsed in Mandalia is not an entirely novel one. Nor is it the first time that the Supreme Court has expressed sympathy with this approach (see, e.g., R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12). Nevertheless, Mandalia represents the clearest acknowledgement so far at Supreme Court level that it is necessary to disaggregate legitimate-expectation and consistent-application-of-policy cases — a judicial stance that is to be welcomed for reasons I have explored in greater length here.