Chapter 12: JR - 4 grounds for JR

Question 1

What was the case and the authority that introduced the 4 grounds of JR?

What do each of the grounds mean?

Answer 1

GCHQ case held that it was irrespective of whether a power exercised directly under the prerogative was immune from JR, delegated powers from prerogative power were not necessarily similarly immune

• Lord Diplock stated that there are 4 grounds for judicial review -

1) Proportionality (might be used sometimes)

• “I have in mind particularly the possible adoption in the future of the principle of ‘proportionality’ which is recognised in the administrative law of several of our fellow members of the European Community…”

2) Irrationality / ‘Wednesbury’ unreasonableness

• “By ‘irrationality’, I mean ‘Wednesbury’ unreasonableness. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”

3) Illegality

• “By ‘illegality’, I mean that the decision-maker must understand correctly the law that regulates his decision making power and give effect to it…”

4) Procedural impropriety

• “‘procedural impropriety’… judicial review under this head also covers (in addition to the requirements of natural justice) failure by an administrative tribunal to observe the procedural rules expressly lay down in the legislative instrument by which its jurisdiction is conferred.

Question 2

What is the doctrine of ‘proportionality’?

Answer 2

Introduction

• The view that JR cases are declined to examine the merits of a decision, if it had been through correct procedures. And provided the decision-maker had taken account of all relevant factors and decided rationally
• This is known as the ‘Wednesbury test of irrationality or unreasonableness’ (laid down in Associated provincial Picture Houses v Wednesbury Corporation [1948])

Today

• The new approach of evaluating proportionality has replaced the test of reasonableness
• This is because HRA 1998 was not yet composed when Lord Diplock laid down his principles
• Meaning to say he would not be able to make his principles cater towards the 1998 Act

Question 3

What are the 5 cases for the doctrine of ‘proportionality’?

Answer 3

1. R (Daly) v Secretary of State for Home Department [2001] - beginning precedent/principle
2. De Freitas v permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999]
3. Kingsley v UK [2001]
4. R (Bibi) v Secretary of State for the Home Department [2011] - compare with de Freitas
5. R (Lord Carlile of Berriew and others) v Secretary of State for the Home Department [2014]

Question 4

R (Daly) v Secretary of State for Home Department [2001] - beginning precedent/principle

IMPORTANT

proportionality

Answer 4

Context

• This has made clear the new approach of proportionality is better

Facts

1. Lord Steyn examined the differences between reasonableness and proportionality

Held

• Lord Steyn found that there was overlap with the traditional approach (reasonableness) and the approach of proportionality
• The intensity of review is slightly greater under the proportionality approach

Note

• The doctrine of proportionality requires the courts to asses the balance which the decision maker has struck. Not the range of rational/reasonable decisions
• This test may go further than traditional grounds of review, as to require attention to be directed to the relative weight according to interest and considerations

Takeaway

• Whether the decision maker had balanced the interference with rights against the intended objective

Question 5

De Freitas v permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999]

proportionality

Answer 5

Context

• Lord Steyn cited the case of Daly, an adopted a 3 stage test -

Held

• i) legislative objective is sufficiently important to justify limiting a fundamental right;
• ii) the measures designed to meet the legislative objective are, rationally connected;
• iii) the means used to impair the right or freedom is no more than is necessary to accomplish the objective

Takeaway

• 1) Is the objective so important that it justifies limiting fundamental rights?
• 2) Are the measures connected with the objective so important to be achieved?
• 3) The means must be necessary

Note

• This applies to the Rwanda Act (important enough to deport suspected terrorists)

Question 6

Kingsley v UK [2001]

proportionality

Answer 6

Held

1. ECtHR held that the reviewing court should not confine itself to examining the quality of the decision-making process and not merits
2. After HRA, the courts should not only look at the reasonableness, but also proportionality

Note

• Used the same test in de Freitas case

Question 7

R (on the application of Bibi) v Secretary of State for the Home Department [2011] - compare with de Freitas

change in test

proportionality

Answer 7

Context

• Lord Wilson further amplified the test for proportionality

Facts

1. Husband wants to obtain a spouse visa for his wife
2. But in order to get the visa the wife needed to sit for an English proficiency test
3. Brought under claim for JR, argued why she would need to learn English when she has her husband to which can help her

Held

1. There was a legitimate objective
2. On grounds that learning the language would allow her to assimilate (to be absorbed) herself with society

4 stage test

1. is the legislative objective sufficiently important to justify limiting a fundamental right;
2. are the measures which have been designed to meet it rationally connected to it;
3. are they no more than necessary to accomplish it; and
4. do they strike a fair balance between the rights of the individual and the interests of the community?

Note

• This case enhanced the proportionality test from de Frieta’s case from 3 to 4 stages of tests

Question 8

R (Lord Carlile of Berriew and others) v Secretary of State for the Home Department [2014]

proportionality

Answer 8

Issue

• UKSC considered the concepts of deference and proportionality within the context of Convention rights

Facts

1. COA held if the case is a matter of national security & foreign policy (and provided it is justiciable)
2. Then only look at the 3 (main) grounds for JR - illegality, procedural impropriety, irrationality

Held

1. UKSC disagreed with COA
2. Held that even where national security/foreign policy is involved (and provided it is justiciable), courts must still consider all 4 grounds for JR
3. On grounds that this was an issue of institutional competence and institutional deference. Where UKSC ruled that it was justiciable as the Home Secretary (executive) was better suited/knowledgeable on matters of national security
4. And courts would be incompetent to make a decision on this regard

Takeaway

• Even where the matter involves national security, it is still required to consider all 4 grounds (Illegality, procedural impropriety, irrationality, & proportionality)
• On grounds that the executives have specialised experience, range of source material and institutional competence to decide properly on a matter of foreign policy/national security

Question 9

What is the doctrine of Irrationality / ‘Wednesbury’ Unreasonableness?

important

Answer 9

In GCHQ, Lord Diplock says it is “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”

Question 10

What are the 3 cases that laid down the irrationality / ‘Wednesbury’ Unreasonableness test?

Answer 10

• Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1988]
• Roberts v Hopwood [1925]
• R (Keyu & Others) v Secretary of State for Foreign & Commonwealth Affairs [2015]

Question 11

Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1988]

important

irrationality/ ‘wednesbury’ unreasonableness

Answer 11

Facts

1. Local authority had the power to grant licenses for the opening of cinemas subject to conditions as they ‘thought fit’
2. Granted a Sunday license imposed a condition that no children under 15 should be allowed whether accompanied by an adult or not
3. Applicants argued it was an unreasonable decision and ultra vires

Held

• Court held the decision was so unreasonable no reasonable authority would ever come to have imposed that
• They took into account the welfare of children

Question 12

Roberts v Hopwood [1925]

irrationality / ‘Wednesbury’ unreasonableness

Answer 12

Facts

1. Council (local authority) adopted a policy for increased wages than the national average

Held

• Unreasonable
• As the discretion of the council was limited by law, as it was not free to pursue socialist policy at the expense of ratepayers
• HOL ruled irrespective of words in statute, that they were under a duty to act ‘reasonably’ and discretion was limited by law

Takeaway

• They were limited by the law, weren’t allowed to make their own laws (increase wages)

Question 13

R (Keyu & Others) v Secretary of State for Foreign & Commonwealth Affairs [2015]

important

irrationality / Wednesbury unreasonableness

Answer 13

Facts

1. Apex court (now UKSC) reconsidered the debate but refused to overrule Wednesbury because it was not the right time to do so
2. Further scrutiny is needed first owing to ‘profound and far-reaching’ consequences of such a change

Held

• Courts refused to replace the Wednesbury with proportionality
• On grounds that such a change would require a larger panel of judges

Takeaway

• Death of Wednesbury no longer imminent

Question 14

Should the Wednesbury unreasonableness test replace the proportionality test?

What are the relevant academics and cases that support this view?

Answer 14

1) Academic view - J.Jowell & A. Lester, Beyond Wednesbury: Substantive principles of administrative law (1987) -

• Inadequite
• Test tries to prevent review
• Confusing

2) Supporting cases

• R (Daly) v Secretary of State for Home Department [2001]
• R (Association of British Civil Internees: Far East Region) v Secretary of State for Defence [2003]

3) Textbook authorities

• Andrew Le Seur in Public Law - Text Cases & Materials
• Hilaire Barnett

Question 15

What are the 3 academic view supports the view that Wednesbury unreasonableness tst should not replace proportionality test?

Answer 15

1) J.Jowell & A. Lester, Beyond Wednesbury: Substantive principles of administrative law (1987) -

• Stated there were 3 reasons Wednesbury test is unsatisfactory

1. Inadequate - the word ‘unreasonable’ does not provide sufficient justification for judicial intervention. There needs to be further explanation or justification why the act is unreasonable
2. The test tries to prevent review - it only allows cases where the official behaved absurdly or ‘taken leave of his senses’
3. Confusing - as it allows courts to interfere with decisions that are unreasonable; then goes to say that the decision would be one that no reasonable authority would take

2) Andrew Le Suer in Public Law - Text Cases & Materials

• Wednesbury test has not been buried before the UKSC
• However indications suggest that proportionality will soon be accepted as the general grounds for JR
• Where it is claimed that actions infringing common law rights would be clearly adopt a proportionality approach

3) Hilaire Barnett

• Unreasonableness/irrationality
  1. Connote (suggest) some degree of objectivity which can be applied without an in depth analysis of the case
• Proportionality
  1. More sensitive to the context/facts of the case
  2. Needs to consider the decision reached, or action taken is restricted to what is strictly required to the objective
  3. Which it can’t do without considering both policy and means adopted to achieve it

Question 16

R (Daly) v Secretary of State for Home Department [2001]

IMPORTANT

‘wednesbury’ unreasonableness

Answer 16

Held

• Lord Cooke stated Wednesbury was an aggressive (past its time) decision in English law
• By suggesting there are degrees of unreasonableness and that should be reviewed under very extreme degrees only
• Thus, JR and the administrative discretion vary with the subject matter (facts)

Takeaway

• Wednesbury test only applies to extreme cases, so it tends to not be reviewed

Question 17

R (Association of British Civil Internees: Far East Region) v Secretary of State for Defence [2003]

‘wednesbury’ unreasonableness

Answer 17

Held

1. Suggested that proportionality should replace Wednesbury unreasonableness in cases where court has to consider lawful balance between public and individual interest
2. Lord Slynn says - it’s “unnecessary and confusing” to keep both tests in different compartments. As “The criteria of proportionality are more precise and sophisticated”

Takeaway

• Proportionality should replace unreasonableness even where the case has nothing to do with HRA

Question 18

What is Illegality?

What are the 7 limbs?

Answer 18

Introduction

• Decision-makers need to properly understand their legal duties & powers. To properly carry out their duties, and to exercise power to further aims and policies for their purpose

7 limbs

1. Onerous (unreasonable) conditions attached to decision
2. ‘Errors of law on the face of record’
3. Using powers for the wrong purpose
4. Irrelevant considerations in decision making
5. Failure to take relevant considerations into account
6. Fettering discretion
7. Unauthorised delegation

Question 19

What is Onerous (unreasonable) conditions attached to decision?

What is 1 case that supports this?

1st limb

illegality

Answer 19

Introduction

• Decision by an authority might be unreasonable if conditions attached are difficult or impossible to perform

Case

• R v Hillingdon London Borough Council Ex Parte Royco Homes Ltd. [1974]

Question 20

R v Hillingdon London Borough Council Ex Parte Royco Homes Ltd. [1974]

Onerous (unreasonable) conditions attached to decision

Answer 20

Facts

1. Planning permissions was tied to conditions imposed
2. Conditions were that Royco Homes make properties constructed available for occupation for the Council’s housing waiting list
3. And further for 10 years the houses be occupied by persons subject to security of tenure under the Rent Acts

Held

• Conditions held onerous and ultra vires

Question 21

What is ‘Errors of law on the face of record’?

What is 1 case that supports this?

2nd limb

illegality

Answer 21

Introduction

1. Evidence from documentation that the decision-maker has made a wrong decision in law
2. Which will cause judge to rule decision was ‘(edefective’ even if the decision-maker was acting inside jurisdiction (intra vires) )

Note

• Normally when authority correctly interprets its powers but used them towards a wrong objective

Case

• Anisminic Ltd. v Foreign Compensation Commission [1969]

Question 22

Anisminic v Foreign Compensation Commission [1969]

‘Errors of law on the face of record’

Answer 22

Facts

1. Compensation Commission had the power to distribute a compensation fund to British companies and people suffering loss as a result of property being sequestrated by the Egyptian Government
2. Act stated that compensation was payable if applicants satisfied the test of being the owner or successor to the property
3. Property had been sold to a third party, and Anisminic couldn’t prove an owner nor successor to the property
4. Compensation Board ruled that they had no power to grant compensation to Anisminic

Held

• HOL held actions by Board were ultra vires
• Decision made was so wrong in law that it amounted to no decision at all
• Ouster clause became ineffective, and the Act prohibiting the court from reviewing the case was null and void

Takeaway

• If an ouster clause is outside jurisdiction (can’t be reviewed) would become null and void

Note

• 2 other ouster clause cases - Ex parte Cart v Upper Tribunal [2009]; (Privacy International) [2019]

Question 23

What is Using powers for the wrong purpose?

What is 1 case that supports this?

3rd limb

illegality

Answer 23

Introduction

• Powers conferred must be used for the purpose which it was granted

Case

• R v Secretary of State for foreign and Commonwealth Affairs Ex Parte the World Development Movement [1994]

Question 24

R v Secretary of State for foreign and Commonwealth Affairs Ex Parte the World Development Movement [1994]

Using powers for the wrong purpose

Answer 24

Facts

1. In 1988, UK government signed an agreement with Malaysian PM, Mahathir Mohadmed, for sale of arms valued at £1.3 billion
2. In 1989, UK offered £234 million for the building of the Pergau dam
3. In 1991, John Major continued the deal despite warnings from officials that the project was uneconomical and a waste of public funds
4. Money from Overseas Development Administration budget
5. Under international law, any relation with aid monies and arms sales were prohibited
6. Legal proceedings instituted by World Development Movement as a misuse of funds

Held

• High Court held Foreign Secretary acted unlawfully
• On grounds that the project was ‘economically unsound’ and because the aid did not promote development of a country’s economy required by law

Question 25

What is **Irrelevant considerations in decision making**? What are 2 cases for this? | 4th limb ## Footnote illegality

Answer 25

Introduction * Decision was made for a **wrong purpose** (i.e. cancelled a public event because, the authority did not like the person, rather than the cause of the event) Case 1. **R v Somerset County Council Ex Parte Fewings [1995]** 2. **Wheeler v Leicester County Council [1985]**

Question 26

**R v Somerset County Council Ex Parte Fewings [1995]** ## Footnote Irrelevant considerations in decision making

Answer 26

Facts 1. Local authority decided to ban stag-hunting on land owned by the council and designated for recreational purposes 2. Motivation behind ban was the moral objection of the councillors to hunting Held * Council’s mind was **not directed to the relevant statutory provisions** * They **didn’t consider** what they were required to do

Question 27

**Wheeler v Leicester County Council [1985]** ## Footnote Irrelevant considerations in decision making

Answer 27

Issue * HOL examined concepts of unreasonableness and of fairness And the interaction between bad faith, reasonableness and procedural impropriety Facts 1. 1984, the Rugby Football Union announced a tour of South Africa, with a team including 3 members the Leicester Football Club 2. Government was opposed to any sports links with South Africa 3. And Leicester County Council was opposed to the proposed tour 4. Club argued they were not constrained from playing in South Africa as a result of government opposition 5. Which didn’t make the tours illegal nor had proposed any sanction for those who visited South Africa 6. Council suspended from using the playing field for a 12-month period Held * HOL held Council **acted unreasonably** in the **Wednesbury** sense and had been a **fundamental breach of duty to act fairly** * Further added the Council had misused statutory power * On grounds that, council could not use **statutory powers of management** and other **statutory powers** for the purpose of punishing the club, when they **did nothing wrong** Takeaway * The entire reason for the suspension went **beyond statutory powers** * And the decision was **irrelevant** to the purpose of statute

Question 28

What is **Failure to take relevant considerations into account**? What case supports this? | 5th limb ## Footnote illegality

Answer 28

Introduction * When an authority **fails** to take into account **relevant considerations** / takes into account irrelevant considerations, which **materially affect** the decision reached (my be held ultra vires) Case * **Bromley London Borough Council v Greater London Council [1983]**

Question 29

**Bromley London Borough Council v Greater London Council [1983]** ## Footnote Failure to take relevant considerations into account

Answer 29

Facts 1. Greater London Council (public transport) wished to increase passenger numbers to reduce traffic congestion 2. They did this by seeking a higher level of subsidy for London Transport by increasing the rates payable by ratepayers in London Held * **Ultra vires** and used its power for the wrong purpose * On grounds that they had to act of the **interest of all constituents** (public area leaders), and not only constituents that used London Transport Takeaway * The public authority had to take into account everybodies interests

Question 30

What is a **fettering discretion**? What is the case for this? | 6th limb ## Footnote illegality

Answer 30

Introduction * If an authority adopts a policy, when exercising its powers - it means that it is not exercising discretion at all * Adhered to a **rigid policy** - if such an inflexible and invariable policy is adopted * The policy & the decision is regarded as unlawful Case * **Lavender v Minister of Housing and Local Government [1970]**

Question 31

**Lavender v Minister of Housing and Local Government [1970]** ## Footnote fettering discretion

Answer 31

Facts 1. Applicant planned permission to extract sand and gravel from high grade agricultural land 2. Local authority refused 3. Appealed to Minister of Housing and Local Government Held 1. Decision was **set aside** 2. Minister entitled to have a policy but, the Minister’s decision had been **based solely on another Minister’s objection** 3. Minister didn’t open his mind to the application Takeaway * Decision is set aside if **policy** is adopted too rigidly

Question 32

What is **unauthorised delegation**? What is 1 case that supports this? | 7th limb ## Footnote illegality

Answer 32

Introduction * Powers come from statute, general rule is that they **can’t delegate powers** unless delegation is authorised by law * However, if the statute confers power onto a **minister**, then it is exercisable by the personnel **on his behalf** Case * **Local Government Board v Arlidge [1915]**

Question 33

**Local Government Board v Arlidge [1915]** ## Footnote unauthorised delegation

Answer 33

Facts 1. It was stated that “a minister cannot do everything himself.” Held * Court held that while a minister could lawfully delegate his power to his subordinate, he remained **constitutionally & personally accountable** to parliament for his conduct

Question 34

What are the 3 parts to **procerual improriety/fairness**?

Answer 34

1. Under statute 2. Breach of natural justice - 2 elements 3. Duty to act 'faily' and the concept of legitimate exception

Question 35

What is procdeural improriety under statute? What are the 2 cases?

Answer 35

Introduction * Fairly to comply with procedures will **invalidate** a decision * They distinguish between procedural requirements (mandatory) by the breach which renders a decision **void** & those which are directory which may not invalidate the decision Case * **Bradbury v Enfield London Borough Council [1967]** * **R (Smith) v North Eastern Derbyshire Primary Care Trust [2006]**

Question 36

**Bradbury v Enfield London Borough Council [1967]** ## Footnote procedural propriety under statute

Answer 36

Facts 1. **The Education Act 1944** provided if local authority intends to establish new schools or cease maintaining existing schools - a **notice** must be given to the Minister 2. After which must be given a public noticed to allow interested parties to comment 3. Council **breached** requirement of public notice Held * Lord denning held that Council breached with procedural requirement of notice

Question 37

**R (Smith) v North Eastern Derbyshire Primary Care Trust [2006]** ## Footnote procedural impropriety under state

Answer 37

Facts 1. A decision was made without consulting a requirement by statute Held * COA quashed the decision * If there were proper consultation a decision would have been different * **Unlawful**

Question 38

What is breach of natural justice? What are the 2 elements and the relevant cases? ## Footnote procedural impropriety

Answer 38

Introduction * Rules of nature are common law rules. Fundamental dictate of justice is that decision makers should act fairly 1) The rule against bias - *nemo judex in causa sua* * **R v Sussex Justices Ex Parte McCarthy [1924]** * **R v Bow Street Metropolitan and Stipendiary Magistrate Ex Parte Pinochet Ugarte [1999]** * **Locabail v Waldorf Investment Corp [2000]** 2) Right to a fair hearing - *audi alteram partem* * **R (Imam) v London Borough of Croydon [2022]**

Question 39

what is The rule against bias - ***nemo judex in causa sua***? What are the 2 relevant cases? ## Footnote procedural impropriety - breach of natural justice

Answer 39

* Not necessary to show bias exist, even **appearance** or **possibility** of bias will suffice * Test if there is a real **likelihood/possibility** of biasedness by the justice or member of tribunal - R v Gough [1993] * “Justice should **not only be done** but should manifestly and undoubtedly be **seen to be done**.” - R v Sussex Justices Ex Parte McCarthy [1924]

Question 40

**R v Sussex Justices Ex Parte McCarthy [1924]** | 1st element ## Footnote nemo judex in causua sua

Answer 40

Facts 1. Applicant charged with dangerous and convicted 2. Later discovered that the Clerk to the Magistrates’ Court was a solicitor who had represented the person suing McCarthy for damages 3. Applied for JR on grounds that threw as bias by Clerk Held * McCargy’s conviction was quashed due to **possible biases**

Question 41

**R v Bow Street Metropolitan and Stipendiary Magistrate Ex Parte Pinochet Ugarte [1999]** | 1st element ## Footnote nemo judes in causa sua

Answer 41

Facts 1. Proceedings of the former Chilean head of State was challenged by JR 2. On grounds that one of the Lords, Lord Hoffman, had links with Amnesty International - a charitable pressure group on behalf of political prisoners 3. Held no actual bias but concerns that public **perception** might be bad for the judge Held * **Apparent bias** (seen bias) * Proceedings were abandoned and reheard by new bench of 7 judges

Question 42

**Locabail v Waldorf Investment Corp [2000]** | 1st element ## Footnote nemo judex in causa sua

Answer 42

Issue * COA reconsidered the issue of judicial bias Court had to consider 2 rules - 1. where the judge had **interest** in the case decided (Dimes v Grand Junction Canal [1852]) 2. examination of all relevant circumstances that there was a real **danger or possibility** of bias (R v Gough [1993]) Facts 1. A recorder published articles adjudicating in a personal injury case 2. Which were allegedly in favour of the claimants and against insurers Held * Said to take a broad common sense approach as a lay observer with knowledge of the facts * Couldn’t exclude the possibility that the recorder was biased * Held inappropriate for a judge to use intemperate language about subjects which he had adjudicated or would have to adjudicate * **Appeal allowed & retrial ordered**

Question 43

What is the right to a fair hearing - ***audi alteram partem***? What are the 6 rights? | 2nd element ## Footnote procedural impropriety - breach of natural justice

Answer 43

Introduction * A fundamental requirement of justice that when a person’s interest are affected by judicial or administrative decision * They should have the opportunity to **know & understand** any allegations made, and to **make representations** to the decision-maker to meet the allegations 6 rights 1. Right to be given **notification** of hearing 2. Right to be given **indications** of any adverse **evidence** 3. Right to be given opportunity to **respond** to the evidence 4. Right to an **oral hearing** 5. Right to **legal representation** at hearing 6. Right to **question** witnesses

Question 44

**R (Imam) v London Borough of Croydon [2022]** | 2nd element ## Footnote audi alteram partem

Answer 44

Facts 1. P succeeded in a challenge over the level of funding for her package of care 2. Decision to give claimant 35 hours of support per week was unlawful 3. It failed to meet her needs contrary to requirements of **Care Act 2014** - the need to assess and meet the needs of adults who meet the fulfilled criteria 4. C’s care and support plan was drafted without the involvement of the C or her family Held * This was held to be a ‘**significant procedural flaw**’ (paragraph 34) * On grounds that the personal budget was not transparent and insufficient * Order was quashed

Question 45

What is the **Duty to act ‘fairly’ and the concept of legitimate expectation**? What are the 2 cases for this?

Answer 45

Introduction * Irrespective of the body in question, there needs to be a **duty to act fairly** * A **legitimate expectation** will arise by the complainant when he is led to understand the words or actions of the decision-maker that certain procedures are to be followed to reach a decision 1. where an individual/group is led to **believe that a certain procedure will apply** 2. where an individual/group **rely on a policy or guideline** which has previously governed an area of executive action Case * **Re HK (an infant) [1967]** * **R v Secretary of State for the Home department Ex Parte Asif Mahmood Khan [1984]**

Question 46

**Re HK (an infant) [1967]** ## Footnote Duty to act ‘fairly’ and the concept of legitimate exception

Answer 46

Held * Immigration officers not obliged to hold a hearing before deciding immigration status * However, nevertheless under an obligation to **act fairly** Note * Duty to give a hearing will be higher if a ‘**legitimate expectation**’ is created in the mind of the complainant by the public body concerned

Question 47

**R v Secretary of State for the Home department Ex Parte Asif Mahmood Khan [1984]** ## Footnote Duty to act ‘fairly’ and the concept of legitimate exception

Answer 47

Facts 1. Home Office published a circular stating the criteria to be used for determining if a child could enter the UK 2. Applicant wanted to bring nephew in 3. Entry was refused Held * Home Secretary acted **ultra vires** * On grounds that there was a ‘**legitimate expectation**' and was not free to employ a different criteria Takeaway * If there is an expectation which was made obvious for the complainant to comply with, it is likely that they would try their best to argue according to the policy