JT and others (Polish workers – time spent in UK) Poland [2008] UKAIT 00077

ASYLUM AND IMMIGRATION TRIBUNAL

THE IMMIGRATION ACTS

Heard at: Field HouseOn 15 April 2008

Before:

Senior Immigration Judge AllenSenior Immigration Judge Jordan

Between:APPELLANT

and

The Secretary of State for the Home DepartmentRESPONDENT

For the Appellant: Ms Tessa Anna Sempik, solicitorFor the Respondent: Mr S. Kandola, Home Office Presenting Officer

(1) Until 30 April 2006, the rights of Polish nationals admitted to theUnited Kingdom under the Polish Association Agreement beforePoland’s accession to the EU on 1 May 2004 were governed byparagraph 255B of the Immigration Rules. (2) Paragraph 255Bremained in force until 30 April 2006 when the Immigration (EuropeanEconomic Area) Regulations 2006 came into force. (3) Polish nationalswhose decisions were made prior to 30 April 2006 were permitted toaggregate the time spent in the United Kingdom under the AssociationAgreement and the 2000 Regulations in calculating the qualifyingperiod for the grant of ILR. (4) Paragraph 255B does not to apply inrelation to decisions made after 30 April 2006. Polish Nationals seekingrights of permanent residence under the 2006 Regulations are notentitled to aggregation of time spent under the AssociationAgreement. For this group, the qualifying period of five years operatesfrom the date of accession,1 May 2004, and there are can be no Polishnationals, who qualify under the 2006 Regulations before 1 May 2009.(5) The terms of the letters written to Polish nationals granting them

© CROWN COPYRIGHT 2008

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leave to enter under the Association Agreement to the effect that theywould be eligible to apply for settlement in the United Kingdom onemonth prior to the expiration of their leave, did not give rise to alegitimate expectation or any other right, contractual or otherwise,preventing the Secretary of State from making alterations to theprovisions affecting Polish workers after accession or at any timethereafter. (6) By comparison to the rights afforded to other accessionstate nationals, the scheme as it affects Polish nationals does notunlawfully discriminate against them.

DETERMINATION AND REASONS

1. Each of the appellants is a citizen of Poland, and each, or a familymember, was permitted to enter and work in the United Kingdomunder the European Community Association Agreement providingbenefits to Polish citizens. Each of the appellants entered theUnited Kingdom and commenced work prior to the accession ofPoland as a member of the Union on 1 May 2004. Each wasrefused a grant of permanent residence. Each is nowrepresented by Tessa Anna Sempik, solicitor, of Castelnau,Barnes.

2. Each of the appellants applied for, and was refused the grant of,a permanent right of residence under paragraph 15 of theImmigration (European Economic Area) Regulations 2006 (SI2006 No 1003) which came into force on 30 April 2006:

Permanent right of residence15.—(1) The following persons shall acquire the right to reside in theUnited Kingdom permanently—

(a) an EEA national who has resided in the United Kingdom inaccordance with these Regulations for a continuous periodof five years; [our emphasis]

3. The refusal was in each case made on the basis that, at the dateof decision, none had been residing in the United Kingdom inaccordance with the 2006 Regulations because, prior to 1 May2004, each resided in the United Kingdom in accordance with theAssociation Agreement. Although each was a worker (or a familymember of a worker) and became an EEA national when Polandbecame an EEA State on that day, none was a qualified personwithin the meaning of Reg 6 of the Regulations until accession:

6. (1) In these Regulations, "qualified person" means aperson who is an EEA national and in the United Kingdomas—

(b) a worker;

4. The appellants rely upon the transitional provisions contained inSchedule 4 to the 2006 Regulations:

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Interpretation1. In this Schedule—(a) the “2000 Regulations” means the Immigration (European EconomicArea) Regulations 2000 and expressions used in relation to documentsissued or applied for under those Regulations shall have the meaninggiven in regulation 2 of those Regulations;(b) the “Accession Regulations” means the Accession (Immigration andWorker Registration) Regulations 2004.Existing documents2.—(1) An EEA family permit issued under the 2000 Regulations shall,after 29 April 2006, be treated as if it were an EEA family permit issuedunder these Regulations.(2) Subject to paragraph (4), a residence permit issued under the 2000Regulations shall, after 29 April 2006, be treated as if it were aregistration certificate issued under these Regulations.(3) Subject to paragraph (5), a residence document issued under the2000 Regulations shall, after 29 April 2006, be treated as if it were aresidence card issued under these Regulations.(4) Where a residence permit issued under the 2000 Regulations hasbeen endorsed under the immigration rules to show permission toremain in the United Kingdom indefinitely it shall, after 29 April 2006,be treated as if it were a document certifying permanent residenceissued under these Regulations and the holder of the permit shall betreated as a person with a permanent right of residence underregulation 15.(5) Where a residence document issued under the 2000 Regulationshas been endorsed under the immigration rules to show permission toremain in the United Kingdom indefinitely it shall, after 29 April 2006,be treated as if it were a permanent residence card issued under theseRegulations and the holder of the permit shall be treated as a personwith a permanent right of residence under regulation 15.(6) Paragraphs (4) and (5) shall also apply to a residence permit orresidence document which is endorsed under the immigration rules onor after 30 April 2006 to show permission to remain in the UnitedKingdom indefinitely pursuant to an application for such anendorsement made before that date.Outstanding applications3.—(1) An application for an EEA family permit, a residence permit or aresidence document made but not determined under the 2000Regulations before 30 April 2006 shall be treated as an applicationunder these Regulations for an EEA family permit, a registrationcertificate or a residence card, respectively.(2) But the following provisions of these Regulations shall not apply tothe determination of an application mentioned in sub-paragraph (1)—

(a) the requirement to issue a registration certificateimmediately under regulation 16(1); and (b) the requirement to issue a certificate of application for aresidence card under regulation 17(3).

Decisions to remove under the 2000 Regulations4.—(1) A decision to remove a person under regulation 21(3)(a) of the2000 Regulations shall, after 29 April 2006, be treated as a decision toremove that person under regulation 19(3)(a) of these Regulations.(2) A decision to remove a person under regulation 21(3)(b) of the 2000Regulations, including a decision which is treated as a decision to

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remove a person under that regulation by virtue of regulation 6(3)(a) ofthe Accession Regulations, shall, after 29 April 2006, be treated as adecision to remove that person under regulation 19(3)(b) of theseRegulations.(3) A deportation order made under section 5 of the 1971 Act by virtueof regulation 26(3) of the 2000 Regulations shall, after 29 April 2006,be treated as a deportation made under section 5 of the 1971 Act byvirtue of regulation 24(3) of these Regulations.Appeals5.—(1) Where an appeal against an EEA decision under the 2000Regulations is pending immediately before 30 April 2006 that appealshall be treated as a pending appeal against the corresponding EEADecision under these Regulations.(2) Where an appeal against an EEA decision under the 2000Regulations has been determined, withdrawn or abandoned it shall, onand after 30 April 2006, be treated as an appeal against thecorresponding EEA decision under these Regulations which has beendetermined, withdrawn or abandoned, respectively.(3) For the purpose of this paragraph—

(a) a decision to refuse to admit a person under theseRegulations corresponds to a decision to refuse to admit thatperson under the 2000 Regulations;(b) a decision to remove a person under regulation 19(3)(a) ofthese Regulations corresponds to a decision to remove thatperson under regulation 21(3)(a) of the 2000 Regulations;(c) a decision to remove a person under regulation 19(3)(b) ofthese Regulations corresponds to a decision to remove thatperson under regulation 21(3)(b) of the 2000 Regulations,including a decision which is treated as a decision to remove aperson under regulation 21(3)(b) of the 2000 Regulations byvirtue of regulation 6(3)(a) of the Accession Regulations;(d) a decision to refuse to revoke a deportation order madeagainst a person under these Regulations corresponds to adecision to refuse to revoke a deportation order made againstthat person under the 2000 Regulations, including a decisionwhich is treated as a decision to refuse to revoke a deportationorder under the 2000 Regulations by virtue of regulation 6(3)(b)of the Accession Regulations;(e) a decision not to issue or renew or to revoke an EEA familypermit, a registration certificate or a residence card under theseRegulations corresponds to a decision not to issue or renew or torevoke an EEA family permit, a residence permit or a residencedocument under the 2000 Regulations, respectively.

Periods of residence under the 2000 Regulations6.—(1) Any period during which a person carried out an activity or wasresident in the United Kingdom in accordance with the 2000Regulations shall be treated as a period during which the personcarried out that activity or was resident in the United Kingdom inaccordance with these Regulations for the purpose of calculatingperiods of activity and residence under these Regulations.

5. We have set out the transitional provisions in full, although MsSempik relied solely on paragraph 6, because they demonstratethe relationship between the 2000 Regulations and the 2006Regulations and that for many purposes those able to rely upon

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the provisions formerly contained in the 2000 Regulations willcontinue to benefit from them. The obverse of the coin, however,is that the transitional provisions make no provision to enable aperson lawfully in the United Kingdom in some other capacity tohave that position equated with that of a person who qualifiesunder the 2006 Regulations.

6. Thus, whilst paragraph 6 aggregates periods of activity andresidence in accordance with the 2000 Regulations prior to 30April 2006 when the 2006 Regulations replaced them, both setsof Regulations were concerned with EU nationals and they, bydefinition, could not refer to Polish nationals prior to accession on1 May 2004.

7. In order to deal with this difficulty, Ms Sempik relied uponparagraph 255 of the Immigration Rules, both as originally laidbefore Parliament and as amended from time to time. We shallset out the history of this provision insofar as it is material:

EEA Nationals and their families

Settlement

255. An EEA national (other than a student) and a familymember of such a person, who has been issued with a residencepermit or residence document valid for 5 years, and who hasremained in the United Kingdom, in accordance with theprovisions of the 1994 EEA Order for 4 years and continues to doso may, on application, have his residence permit or residencedocument, as the case may be, endorsed to show permission toremain in the United Kingdom indefinitely.

This was deleted, with effect from 2 October 2000, andsubstituted by

255. Any person (other than a student) who under either theImmigration (European Economic Area) Order 1994 or the 2000EEA Regulations has been issued with a residence permit orresidence document valid for [4 or 5] years, and who hasremained in the United Kingdom in accordance with theprovisions of that Order or those Regulations (as the case maybe) for 4 years and continues to do so may, on application, havehis residence permit or residence document (as the case maybe) endorsed to show permission to remain in the UnitedKingdom indefinitely.

(A paragraph 255A was inserted from 18 September 2002confined to Swiss nationals.)

255B was inserted from 1 May 2004

255B This paragraph applies, where an Accession State nationalhas been issued with a residence permit under the 2000 EEA

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Regulations and, prior to 1 May 2004, remained in the UnitedKingdom, in accordance with the provisions of the Rules and in acapacity which would have entitled that Accession State nationalto apply for indefinite leave to remain after a continuous periodof 4 years in that capacity in the United Kingdom. Where thisparagraph applies, the period during which the Accession Statenational remained in the United Kingdom prior to 1 May 2004shall be treated as a period during which he remained in theUnited Kingdom, in accordance with the 2000 EEA Regulationsfor the purposes of calculating the 4 year period referred to inparagraph 255.

Thus, until 30 April 2006 (the date the 2006 Regulations cameinto force), rights of settlement for EEA nationals and theirfamilies were governed by paragraphs 255 and 255B. Theseprovisions were deleted with effect from 30 April 2006, the datewhen the 2006 Regulations came into force. The effect of thesechanges was to permit Polish citizens who became Union citizensafter 1 May 2004 to benefit from the period they had spent priorto accession so that the period spent in the United Kingdomunder the EC Association Agreement was treated as if they hadbeen Union citizens for the purposes of calculating the qualifyingconditions under the 2000 Regulations. This was, however, alimited window of opportunity because this privilege waswithdrawn when the 2006 Regulations came into force, not byoperation of those Regulations but by amendment to theImmigration Rules.

8. Those who qualified under the Association Agreement alone wereentitled to ILR. Those who had not resided for the qualifyingperiods prior to accession were entitled to a honeymoon periodwhich enabled them to have their pre-accession residenceaggregated with the qualifying time spent in the United Kingdomas Union citizens. Those who had not been residing in the UnitedKingdom for the qualifying period prior to the amendment ofparagraph 255 on 30 April 2006 were not able to make use ofaggregation: they had to rely solely upon their period ofresidence after 1 May 2004 when they became Union citizens.Their only consolation was that the transitional provisionspermitted an aggregation of time under the 2000 and 2006Regulations. Were it not for the transitional provisions, timewould have started again for them on 30 April 2006 because theycould not have been residing in accordance with the 20006Regulations until they came into effect.

9. As we shall shortly see, all of the decisions made in the presentappeals were made after 30 April 2006 when paragraphs 225 -225B no longer applied. We shall, of course, return to theconsequences of this later in the determination.

[1] Mr Jozef Truchan, his wife and 2 dependent children

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10. Mr Truchan and his family seek areconsideration of the determination of Immigration Judge Mark-Bell, promulgated on 22 November 2007 dismissing their appealsagainst the decisions of the respondent made on 19 July 2007.Mr Truchan was born on 7 December 1964 and has been in theUnited Kingdom since at least 7 February 2002 when he wasissued with an Inland Revenue self employed registration. Hewas given a further year’s leave on 1 October 2002 and a further3 years leave on 13 November 2003 which would have permittedhim to remain until November 2006. In each case, leave wasgranted under the Association Agreement.

11. In his determination, the ImmigrationJudge properly, in our judgment, disregarded the determinationof Immigration Judge Lobo in an unreported determination ofGryglewski (IA/03453/2007), relying upon practice direction 10and the citation of unreported cases. In any event, paragraph 7of the Immigration Judge Lobo’s determination is inadequatelyreasoned: the appeal was allowed only on the basis that whenthe first appellant applied for permanent residence on 29 March2006, he had been a self-employed person for five-years, albeithis residence since 12 April 2003 was pursuant to an AssociationAgreement and not under the 2000 or 2006 Regulations.Immigration Judge Lobo made no reference to the requirementthat residence in the United Kingdom had to be in accordancewith those Regulations.

12. Ms Sempik, who appeared on behalf ofthe appellants, argued that the first appellant’s business activitybefore the 2006 Regulations came into force was in accordancewith the 2000 Regulations and that the Immigration Rules,paragraph 255B, and its reference to a residence permit had tobe construed as a reference to a person entitled to a residencepermit after 1 May 2004, and that those who had been issued aresidence permit and permanent residence under the AssociationAgreements or were entitled to them were to be equated withthose resident in the United Kingdom in accordance with the2000 Regulations.

13. In addition, she submitted that therespondent’s letter, in this case dated 13 November 2003, gaverise to a legitimate expectation of permanent residence. In thecourse of argument before us, we have been provided with amodel letter, which Ms Sempik submitted was in identical termsin all such cases. It ran as follows:

“I am writing to confirm that you have been granted leave toremain in the United Kingdom as a self-employed person underthe provisions of an EC Association Agreement. Leave is grantedon the understanding that you will not claim any public funds,but will maintain and accommodate yourself and any

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dependants from the profits of your business. Please note thatyou must not engage in any employment; you must work solelyfor your own business.You will be eligible to apply for settlement in the United Kingdomone month before your leave expires. When applying, youshould provide:

(a) proof that you are still paying National Insurance contributionsand Tax as a self-employed person*;

(b) bank statements from your business and personal accounts;*(c) a statement to the effect that you have not worked in the

United Kingdom throughout the time you have spent hereunder the EC Association Agreement provisions except in yourbusiness and have not claimed any public funds;

(d) a short statement, giving the progress of your businessthroughout the three years;

(e) financial statements for the business, prepared by anaccountant (preferably audited) for the three years;*

(f) proof that you are still maintaining and accommodatingyourself in the United Kingdom (rent agreement or mortgagestatement, utility bills, council tax, etc);

At present, those applying to leave to remain in this category do notneed to complete an application form.

* Please note that we expect bank statements and tax returns tocorroborate any information provided in accounts for the business.

14. Finally, she submitted that thedifferent treatment provided to Bulgarian and Romaniannationals when those countries acceded to the Union on 1January 2007, which preserved their rights under the oldAssociation Agreements and thereby enabled those nationals toaggregate time spent in the United Kingdom under them withtime spent after accession, was discriminatory as it treated themmore generously than Polish nationals. As discrimination wasunthinkable, the only permissible construction of the Regulationswas that time spent in the United Kingdom pursuant to theAssociation Agreement had to be aggregated with time spentsince accession, whatever the Regulations might say.

15. The Immigration Judge dismissed eachof these submissions by reference to GN (EEA Regulations: Fiveyears’ residence) Hungary [2007] UKAIT 00073, succinctlyremarking that the appellants’ clock started ticking only on 1 May2004, the date of accession. He dismissed the allegation ofdiscrimination based on the different treatment of Romanian andBulgarian nationals as it arose out of the less favourable rulesapplicable to Bulgarian and Romanian nationals attempting toestablish themselves in the United Kingdom. The ImmigrationJudge also dismissed the allegation of legitimate expectation byreference to the changes in the statutory or quasi statutoryprovisions governing the appellants and implying that the

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Secretary of State was not prevented from introducing suchchanges.

[2] Mr Janusz Wojtielewicz and Mr Boguslaw Ryszard Liber

16. These two appellants are unrelatedbut their appeals were heard together as they raised similarissues.

17. Mr Wojtielewicz, born on 23September 1957, entered the United Kingdom in 1988 with leaveto remain until August 1988. He returned to the United Kingdomin November 2000 with leave to remain until 7 April 2001. Duringthe subsistence of his leave, he applied for leave to remain underthe provisions of the Association Agreement, which was grantedfrom 7 April 2001 to April 2002. Further leave was granted on 23December 2002 until 7 April 2005. He sought permanentresidence on 6 July 2006. At the time of his application he hadbeen lawfully resident in the United Kingdom since November2000, some 5 ½ years before.

18. Mr Liber, born on 15 March 1948,claims to have entered the United Kingdom in 1998, following theissue of a three-year work permit. On 26 July 2001 he applied forfurther leave to remain as a self-employed person under theAssociation Agreement which was granted for a period of oneyear from 2 October 2001 until 3 October 2002. Further leavewas granted on 12 May 2003 expiring on 3 October 2005. Heapplied for permanent residence on 7 August 2006 by which timehe had been in the United Kingdom for about eight years.

19. Both applications were refused by theSecretary of State in identical terms on 6 February 2007.

20. Both appellants soughtreconsideration of the determination of Immigration Judge Sharppromulgated on 11 July 2007 in which he dismissed both theappeals of Mr Wojtielewicz and Mr Liber. He considered that thesole issue was whether the appellants had achieved five yearscontinuous residence under Regulation 15. He considered thatthe computation of time could not commence until the date ofPoland’s accession on I May 2004.

21. In reaching his decision, theImmigration Judge took into account the provisions of paragraph255B of the Immigration Rules prior to its repeal on 30 April2006. He also took into account the different position of theBulgarian and Romanian workers, whose position was preservedunder the Immigration Rules. It was also be argued before himthat the Home Office letters of 2003 contained assertions thatthe Secretary of State no longer considered himself bound to

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comply with. Having considered the letters, the ImmigrationJudge concluded there was no legitimate expectation on whatappears to us to be two bases. First, neither Appellant hadapplied within one month prior to the expiry of the leave, as heconstrued the letter to require. Secondly, the letters did not giverise to a legitimate expectation. In paragraph 31 of hisdetermination, he said:

“They may well have had hopes and aspirations that theirsubsequent applications would succeed but that is a differentsituation from having a legitimate expectation with any force oflaw. They were at the time of their current applications subjectto the prevailing legal structure in the form of the 2006Regulations.”

22. In essence, the Immigration Judge inthis appeal reached a similar conclusion to that reached in theother; namely, the application had to be determined inaccordance with the then current Rules and the fact that, at anearlier time such an application would (or even might) havesucceeded was none to the point.

23. The Immigration Judge also consideredthe transitional provisions and determined that those provisionsdid not assist the appellants. Their periods of residence were notin accordance with the 2000 Regulations. Instead, he concludedthat they were “in accordance with the Immigration Rules”. Heaccepted that the position of Bulgarians and Romanians mightappear anomalous but determined that the Secretary of Statewas entitled to make subordinate legislation which containedsuch anomalies.

[3] Ms Katarzyna Maria Nitecka and her two minor children asdependants

24. This is a reconsideration sought by theSecretary of State. She sought reconsideration of thedetermination of Immigration Judge Flynn promulgated on 30 July2007 in which she allowed the appeal on ‘immigration grounds’.

25. The appellant was born on 10 May1975 and entered the United Kingdom, as a visitor in November1999. She was subsequently issued leave to remain in 2001under the Association Agreement for the conventional initialperiod of 12 months which was subsequently extended for theconventional further period of three years, a period ending on 6December 2005. On 7 December 2006, by which time she hadbeen in the United Kingdom for seven years, she applied forindefinite leave to remain. The Secretary of State refused herapplication by a decision made on 12 March 2007.

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26. In her determination, the ImmigrationJudge relied upon paragraph 222 of the Immigration Rules:

222. Indefinite leave to remain may be granted, on application, to aperson established in business provided he:

(i) has spent a continuous period of 4 years in the United Kingdomin this capacity and is still so engaged; and

(ii) has met the requirements of paragraphs 217 and 218 or 219throughout the 4 years; and

(iii) submits audited accounts for the first 3 years of trading andmanagement accounts for the 4th year.

This was amended with effect from 1 January 2007, which wasprior to the Secretary of State’s decision in the application, toinclude:

222. Indefinite leave to remain may be granted, on application, to aperson established in business provided he:

(i) is a national of Bulgaria or Romania; …

27. The appellant, as a Polish citizen,could have had no prospect of succeeding under the Rules asthey applied at the date of the Secretary of State’s decision. Inlight of the respondent’s letter, with its reference to the appellantbeing eligible to apply for settlement in the United Kingdom “onemonth before your leave expires” and relying on the Tribunal’sdecision in GC (Legitimate expectation-entry clearance) Romania[2005] UKAIT 00142 and ex parte Begbie [1999] EWCA Civ 2100,the Immigration Judge expressed herself satisfied that theappellant had been told she would be eligible to apply forsettlement after four years residence. The Immigration Judgefound that the appellant relied upon that representation and thatthere was no overriding public interest which justified defeatingthe expectation. Thus, she found the Secretary of State wasbound to grant settlement to the appellant on legitimateexpectation principles. She also found that the Secretary of Statehad failed to deal with all applicants in a similar position in aneven-handed and fair way. Accordingly, she found that thedecision was not in accordance with the law and allowed theappeal on immigration grounds.

Procedural history

28. In the period leading up to this appeal,it became apparent that Ms Sempik’s submission was to theeffect that she had been involved in the successful applications ofabout 150 Polish nationals who had been provided with a right of

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permanent residence in accordance with the letter that we haveset out in paragraph 13 above. Furthermore, it was her case thatthe requirement that such applications be made within onemonth of the expiration of leave (“you will be eligible to apply forsettlement in the United Kingdom one month before your leaveexpires”) was not a formal condition precedent to the grant ofsettlement and that the Secretary of State had routinelydisregarded this requirement, if requirement it was. As we havesaid, we accept this.

29. It thus became important to establishwhether in the 150 cases referred to by Ms Sempik, the Secretaryof State had demonstrated by his conduct a policy that rancounter to the 2000 or 2006 Regulations. It became readilyapparent at a hearing when these conjoined appeals werementioned before Senior Immigration Judge Jordan that it wasimpracticable for the Secretary of State to consider each of the140 or 150 appeals and that the issue might more easily beidentified and resolved by the following directions made by theSenior Immigration Judge on 25 January 2008:

(1)Ms Sempik was to supply Mr Walker, the Home OfficePresenting Officer within 21 days with a maximum of 5 samplecases dealt with by her which lead to the successful grant ofleave (of whatever kind);

(2)The appellants were given leave for Ms Sempik to file andserve a witness statement within 21 days setting out herexperience of similar applications, successful and unsuccessful(if any);

(3)Mr Walker was to make enquiries of decision-makers duringthe period May 2004 to August 2006 on their approach to thegrant of leave in similar cases and/or those identified by MsSempik in accordance with (1) above and to produce suchinformation as he is able to obtain within a further 21 days andno later than 21 days before the resumed hearing.

The appellants’ sample cases

30. In her witness statement of 14February 2008, Ms Sempik spoke of the practice of the HomeOffice when conducting applications from Polish nationals toremain under the EC Association Agreement to grant one year’sinitial leave followed by a further 3 years. Subject to proof thatthe appellant had traded, paid tax and National Insurance andwas able to accommodate himself and any dependants withoutrecourse, the applicant was then eligible to apply for settlementand the application was routinely granted. Ms Sempik provided 6examples of this as a sample selection. Where necessary, oursummary of these examples have been augmented by thecomments made by Mr Chris Wood (Euro Caseworker) andcontained in the Secretary of State’s response of 14 April 2008.

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(i) The decision in the case of Mr Maciej Lis was notmaterial to the issues before us. He switched fromself-employment to employment and registered withthe Worker Registration Scheme in which capacity heremained after Poland became an accession State.Had he remained in a self-employed capacity, hewould have been able to benefit from paragraph255B.

(ii) Mr Pasko was granted settlement under the ECAssociation Agreement. His application was madebefore Poland acceded to the EU (although thedecision was made after).

(iii) Mr Wasiak was granted settlement under the ECAssociation Agreement in October 2004, following anapplication made after accession but in accordancewith paragraph 255B.

(iv) Mr Kurpik was granted settlement rights under the ECAssociation Agreement on 26 August 2006 followingan application made after accession but before theamendments to paragraph 255B. His application wasdealt with in accordance with paragraph 255B, albeitlong after he first became eligible to apply inaccordance with the Secretary of State’s letter: “Youwill be eligible to apply for settlement in the UnitedKingdom one month before your leave expires.” (Theletter does not state that the applicant must applywithin a month or otherwise provide for theconsequences of a later application. Insofar asImmigration Judge Sharp in the appeals of MrWojtielewicz and Mr Liber decided their entitlementwas dependent upon making an application withinthe period of one month prior to the expiry of theleave, as he construed the letter to require, weconsider he was in error.)

(v) Mr Krzysztofik was granted settlement on 10November 2006 following an application made on 10July 2006 after paragraph 255B was amended toexclude Polish nationals. His application was firstrefused but allowed on re-submission. The Secretaryof State says that this application should have beenrefused and that his permanent status will bereviewed.

(vi) Mr Klewicki was granted ILR under the Work PermitHolder scheme, having arrived in 2002. He qualifiedfor permanent residence under that scheme,following application made in June 2006.

Evidence of inconsistency in decision-making

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31. Each of the grants in the above six cases is explicable onthe basis of an application of provisions governing anotherscheme or the application of paragraph 255B. The exception isat (v), Mr Krzysztofik, whose application was neither made beforeaccession, nor before 30 April 2006 and the removal of paragraph255B in its original form. This single example is not sufficient tojustify an inference that the Secretary of State was conducting apolicy that ran counter to the EC Association Agreement, theRules or the EEA Regulations. If, as the Secretary of State nowasserts, this application (having first been refused) was grantedin breach of the EC Association Agreement or the ImmigrationRules or the EEA Regulations it is explicable if it was a mistake. Ifa mistake was made, such a mistake does not entitle others tobenefit from it as a matter of right. There is no material fromwhich to infer this was an informal policy that officials in theHome Office were applying inconsistently with the AssociationAgreement, the Rules or the Regulations. Given that Ms Sempikwas permitted to use specimen examples as demonstrating apattern of inconsistent or irrational decision making, we do notconsider that this single example permits us to conclude that thecorrect application of the Immigration Rules and the EEARegulations would be unfair or unjustified.

32. On this material, there is a consistent

pattern of decision-making:

(i) Those applicants who had been granted leave to enter andremain under the EC Association Agreement and hadcompleted 4 years in the United Kingdom prior to Poland’saccession on 1 May 2004 who had applied for, and whoseapplications had been considered, prior to 1 May 2004,were, if the requirements for settlement had been met,granted ILR under the EC Association Agreement.

(ii) Those applicants who had been granted leave to enter andremain under the EC Association Agreement and had notcompleted 4 years in the United Kingdom after Poland’saccession on 1 May 2004 but had before April 2006 were, ifthe requirements for settlement had been met, entitled toremain under paragraph 255B. Those applicants were notprevented from obtaining leave to remain by failing toapply within a specific period. (“You will be eligible to applyfor settlement in the United Kingdom one month beforeyour leave expires.”)

There is no evidence before us that the Secretary of Statedeviated from that policy/application of the Rules.

33. For those applicants who had been granted leave to enterand remain under the EC Association Agreement but who had notcompleted 4 years in the United Kingdom prior to 30 April 2006,their claims fail. They do not, of course, qualify under the

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Association Agreement, or under paragraph 255B which nolonger applied.

34. There is nothing inconsistent in the treatment that has

been afforded any of the above categories of persons. Rather,the complaint is in reality that it is unfair that the provisionsgoverning a permanent right to remain changed on 1 May 2004and on 20 April 2006 with the effect of requiring those who hadnot yet qualified under the EC Association Agreement to re-qualify from the beginning under the EEA Regulations. Part onlyof this group had the benefit of what amounts to transitionalprovisions contained in paragraph 255B of the Immigration Rules,restricted to those applicants who managed to satisfy the criteriaby 30 April 2006. Those unable to do so suffer the disadvantageof having time begin again, thereby preventing them fromobtaining a permanent right of residence until 1 May 2009, 5years after accession.

35. Once it is established that there is neither inconsistency norirrationality in the manner in which the Secretary of State hasapproached the various applications, the issue is reduced towhether the Regulations, properly construed, confer a right ofpermanent residence upon the particular applicant. If not, theissue is whether it was lawful for the Secretary of State to amendthe Rules or promote the Regulations in such a way as to preventthis disadvantaged group from reaping the benefits of what theyexpected would be an unaltered scheme. Those disadvantagedmust either establish that the Secretary of State’s conductprevents him from relying upon a strict application of the Rules orRegulations in their cases either based upon principles oflegitimate expectation or some free-standing right that preventssuch reliance. The Secretary of State was under no duty to draftthe 2006 Regulations in such a way as to provide them with abenefit that was not in contemplation when they applied for andwere granted leave to enter or remain under the EC AssociationAgreement. They do not complain that they should havereceived ILR under the EC Association Agreement. The substanceof their complaint is that they are treated less favourably thanthose, like themselves who were admitted to the United Kingdomunder the EC Association Agreement, who were able to benefitfrom the aggregation of time spent in the United Kingdom prior to1 May 2004. The essence of their complaint is that the Secretaryof State could have adopted a policy that would have permittedthis but did not do so.

36. This requires the Tribunal to considerthe consequences of the letters provided to each appellant whenlast granted leave to remain under the Association Agreementand its assertion, ‘You will be eligible to apply for settlement inthe United Kingdom one month before your leave expires’. If thisgave rise to a legitimate expectation at all, it would, on its face,

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amount only to a legitimate expectation that the appellant shouldreceive ILR under the EC Association Agreement. It could notcontain within it a legitimate expectation that they would have aright to remain as a Union citizen because, at the time, Polandwas not an accession state. The subsidiary issue of whether, ifthe right subsists, it was conditional or dependant upon a timelimit in which to apply has already been disposed of.

Aggregation of time spent under the Association Agreement 37. In GN (EEA Regulations: Five years’

residence) Hungary [2007] UKAIT 00073 the Tribunal summarisedits views in these terms:

(1) The word “legally” in Article 16 of the Citizens Directive is tobe construed as a reference to requirements of European law: itdoes not mean “in accordance with national law”. (2) Therequirement in reg 15(1)(a) of five years’ residence in the UK “inaccordance with these Regulations” is not contrary to any rightsgiven by the Directive and means what it says (as supplementedby the Transitional Provisions in Schedule 4). Thus, a period ofresidence by a person not exercising a right under the 2000 or2006 Regulations at that time cannot count towards the fiveyears.

38. GN was a Hungarian citizen whoappealed against the decision of the Secretary of State of 9February 2007 refusing his application for permanent residenceas an EU national residing here. He had come to the UnitedKingdom in August 1997 as a student and obtained a work permitunder the Worker Registration Scheme. Hungary also became amember of the European Union on 1 May 2004. In January 2006the appellant applied for, and was granted, a residence permit asa qualified person expiring in 2011. On 16 August 2006, havingbeen in the United Kingdom for 9 years but only 2 years sinceHungary’s accession, he sought permanent residence. Theappellant was, therefore, an EEA national but the same questionarose as in our appeal as to whether his residence in the UnitedKingdom had been for five years in accordance with the 2006regulations which had come into force on 30 April 2006.

39. Nobody then (or now) had been in theUnited Kingdom in accordance with those Regulations for 5 years.Having referred to paragraph 6 of the Schedule 4 transitionalprovisions, the Tribunal noted that there are no other elements ofthe 2006 Regulations which enabled residence before the cominginto force of the 2006 Regulations to be counted in calculatingthe 5-year period. The Tribunal found that the appellant,although lawfully present, was not present under the 2000Regulations until Hungary became a member of the EU on 1 May2004 when his period of residence for the purposes of Reg 15(1)(a) of the 2006 Regulations must have commenced. He therefore

16

had a period of two years’ residence under the 2000 Regulationsto which was to be added the period of residence under the 2006Regulations from the coming into force of those regulations, aperiod of just over three years and insufficient for the purposes ofReg. 15.

40. The appellant submitted that hisresidence in the United Kingdom, lawful as it was, before Hungarybecame a member of the European Union should count towardsresidence for the purposes of Article 16 of the Directive (“Unioncitizens who have resided legally for a continuous period of fiveyears in the host Member State shall have the right of permanentresidence there”) and, for that reason, should count for thepurpose of enabling him to have permanent residence in theUnited Kingdom, whatever the United Kingdom’s regulations maysay. The Tribunal stated in paragraph 10 of its determination:

We are unpersuaded by the appellant’s submissions. Lookingfirst at Article 16 of the Directive we find there, as we haveindicated, the word “legally”. The appellant’s submissionincorporates an implication that that word means “lawfully inaccordance with national law”. We see no basis for reading thatmeaning into the word “legally” in Article 16 of the Directive.When one sees a word of that sort in any legal instrument, oneinterprets it normally within the instrument’s own legal context.The context of the Directive is European law: and for that reasonwe read “legally” in Article 16(1) as meaning in accordance withEuropean law. If there were any doubt about that it would in ourview be resolved by paragraph 17 of the preamble, to which theappellant has referred us, which indicates that the intention is togive a right of permanent residence to those “who have residedin the host Member State in compliance with the conditions laiddown in this Directive” for five years. That, it seems to us, issufficient to show that the provisions of the Directive areproperly reflected in the regulations, which indicate that theperiod of five years in question is a period during which theapplicant was exercising Treaty rights or was a spouse or familymember of someone doing so. In the appellant’s case he wasnot exercising any direct Treaty rights before Hungary, thecountry of which he is a national, became a member of theEuropean Union.

41. Ms Sempik submitted to us that eachof the appellants was entitled to benefit from paragraph 6 of thetransitional provisions contained in Schedule 4 to the 2006Regulations. She submitted that GN was properlydistinguishable. As appears from paragraph 2 of itsdetermination, the Tribunal accepted that GN had come to theUnited Kingdom in 1997 as a student. Hungary, like Poland,became a member of the European Union on 1 May 2004. On 16August 2006 when he applied for a residence permit hedemonstrated that he had been working under the WorkersRegistration Scheme, which came into effect after accession. In

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paragraph 6 of the determination, the Tribunal recorded that GNonly had a period of two years residence under the 2000Regulations and a further period of approximately 12 monthsunder the 2006 Regulations making a period of just over threeyears in total. It must follow from these passages that GN hadnever been a worker prior to Hungary’s accession to the Union.Accordingly, his application was bound to fail because he hadnever been a worker for a period of more than five years. Thiswas to be contrasted with the position of the appellants in thepresent appeal, each of whom had been working under theAssociation Agreement prior to the accession of Poland to theUnion and each of whom had been working for more than 5years.

42. We accept that GN’s application wasbound to fail, but the terms of the Tribunal’s determination, as wehave shown by reference to the passages we have extractedabove, are much wider than by reason of his failure to haveestablished he had been a worker for five years. It is clear thatthe Tribunal’s thinking was directed in terms to whether any ofhis residence prior to accession might amount to residence inaccordance with the 2006 Regulations or, pursuant to thetransitional provisions, under the 2000 Regulations. It should benoted that the definition of a qualified person within Regulation 6of the 2006 Regulations includes both a worker and a student.Had he been a Union citizen, he would have been a qualifiedperson, irrespective of whether he had been a worker for 5 years.For these purposes, the exclusion of a student in paragraph 255of the Immigration Rules does not distinguish the appellant in GNfrom the appellants in this appeal.

43. The appeals before us areindistinguishable from the decision in GN. The transitionalprovisions, the effect of which is limited to aggregating thequalifying periods set out in the 2000 and 2006 Regulations, donot benefit the appellants. The benefit of aggregation is limitedto Union citizens and the appellants cannot claim the benefit of aperiod when they were not Union citizens. Whilst the 2006Regulations contain transitional provisions which aggregateperiods of residence under the 2000 Regulations and the 2006Regulations, no similar provisions aggregate pre-accessionresidence in the United Kingdom.

The Accession (Immigration and Worker Registration)Regulations 2004 (SI 2004 No 1219)

44. Our approach to the issue ofaggregation is strongly supported by our consideration of theAccession (Immigration and Worker Registration) Regulations2004 (SI 2004 No 1219) which came into force on 1 May 2004,the day Poland acceded to the Union, (“the Accession Regulations

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2004”). Although the parties did not refer to these provisions,they are an important stage in the legislative process concerningaccession State nationals.

45. The United Kingdom governmentexercised its right of derogation (permissible until April 2009 atleast) from the obligation to afford rights of free movement tonationals of the accession States in order to regulate access bythem to the UK labour market. Polish nationals were in generalincluded within those entitled to benefit from the 2000Regulations subject to various restrictions. Thus, for example,the right of an EU job-seeker to reside in the United Kingdom wasmodified to the extent that a Polish national, as a member of anaccession State, had also to demonstrate he was self-sufficient.More importantly, the exercise of rights of free movement issubject a scheme of registration under Part 3. This draws adistinction between those Polish nationals already lawfullyemployed in the United Kingdom and those commencing workafter 1 May 2004. The former, and all of the appellants fall intothis category, were not required to apply for a registrationcertificate. In contrast, those commencing work after theaccession date are required within a month of starting work tomake such an application. The Regulations provide that such aperson must obtain a certificate authorising him to work for anauthorised employer. Unless he does so, he is not permitted towork. Accession State workers requiring registration were notpermitted to be issued with a residence permit for the benefit ofa relative or spouse under the 2000 Regulations or to benefitfrom Reg 15 dealing with the issue of residence permits andresidence documents. Nevertheless, pursuant to Reg 5 (2), anaccession State worker requiring registration is to be treated as aqualified person under both the 2000 Regulations and under Reg6 of the 2006 Regulations provided he continues to work.

46. The transitional provisions set out inReg 6 of the Accession Regulations 2004 dealt with the positionof those, like the appellants, who had been granted leave toenter or remain prior to 1 May 2004. These ceased to be boundby any conditions attached to their original grant of leave toenter or remain:

6. - (1) Where before 1 May 2004 a qualified person or the familymember of a qualified person has been given leave to enter orremain in the United Kingdom under the 1971 Act subject toconditions, those conditions shall cease to have effect on and afterthat date.

47. This passage requires some comment. As set out above,under Reg 6 (1) where before 1 May 2004 a qualified person hasbeen given leave to enter or remain in the United Kingdom underthe 1971 Act, those conditions should cease to apply. However,

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the definition of a qualified person both under Reg 5 of the 2000Regulations and Reg 6 of the 2006 Regulations defines a qualifiedperson as an EEA national, (itself defined) who is in the UnitedKingdom, see paragraph 3 above. Since prior to 1 May 2004, noPolish national was a qualified person, this would mean that noPolish national could benefit from the transitional provisions setout in Reg 6. However, the position is saved by Reg 6 (4) (d) thatdefines qualified person in this context as a person who becomesfor the purposes of the 2000 Regulations a qualified person on 1May 2004. This expression is not without its significance becauseit makes clear that the appellants became qualified persons on 1May 2004 and not before. Until they became qualified persons,they could not benefit from the 2000 Regulations.

48. Thus the scheme brought into operation two separate andclearly defined categories of Polish workers: those accessionState workers requiring registration and those not. This is theeffect of Reg 2 of the Accession Regulations 2004:

2. - (1) Subject to the following paragraphs of this regulation,"accession State worker requiring registration" means a national ofa relevant accession State working in the United Kingdom duringthe accession period.

(2) A national of a relevant accession State is not an accessionState worker requiring registration if on 30th April 2004 he hadleave to enter or remain in the United Kingdom under the 1971 Actand that leave was not subject to any condition restricting hisemployment.

(3) A national of a relevant accession State is not an accessionState worker requiring registration if he was legally working in theUnited Kingdom on 30 April 2004 and had been legally working inthe United Kingdom without interruption throughout the period of12 months ending on that date.

49. A person not requiring registration was further defined inReg. 2 (7) by reference to his work prior to accession:

(a) a person working in the United Kingdom during a periodfalling before 1 May 2004 was legally working in the UnitedKingdom during that period if -

(i) he had leave to enter or remain in the United Kingdomunder the 1971 Act for that period, that leave allowed himto work in the United Kingdom, and he was working inaccordance with any condition on that leave restricting hisemployment; or

(ii) he was entitled to reside in the United Kingdom for thatperiod under the 2000 Regulations without therequirement for such leave;

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50. All the appellants fall within this group. Although workingin the United Kingdom, they did not require registration and,therefore, fell into the category of those who were able to benefitfrom the 2000 Regulations without modification. It is, of course,axiomatic in this reclassification of their status that, prior toaccession, they were unable to benefit from the 2000Regulations. Thus, on 1 May 2004 but not before, theseappellants became qualified persons and commenced theirenjoyment of rights of free movement alongside all other Unioncitizens provided by the 2000 Regulations. There is nothing,however, within the 2004 Regulations that suggests such rightsas they enjoyed prior to accession were to be treated asaggregated with their new-found rights under the 2000Regulations. The 2004 Regulations provided an opportunity forthe United Kingdom government to afford them those rights hadit chosen to do so. The 2004 Regulations make it plain that theywere provided with rights of free-movement untrammelled by theobligation to go through the registration scheme but that thoserights accrued to them on 1 May 2004.

51. The provisions of the 2004 Regulations were modified butnot replaced by the introduction of the 2006 Regulations. Apartfrom a series of consequential modifications, the substance of theamendments was that Polish workers like other Union workersbecame subject to the 2006 Regulations on their introduction on30 April 2006 but, importantly, those workers requiringregistration continued to occupy a less advantageous positionthan their European Union co-nationals both by reason of theirduty to comply with the registration scheme and the limitation ontheir rights to obtain residence documentation under Part 3 of the2006 Regulations, that is, registration certificates under Reg 16or residence cards under Reg 17.

52. The effect of these provisions is that the rights and benefitsof three classes of Union citizens can be identified relevant forour purposes:

(a) Union citizens other than members of the accession States;(b)Accession State nationals who fall into the category of workers

not requiring registration; and(c) Accession State nationals being workers requiring registration.

53. The benefits attributable to each category were different.In particular, there is nothing to suggest that the appellants wereentitled to stand in the same position as other Union nationals.Those, like the appellants, who are accession State nationals notrequiring registration commenced enjoyment of the rights andbenefits of accession from 1 May 2004, those benefits beingmodified along with all other Union citizens by the changesintroduced by the 2006 Regulations.

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54. Furthermore, as we say in paragraph 62, in relation to the2000 and 2006 Regulations, the Accession Regulations aresecondary, delegated or subordinate legislation with the full forceof law, unlike the Immigration Rules.

Legitimate expectation

55. The claim based on legitimateexpectation has a two-fold foundation. First, reliance on thewords of the Secretary of State’s letter: “You will be eligible toapply for settlement in the United Kingdom one month beforeyour leave expires”. Secondly, the fact that the accession ofPoland to the Union saw the end of the EC AssociationAgreement, the repercussions of which were not ameliorated bythe Secretary of State amending the Immigration Rules to permitthe appellants to benefit from aggregation (or, more accurately,by amending the Immigration Rules in April 2006 so as to removethe benefit of aggregation that had hitherto existed).

56. In GC (legitimate expectation – entryclearance) (Romania) [2005] UKAIT 0142, the decision issummarised in these terms:

The public interest in ensuring that persons subject toimmigration control do not enter the United Kingdom on a falsebasis can prevent a person from relying on a claim of legitimateexpectation so as to compel effect to be given to arepresentation that entry clearance would be granted to thatperson

The Tribunal said:

25. The Tribunal further finds that there is in any event a clearoverriding public interest which would defeat any legitimateexpectation the appellant might seek to assert. In Begbie, LawsLJ explored the scope of this principle at paragraphs 75 to 85 ofthe judgments. Essentially, Laws LJ held that the intensity ofjudicial review in cases of legitimate expectation will dependupon the extent to which the decision in question raisesimportant matters of general policy affecting the public at largeor a significant section of it. At paragraph 82, the learned LordJustice held that "the more the decision challenged lies in whatmay inelegantly be called the macro-political field, the lessintrusive will be the Court's supervision. More than this: in thatfield, true abuse of power is less likely to be found, since within itchanges of policy, fuelled by broad conceptions of the publicinterest, may more readily be accepted as taking precedenceover the interests of groups which enjoyed expectationsgenerated by an earlier policy."

57. These considerations are echoed in MO (Date of decision:applicable rules) Nigeria [2007] UKAIT 00057 which decided thatthe Immigration Rules applicable to an immigration decision are,in the absence of transitional provisions or any contrary

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legitimate expectation, the rules in force at the date of thedecision. The Tribunal said:

16. The appellant can gain nothing by putting his claim in thelanguage of legitimate expectation. His only legitimateexpectation is to have his application decided in accordance withthe Rules at the time the decision is made. Any other viewwould entail the conclusion that the Secretary of State’s powerto make policy by changing the Rules from time to time ishampered or fettered (see In re Findlay [1985] AC 318). (Itmight be thought that R v SSHD ex parte Hargreaves [1997] 1WLR 906 assists the appellant with its similar view expressed interms of the policy in force at the date of the application. It isclear, however, that in Hargreaves no point was taken about anyinterval of time between application and decision. The court’sview was that the applicant was not entitled to require that thedecision be made by reference to any pre-existing policy. LordWoolf MR’s summary of Hargreaves in R v North and East DevonHealth Authority ex parte Coughlan [2001] QB 213 at [75] refersonly to the right that applications be “considered individually inthe light of whatever policy was in force at the time”.Hargreaves is not authority for the view that the relevant policyis that in force at the time of any application as distinct from thatin force at the date of the decision.)

58. The decision in AA and others (Highly skilled migrants:legitimate expectation) Pakistan [2008} UKAIT 00003 containssimilar expressions of principle. Paragraphs 62 to 73 contain asummary of the scope of legitimate expectation and reiteratesthe requirements that an appellant has to establish:

i. a promise or representation made by the Home Officethat an applicant seeking an extension of leave in thefuture would be judged on the (then) rules and criteriarather than any changed provisions;

ii. if so, that it would be unfair and unlawful as an abuse ofpower to renege on that promise. [Our emphasis.]

59. On 10 April 2008, the Court of Appeal gave its judgment inOdelola v SSHD [2008] EWCA Civ 308. This was an appeal fromthe Tribunal’s decision in MO (Date of decision: applicable rules)Nigeria [2007] UKAIT 00057, see paragraph 57 above. It isimportant to state what the Court said about the nature of theclaim. The appellant asserted that the Secretary of State had nooption in law other than to decide her case according to theImmigration Rules as they stood on the date of her applicationbut she expressly disavowed her intention of putting her claim onthe basis of any legitimate expectation. This was no mereoversight. Buxton LJ set out why the appellant adopted thatapproach:

2. Although the matter was not explored before us, there wereplainly two reasons why the appellant took that position. First, asa matter of fact, there was nothing to ground any such

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expectation. The Secretary of State had neither given an expresspromise that she would decide applications on the basis of theImmigration Rules as they stood at the date of the application,nor had followed any regular practice to that effect: indeedcounsel for the Secretary of State told us, without contradiction,that it had been the Secretary of State's regular practice to actas she had done in the present case. Second, there was a strongforensic reason why the appellant had to avoid the language oflegitimate expectation. That jurisprudence lives in the world of,and attracts the rules of, administrative law. Once the case isseen as one of administration, the appellant is faced with theprinciple that administrative policy, such as expressed in HC 299,can change. As Lord Diplock put it in Hughes v DHSS [1985] 1 AC776 at p 788A:

Administrative policies may change with changing circumstances,including changes in the political complexion of governments. Theliberty to make such changes is something that is inherent in ourconstitutional form of government.

60. The appellant therefore had to assert that in deciding hercase according to the Immigration Rules, the Secretary of Statehad not made an error of an administrative law nature, but ratherhad infringed a right more akin to a right in private law, thatvested in the appellant at the moment at which she made herapplication, and of which she could not thereafter be deprived.No such right is to be found in the Immigration Rules themselves.The case accordingly had to be based on the assertion thatgeneral principles of substantive, not administrative, lawprevented the Secretary of State from acting inconsistently withthe appellant's right to have the case decided on the rules asthey stood at the date of the application. The Court describedthis as “a striking claim”.

61. The Court rejected that contention. Buxton LJ went on totreat the Immigration Rules as a public statement by theSecretary of State as to how she intends for the time being toexercise her powers to grant admission to non-nationals to theUnited Kingdom. There was therefore neither a legitimateexpectation that the Rules would not change nor a right akin to aprivate law right enforceable by an applicant to have hisapplication decided on the basis of the Rules as they existed asat the date of the application. In our own case, of course, theappellants’ contentions must go further. They do not complainthat the Rules changed between application and decision.Rather, they complain that, when they made their application,the Rules had been altered so that the requirements ofestablishing compliance were different and more onerous.

62. They can have no claim that the Secretary of State did notseek to enlarge the provisions of the 2006 Regulations to enablethem to succeed because the Regulations, (unlike theImmigration Rules), are a form of secondary, delegated or

24

subordinate legislation that have the full force of law being madeunder a law-making power granted by Parliament for thatpurpose. It was a matter for Parliament to determine whattransitional provisions were to be permitted in the Regulations.

63. Although no submissions were addressed to us on thisissue, we should mention the decision of Sir George Newman inHSMP Forum Limited v SSHD [2008] EWHC 664. The judgmentwas given on 8 April 2008 and, therefore, pre-dates the decisionof the Court of Appeal in Odelola by 2 days. The AdministrativeCourt Judge clearly did not have sight of the Court of Appeal’sdecision.

64. The Highly Skilled Migrant Programme ("HSMP") embodiedthe Secretary of State’s policy of encouraging people to come tothe United Kingdom, if they could meet the criteria outlined underthe scheme. Prospective candidates were informed that theprogramme would be reviewed on a regular basis and that thequalifying criteria might be adjusted from time to time. Thegovernment also confirmed that it retained the right to suspendor close the programme on an indefinite basis. This reservationwas clearly made in connection with future applications forpermission but the guidance went on to state: "Should this occurthose already in the United Kingdom, as skilled migrants, willcontinue to benefit from the programme's provisions." Thisstatement confirmed, at least in connection with closure orsuspension, that the benefits conferred by the scheme and to beenjoyed by skilled migrants already in the United Kingdom werecontinuing in character.

65. The application for judicial review arose out of changes tothe HSMP which came into force on 7 November 2006 and, moreparticularly, the application of the changes to those already inthe UK as skilled migrants. The new scheme was considerablymore onerous and the applicants were unable or less likely toqualify. There was large scale criticism of the government’sintroduction of the changes. A Parliamentary Joint Committee onHuman Rights conducted an inquiry into the changes in theImmigration Rules and concluded:

"…changing the relevant criteria to be met by those who havealready made their home in the UK on a clear understanding ofthe criteria that would be applied to them in the future is, in ourview, indisputably retrospective in effect."

66. The Judge in the Administrative Court treated the realquestion as whether, properly interpreted, the scheme conferreda commitment on the part of the government not to change theconditions in connection with the continuing implementation ofthe scheme. Although the point was obvious, Sir GeorgeNewman thought it necessary to emphasise that the defendant'sdiscretionary power to make changes to the scheme under which

25

highly skilled migrants would be admitted to the UK was notunder challenge. If the original scheme was not always fullyeffective, it was the fault of the scheme, not the applicants whosecounsel submitted (i) the existence of clear, expressrepresentations that the criteria for the grant of extensions wouldnot be changed so as to preclude settlement being obtained incircumstances where it had been represented it would beavailable; (ii) clear practice prior to November 2006 that revisionsto the scheme were not to affect those already on the scheme(iii) the conspicuous unfairness involved in encouraging migrantsto sever links with their home country and to make the UK theirmain home, by issuing statements about their future entitlementto remain in the UK and thereafter subsequently withdrawing theapplicability of the statements; (iv) the absence of any pressingpublic interest requiring that she should frustrate the expectationof highly skilled migrants who had met the criteria of the schemewhich they had joined and (v) the abuse of power involved infrustrating the migrants' path to final settlement in the UK whenthe migrants had already embarked on the journey.

67. The Secretary of State adopted the analysis of the positioncontained in a judgment of the Asylum and Immigration Tribunalin AA and others at paras 87 to 95. The Minister's letter bore astriking resemblance to the conclusion in paragraph 95 of the AITjudgment:

"Their only legitimate expectation is that their applications willbe judged on the basis of the rules and criteria under the HSMPin force at the relevant time, namely the date of any decision".

68. That said, the January 2002 guidance stated that even ifthe programme were suspended, "those already in the UnitedKingdom, as Skilled Migrants, will continue to benefit from theprogramme's provisions". Later guidance stated in answer to thequestion "What if the scheme changes?" and "I have alreadyapplied successfully under the HSMP. How does the revised HSMPaffect me?" Answer: “Not at all.”

69. The Judge found that the terms of the scheme, properlyinterpreted in context and read with the guidance and the Rules,contained a clear representation, made by the Secretary of Statethat once a migrant had embarked on the scheme, he wouldenjoy the benefits of the scheme according to the termsprevailing at the date he joined. This is the first stage of theapproach identified by the Tribunal in paragraph 73 of AA andothers namely establishing a promise or representation made bythe Home Office that an applicant seeking an extension of leavein the future would be judged on the (then) Rules and criteriarather than any changed provisions. Sir George Newman was

26

wholly unpersuaded that there were any significant macro-political reasons (repeating Laws LJ’s inelegant expression inBegbie) for including admitted HSMP migrants within thechanges. He concluded at paragraph 61:

I am unable to see a sufficient public interest which outweighsthe unfairness, which I am satisfied the changes visit upon thosealready admitted under the programme. In the circumstances, Iam satisfied that the terms of the original scheme should behonoured and that there is no good reason why those already onthe scheme shall not enjoy the benefits of it as originally offeredto them. Good administration and straightforward dealing withthe public require it. Not to restrain the impact of the changeswould, in my judgment, give rise to conspicuous unfairness andan abuse of power. Bad faith, rightly, has not been alleged, but Iam concerned about the repeated refusal to consider theundeniable evidence of hardship and the extent of the specialcommitment required of those migrants which has been placedbefore the defendant from a number of quarters. I am satisfied,following the three questions set out in Bibi, that the defendantproposes to act unlawfully and the Court should intervene.

70. It is clear that the decision in HSMP Forum Limited v SSHDwas decided on its own facts and, in particular, on the continuingnature and scope of the commitment entered into by theSecretary of State. There was a promise that applicants wouldreap the benefits irrespective of a subsequent change in theRules. There is no such material upon which the appellants herecan draw. Secondly, the decision has to be read in light of theCourt of Appeal’s observations in Odelola, although we see thetwo decisions as being compatible with each other. Thirdly, giventhe changes that Poland’s accession to the EU entailed, thenature of the obligations owed by the United Kingdomgovernment to Polish nationals had to be radically remodelled toreflect the structural changes that had taken place. TheAssociation Agreement could no longer survive among EuropeanState partners. Hence, the commitment made in the ‘You will beeligible to apply for settlement’ letter under the AssociationAgreement was bound to undergo revision and the nature of therevising hand was in the field of policy, certainly macro political incharacter.

71. For these reason we do not consider that the grant of entryclearance to the appellant under the Association Agreement orthe ‘You will be eligible to apply for settlement’ letter gave rise:

(a) to an obligation that the appellant was bound to begranted permanent residence under the EC AssociationAgreement notwithstanding the ending of the Agreementas part of the inevitable consequence of accession; nor,

(b) to an expectation that transitional provisions would affordpersons in the appellants’ position a right under European

27

legislation including Regulations or other secondarylegislation to retain the benefit of time spent in the UnitedKingdom under the Agreement; nor,

(c) to an expectation that, if the Immigration Rules permittedsuch a concession to some applicants, those concessionswould be extended in time to a point when the appellantsmight benefit from them.

Unlawful discrimination

72. In GN, the Tribunal also rejected theappellant’s submission that the application of the Directive andthe regulation amounted to discrimination on grounds ofnationality.

73. The Immigration Rules are filled withdistinctions between various categories of persons. Thesedistinction may arise by reason of age (e.g., a minor or a personover the age of 65); by reason of familial relationship (e.g., child,parent, cousin or other relative); by reason of the type ofapplication (e.g., visit visa, working holiday maker); by reason ofcountry of origin (e.g., ‘white list’ countries, non-visa countries) orglobal (e.g., EU and non-EU, commonwealth and non-commonwealth); between rich and poor (e.g., those with£250,000 to invest and those unable to maintain themselveswithout recourse to public funds).

74. Insofar as one category of personsatisfies different criteria in order to satisfy the requirements forentry clearance or leave to enter or remain, the Rules will renderapplications of one type more onerous than applications ofanother. Such distinctions discriminate between one group andanother. The root of the expression is merely the recognition ofdifferences. These distinctions arise because of a policy decisionthat certain categories of applications should satisfy differentrequirements. Such distinctions are in essence political decisionsmade as a result of a consideration of a wide variety of factors,known or unknown to an observer. The drawing of distinctions initself is not unlawful. Even if it is arbitrary it is not necessarilyunlawful so, for example, an Immigration Rule concerning 10years lawful residence or 14 years unlawful residence (or amixture of the two) might as easily be a rule which requires 5years lawful residence or 7 years unlawful residence.

75. In particular, a different scheme aimedat permitting Bulgarian or Romanian nationals to enter thecountry and requiring different conditions to be satisfied andoffering different benefits when compared with Polish nationalsclearly distinguishes between Bulgarian or Romanian nationals onthe one hand and Polish nationals on the other but that is not, in

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itself, unlawful. Were it to be so, there could be no distinctionsmade because any distinction excludes some from qualifyingwhilst permitting others to do so. It only becomes unlawful whenit distinguishes in cases where there is no difference save for adifference that is irrelevant in the circumstances of a particularcase (e.g., ‘only whites need apply’ or ‘men only’).

76. There is no evidence that thediscrimination (in its wider, classical sense) that distinguishes thescheme that applies to Polish nationals and the scheme that isoffered to Bulgarians or Hungarians renders either schemeunlawful. Indeed, there may well be some Bulgarians orRomanians who would consider the treatment afforded to Polishentrants as more beneficial. All we are prepared to say is thatthe schemes are different.

Other grounds

77. As the Court made clear in Odelola, albeit obiter, theconcept of legitimate expectation resonated in administrative lawprinciples and those principles were grounded in anacknowledgment that administrative policy might change. In thecourse of correspondence Ms Sempik wrote of the “contractualbasis upon which my client was offered settlement in the UnitedKingdom…” (see the letter of 9 July 2004 in relation to anotherclient, Mr Pasko). There was, of course, no contractualrelationship between the Secretary of State and Mr Pasko orindeed any of Ms Sempik’s clients, including the appellants. Thecontractual basis was amended in her later submissions to theletter of commitment being ‘quasi contractual’ in nature orcharacter, tantamount to a published policy. The submission wasdeveloped in paragraph 6 of the appellant’s Reply by reverting tothe previous submission that the right was contractual, asembodied in the letter, and containing the essential elements ofa contract, that is offer and acceptance and consideration. (Laterstill in the Reply, the letters of commitment were described by MsSempik as “quasi-contractual in character and irrevocable”).

78. We can see no justification for importing contractual orquasi-contractual obligations which have no place in the exerciseof powers by the Secretary of State either derived from statute orthe prerogative by which she permits non-nationals to enjoy entryto, or the right to remain in, the United Kingdom. In ourjudgment, this characterisation of the Secretary of State’s letteris unhelpful and, at worst, misleading in that it suggests a fetteron the administrative powers of the Secretary of State to changeher position which, for the reasons we have given, is untenable.The Immigration Rules as a whole (and these provisions inparticular) do not create a series of contracts with applicantswhich are actionable as private law rights. The rights that arisefrom them arise by statute (for example, the right of appeal to

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the Tribunal) or by engaging the process of good administrationthat the Administrative Court will review. In the wealth ofliterature on them, such a categorisation has never beenattempted before. It would be a situation similar to thatenvisaged by Buxton LJ in Odelola such that “there has been aconsistent pattern of unlawful behaviour on the part of theSecretary of State, albeit not previously discerned by lawyersworking in this field”. The Rules, as the Court made clear inOdelola, are an expression of the Secretary of State’s policy butan expression that the Secretary of State is entitled to alter. Forthe reasons we have given, we do not consider that any such clogexists on the Secretary of State’s freedom to amend theImmigration Rules.

79. It follows that the Immigration Judges who dismissed theappellants’ appeals reached the only conclusion properly open tothem on the facts. We have decided in paragraph 30 (iv) that,insofar as the appeals of Mr Wojtielewicz and Mr Liber weredismissed for failure to make an application within one month ofthe expiry of their leave, the Immigration Judge was in error butthe error was not material because it could have had no effectupon the outcome of their appeals. The decision in the appeal ofMs Nitecka reveals a material error of law which we will remedyon reconsideration by substituting a decision dismissing theappeal. The Immigration Judge in her case had allowed theappeal as a result of her finding that the Secretary of State wasbound to grant settlement to the appellant on legitimateexpectation principles. She also found that the Secretary of Statehad failed to deal with all applicants in a similar position in aneven-handed and fair way. As we have set out above neither ofthose propositions is sustainable.

80. None of the decisions envisages removal. All theappellants remain lawfully in the United Kingdom. Theappellants’ human rights are not engaged.

DECISION

[1] Mr Jozef Truchan, Mrs Beata Truchan (his wife), MsJoanna Beata Truchan and Bernard Jozef Truchan (theirchildren)

The original Tribunal did not make a material error of lawand the original determination of the appeal shall stand.

[2] Mr Janusz Wojtielewicz and Mr Boguslaw Ryszard Liber

The original Tribunal did not make a material error of lawand the original determination of the appeal shall stand.

[3] Ms Katarzyna Maria Nitecka

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(1) The original Tribunal made a material error of law.(2) Having found that the Immigration Judge made a material

error of law, we substitute a determination dismissing theappeal on all the grounds advanced.

ANDREW JORDANSENIOR IMMIGRATION JUDGE

11 July 2008

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