Legitimate Expectations and the Search for Principle: Reflections on Abdi &(and) Nadarajah
![handle is hein.journals/judire11 and id is 281 raw text is: [2006] JR
Legitimate Expectations and the Search
for Principle: Reflections on Abdi &
Nadarajah
Mark Elliott*
Centre for Public Law, University of Cambridge
1. The recent decision of the Court of Appeal in R (Abdi & Nadarajah) v Secretary of State
for the Home Department [2005] EWCA Civ 1363 concerned two asylum-seekers who
sought to challenge steps taken to deport them respectively to Germany and Italy, the
states responsible under international arrangements for determining their asylum
claims. They argued that they fell within a Home Office policy which generally
required certain asylum claims (including theirs) to be determined domestically. Abdi,
whose mother had been granted asylum in 2000, pointed to the part of the policy con-
cerning cases where the applicant is an unmarried minor and a parent is in the United
Kingdom. Nadarajah, whose wife was already in the United Kingdom, appealing
against an adverse asylum decision, relied on the undertaking to deal domestically
with claims where the applicant's spouse is in the United Kingdom.
2. Neither appellant was successful in the Court of Appeal. Abdi failed on the (legally, if
not, in the event, factually) straightforward ground that the Secretary of State had been
entitled to conclude that she was not a minor at the relevant time. Nadarajah's case,
however, raised a more difficult point of law. Although the court thought that Stanley
Burnton J had rightly concluded at first instance' that the original version of the policy
extended to persons in Nadarajah's position - that is, spouses of failed asylum-seekers
who were going through the appeal process - it accepted that the Home Secretary had
not intended it to operate thus. The question for the Court of Appeal was whether he
was legally permitted to apply a new version of his policy, excluding spouses of asy-
lum-seekers in receipt of an initial adverse decision, to the obvious disadvantage of
Nadarajah. Such action, said Laws LJ,2 disclosed no abuse of power, given the Home
Secretary's honest but mistaken belief that the original version of his policy excluded
those in Nadarajah's position, and the absence of any reliance by the appellant on the
original policy. The frustration of any legitimate expectation occasioned by the Home
Secretary's conduct therefore involved no unlawfulness.
3. However, Laws LJ acknowledged (at para. [67]) that the reasoning that had yielded
this conclusion was unsatisfactory - he thought it little distance from a purely sub-
jective adjudication - and therefore sought to articulate a more principled basis for
deciding such cases. This search for principle is to be welcomed, and three of the issues
which Laws LJ raised in the course of the decision will be considered in this paper. It
will be argued that he was entirely correct to express scepticism about the usefulness
of the abuse of power concept in this regard. We will then go on to evaluate the sugges-
tions which he made concerning the doctrine of proportionality and the distinction
between substantive and procedural issues in legitimate expectation cases.
This is a version of a paper presented to the Administrative Law Bar Association on 7 March 2006.
I am grateful to Richard Clayton QC, Martin Matthews, Philip Sales QC and lain Steele for their helpful com-
ments on a draft. The usual disclaimer applies.
l [2002] EWHC 2595 (Admin) [2003] Imm AR 373.
2 With whose judgment Thomas LJ and Nelson J concurred.](ViewImageLocal?handle=hein.journals/judire11&div=43&collection=journals&method=preview&ext=.png&size=3)
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Legitimate Expectations and the Search for Principle: Reflections on Abdi &(and) Nadarajah
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