Substantive & Legitimate Expectations

How can a legitimate expectation be created?

- A promise/undertaking by a public authority - An established practice of a public authority

What are the requirements of a substantive legitimate expectation? (4)

- Promise must be made by a public authority - Must be a promise and the breach of it must amount to an abuse of power - Undertaking must be pressing and focused. It must be made to a small group of people - Applicant must know of the promise

What is a legitimate expectation?

A situation whereby a person may reasonably or legitimately, expect something something to happen in a particular way

- The government made a promise that illegal immigrants would be interviewed individually and not deported en masse: A PROMISE BY A PUBLIC AUTHORITY - The government made a promise not to do something

AG of Hong Kong v NG Yuen Shiu

- A statement made by a politician as to his intentions, if he were to be elected, is not a legitimate expectation - Even if the promise directly affects people, it's not a legitimate expectation - Before an election, an opposition party is not a public authority

Begbie

- Claimant sought judicial review of changes to the scheme for the compensation for the victims of a miscarriage of justice - Application was refused - Cannot simply relate to a change of policy - There must be a sense of an abuse of power

Bhatt Murphy

- Court must decide whether to frustrate the expectation is so unfair that to change it, it would amount to an abuse of power - The court needs to weigh up the requirements of fairness against any overriding interest relied upon for the change of policy - HELD: In this case, frustration of a legitimate expectation is an abuse of power

Coughlan

- Question whether the UK border agency had acted unlawfully by refusing the applicant's visa extension application without allowing him to submit certain pieces of information - HELD: the agency's refusal was unlawful because he was not invited to repair the mistake

Mandalia

What form of legitimate expectation was GCHQ?

Procedural expectation: An established practice that workers could join trade unions

What test is applied if there is a legitimate expectation?

Proportionality test

What is the proportionality test?

The more specific, pressing and focused the undertaking is, the more likely it is to be enforced

What is a procedural legitimate expectation?

The presumption that a public authority will follow a certain procedure in advance of a certain decision being taken

What is a substantive legitimate expectation?

Where an authority makes a lawful representation that an individual will receive some kind of substantive benefit