When a client argues “but the Home Office told me…”, things usually go downhill pretty quickly. If it wasn’t in writing, it didn’t happen! Emiantor v Secretary of State for the Home Department [2020] EWCA Civ 1461 is a classic example of how difficult it can be to hold the Home Office to something that was never written down.

Assurance that deportation case was closed

Mr Emiantor was jailed for 18 months for attempted insurance fraud in November 2015. The length of his sentence triggered automatic deportation proceedings under section 32(5) of the UK Borders Act 2007. Whilst he was appealing the conviction in the criminal courts, the Home Office chucked him into a detention centre — something it shouldn’t have done, since the 2007 Act says that a deportation order can’t be made against someone appealing their conviction. 

This was the start of a long road for Mr Emiantor. He found a lawyer and began proceedings to liberate himself from detention, which seemed to “cause a flurry of activity at the Home Office”. Realising the error of their ways, officials withdrew the deportation notice and Mr Emiantor was released. 

When he then pitched up at the Lunar House reporting centre, he was told by the officer there that he was no longer subject to deportation and the case was closed. He later agreed on compensation for his unlawful detention. So exhilarated was Mr Emiantor on settling matters that he wrote a letter to the court saying:

… The Defendant no longer seek[s] to pursue deportation claim against him, having informed Claimant on 06 December 2016 at her premises that he is no longer subject to deportation nor require[d] to report to the Defendant. All restrictions subject to deportation having been cancelled …

As it turned out, he had got it very wrong. A couple of months later, in July 2019, the Home Office began fresh deportation proceedings based on the same conviction.

Legitimate expectation challenge to renewed deportation

What Mr Emiantor had been told at the reporting centre formed the basis for a “legitimate expectation” argument: that the Home Office was now barred from deporting him since they’d said the case was closed.

The main problem with that argument, said Lord Justice Floyd, was that if it were true, it would mean the Home Office had agreed to shirk its duty to deport foreign criminals, which was in the public interest. That was “inherently unlikely”. Even though the Secretary of State had agreed that Mr Emiantor was unlawfully detained for a little while:

It would not have been a natural response… for her to decide that in no circumstances would she deport the appellant in the future, particularly as she was under a statutory duty to do so.

The words used by the officer at the Lunar House reporting centre were too vague. The court said that:

It would have required a statement by the Home Office official at Lunar House in the very clearest terms to establish an expectation that there was no question at all of any future attempt to deport. As I have explained, however, the words and deeds of the official were also capable of relating solely to the previous attempt to deport. They were not so clear as to have the meaning advanced by the appellant. 

So Mr Emiantor lost, and now needs to fight his deportation in the tribunal system. 

This is not the first case like this and we’ve previously seen how difficult it can be to prove that a statement by the Home Office is “sufficiently clear and unambiguous or devoid of qualification” to form the basis of a legitimate expectation. It’s hard enough if things are written down (like in this case where a migrant tried to rely on a chat transcript with the Business Helpdesk) but it’s even harder when all you’ve got is someone at the Home Office telling you something in person or over the phone. I’m pretty sceptical that a bloke sitting at reception can unilaterally bind the whole of the Home Office when it comes to deportation proceedings. Still, Mr Emiantor’s pro bono counsel gave it a good go and was praised by the Court of Appeal for his “very attractive and well-constructed” argument and “outstanding assistance”.