Re Emmanuel et Al

• Jurisdiction: Anguilla
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Judge: Hariprashad-Charles, J.
• Judgment Date: 22 February 2002
• Neutral Citation: AI 2002 HC 5
• Docket Number: Civil Suit No. 112 of 2000
• Date: 22 February 2002

High Court

Hariprashad-Charles, J.

Civil Suit No. 112 of 2000

Re: Emmanuel et al

Appearances:

Mr. Courtney Abel for the applicants.

Mr. Stanley E. Reid for the respondents.

Constitutional law - Residence in island — Appeal against decision not to extend stay in Anguilla — Guyanese worked in Montserrat and after volcanic eruptions was relocated to Anguilla with her husband who had never worked in Montserrat — After three years the husband was denied an extension of stay in the island — The Chief Minister had previously written and informed that the couple would be accorded the same rights and privileges granted to relocated Montserratians — The mere fact that a spouse resides in Anguilla does not give rise to a legitimate expectation that the appellant could stay in the island indefinitely — The Chief Minister also had no legal authority to issue letters according rights and privileges — Appeal dismissed.

Hariprashad-Charles, J.

1 On 22nd day of February 2002, I gave judgment in favour of the respondents and indicated that the reasons therefor would be reduced into a written judgment subsequently. I do so now.

2 On or about May 1995, Marissia Paul, a Cosmetologist by profession left her native Guyana to seek her fortunes elsewhere. She arrived in the British Colony of Montserrat and started working there when the volcano begun erupting in 1996. On or about July 1996, she returned to Guyana and married Wayne Emmanuel also known as Wayne Adonis. In January 1997, Marissia Emmanuel nee Paul [the first-named applicant] was among the persons being evacuated from Montserrat. She alleged that she was offered a package by the British Government to live and work in the United Kingdom. She declined it. Instead, she took advantage of an invitation to live and work in Anguilla. Having accepted that invitation she proceeded to Anguilla on or about January 1997. Her husband, Wayne Emmanuel [the second-named applicant] never lived or worked in Montserrat but subsequently joined her in Anguilla. He arrived in Anguilla on or about the 17th day of January 1997 and worked as a steel man in the construction industry.

3 About three and one-half years later, on 10th day of July 2000, the second-named applicant was denied an extension of his stay in the island. This was confirmed by correspondence on 10th day of October 2000. This action arises out of the decision of 10th day of July 2000.

4 These proceedings were instituted to clarify the immigration status of the applicants wherein they sought the following reliefs:

• (i) A Declaration that the applicants are accorded all the rights and privileges afforded to Montserratians in the aftermath of the volcano eruptions in 1995 and have a legitimate expectation to be entitled to live and work in Anguilla and accorded the same Immigration and Labour status as that granted to said Montserratians.

• (ii) A Declaration that the decision of the Chief Immigration Officer dated on or about 10th day of July 2000 and/or that of the Chief Minister and Minister of Home Affairs dated on or about the 10th day of October 2000 was unlawful and in breach of natural justice.

• (iii) An Order of Certiorari to remove into this Honourable Court and to quash the decision of the Chief Immigration Officer dated on or about 10th day of July 2000 and/or that of the Chief Minister and Minister of Home Affairs dated on or about 10th day of October 2000 refusing an extension of time to stay in Anguilla to the second named applicant.

• (iv) An Order of Prohibition directed to the Chief Immigration Officer prohibiting him from removing or causing the applicant to be removed from or required to leave Anguilla and

• (v) Alternatively, an Order of Mandamus directed to the Chief Immigration Officer and/or the Chief Minister and Minister of Home Affairs Government of Anguilla requiring him to hear and determine according to law an application by the second named applicant for an extension of stay.

5 The applicants alleged inter alia that the Chief Minister and Minister of Home Affairs failed to hear and determine the second-named applicant's application for extension of stay according to law and that there was a denial of natural justice. The applicants next alleged that they had a legitimate expectation to be deemed and treated as other persons from Montserrat for the purposes of the Immigration and Passport Ordinance and the Control of Employment Ordinance that the permission to work granted by the Chief Minister would not be withdrawn or revoked without the applicants being provided with an opportunity to be heard. They also contended that having accepted the invitation of the Government of Anguilla to live and work in Anguilla instead of the package offered by the British Government to live and work in the UK, it is unconscionable for the respondents to now seek to deny the applicants the right to live and work in Anguilla outside of the work permit Regulations.

THE ISSUES

6 In the present matter, some critical issues arise for consideration namely:

• (i) Whether the applicants have a legitimate expectation to live and work in Anguilla outside the regulatory framework?

• (ii) Whether the procedure adopted by the Chief Immigration Officer in refusing the extension of stay to the second-named applicant was proper?

• (iii) Whether the Chief Immigration Officer took into account all material considerations in refusing that extension?

• (iv) Whether it is now unconscionable for the respondents to deny the applicants the right to live and work in Anguilla outside of the Work Permit Regulations?

• (v) Whether the Rules of Natural Justice were breached?

LEGITIMATE EXPECTATION

7 A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation must plainly be a reasonable one: Attorney General of Hong Kong v. Ng Yuen Shiu [1983] A.C. 629.

8 In Council of Civil Service Unions and others v. Minister for the Civil Service [1984] 3 All E.R. 935, Lord Fraser of Tullybelton at pages 943–944 said: “But even where a person claiming some benefit or privilege has no legal right to it, as a matter of private law, he may have a legitimate expectation of receiving the benefit or privilege, and if so, the courts will protect his expectation by judicial review.

9 And in O'Reilly v. Mackman [1982] 3 All E.R. 1124, Lord Diplock said: “Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue.”

10 Accordingly, legitimate expectations are capable of including expectations which go beyond enforceable legal rights, provided they have some reasonable basis. The expectations may be based on some statement or undertaking by, or on behalf of, the public authority which has the duty of making the decision, if the authority has, through its officers, acted in a way that would make it unfair or inconsistent with good administration for him to be denied such an inquiry.

11 In Attorney General of Hong Kong v. Ng Yuen Shiu (supra) Lord Fraser of Tullybelton at page 634 (delivering the Judgment of the Privy Council) had this to say:

“There is no doubt that the Director of Immigration had power under section 19 (in the substituted form provided for in the Ordinance of 1980) to order removal of illegal immigrants. There is also no doubt that neither that section, nor any other statutory provisions, expressly requires an inquiry to be held before such an order is made. The only question raised in the appeal is whether, at common law, the applicant was entitled to have a fair inquiry held before a removal order was made against him.”

12 Lord Fraser then answered the question in these words (at page 636):

“The narrower proposition for which the applicant contended was that a person is entitled to a fair hearing before a decision adversely affecting his interests is made by a public official or body, if he has ‘a legitimate expectation’ of being accorded such a hearing. The phrase ‘legitimate expectation’ in this context originated in the judgment of Lord Denning, M.R. in Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch 149 at page 170. It is in many ways an apt one to express the underlying principle, though it is somewhat lacking in precision. In Salemi v. MacKellar (No 2) (1977) 137 C.L.R. 396 at page 404, Barwick, C.J. construed the word ‘legitimate’ in that phrase as expressing the concept of ‘entitlement or recognition by law.’ So understood, the expression (as Barwick, C.J. rightly observed) ‘adds little, if anything, to the concept of a right.” With great respect to Barwick, C.J., their Lordships consider that the word ‘legitimate’ in that expression falls to be read as ‘reasonable.’ Accordingly ‘legitimate expectation’ in this context are capable of including expectations which go beyond enforceable legal rights, provided that they have some reasonable basis: see Reg. v. Criminal Injuries Compensation Board, Ex parte Lain [1967] 2 Q.B. 864. So it was held in Reg. v. Board of Visitors of Hull Prison, Ex pane St. Germain (No. 2) [1979] 1 W.L.R. 1041 that a prisoner is entitled to challenge, by judicial review, a decision by a prison board of visitors, awarding him loss of remission of sentence, although he has no legal right to remission, but only a reasonable expectation of receiving it.”

13 Learned counsel for the applicants submitted that the second-named applicant had been denied his legitimate expectation to have his stay extended in Anguilla. Counsel argued forcibly that the Chief Minister and the Minister of Home Affairs in purporting to determine the second-named applicant's application for extension of stay failed to take into account material...