One Pump Court pupils Joseph Maggs and Emma Talbot explore a recent Upper Tribunal and Court of Appeal decision concerning a Palestinian citizen of Israel and the law of substantive legitimate expectation. Joseph and Emma are currently completing their first six and will be available to take instructions from April 2026.

R (HI) v SSHD

On 16 December 2025, the Court of Appeal dismissed the application by the Secretary of State for the Home Department (SSHD) for permission to appeal against the decision of the Upper Tribunal (UT) in R (HI) v SSHD JR-2024-LON-002059. One Pump Court’s David Chirico KC and Daniel Grütters acted for HI in both the UT and the Court of Appeal, instructed by the Joint Council for the Welfare of Immigrants.

The UT found that when withdrawing the refusal of HI’s asylum claim the day before his appeal hearing in the First-Tier Tribunal (FtT) with a view to granting him asylum, the representations made by the SSHD gave rise to a substantive legitimate expectation that he would be granted refugee status. The SSHD failed to establish that it was fair and proportionate to resile from her promise, and accordingly the UT ordered the SSHD to grant HI refugee status.

Background

HI, a Palestinian Muslim with Israeli citizenship, was born in Israel in 1999 but has lived in the UK since 2000, save for 14 months spent in Israel between 2014 and 2015. As a child he was diagnosed with Familial Mediterranean Fever and Ehlers-Danlos syndrome and suffered from recurrent mental ill-health, although his symptoms were managed with the assistance of his support network in the UK.

While HI’s mother and siblings were granted indefinite leave to remain in 2018, his applications for leave were refused. He claimed asylum on 12 September 2019 on the grounds that he would face persecution from the Israeli authorities for his pro-Palestine political opinions, which he expressed sur place on social media and at demonstrations, and that he feared non-state actors on account of his ethnicity (Palestinian) and religion (Islam). He also made an Article 8 claim. The SSHD refused both on 23 October 2022.

The substantive legitimate expectation

HI appealed the refusal decision to the FtT and submitted three separate bundles of evidence, including reports from multiple sources regarding the mistreatment of Palestinians in Israel both before and after 7 October 2023 (the date of the Hamas-led attack), set against evidence of his physical and mental vulnerability. The SSHD failed to review the decision in accordance with standard FtT directions and HI applied for the appeal to be listed for a hearing, citing the impact of the delay on his mental health.

On 11 March 2024, the day before the hearing, a Senior Caseworker and a Home Office Presenting Officer (HOPO) reviewed the merits of HI’s asylum claim and decided that his appeal was likely to succeed. The refusal decision therefore fell to be withdrawn and refugee status granted, subject only to standard security checks. The HOPO made three relevant communications that day (set out in detail at UT ¶¶26-31), which were said to have given rise to a substantive legitimate expectation (SLE) that HI would be granted status:

(1) An email to the FtT and HI’s solicitors confirming that: “the [SSHD] wishes to grant [HI] Refugee Status and thereby seeks permission to withdraw their decision”.

(2) A letter to the FtT and HI’s solicitors confirming the same: “This matter has been reviewed ahead of the scheduled hearing. […] In the light of the review, it has been concluded the decision to refuse is no longer appropriate and the immigration decision is therefore withdrawn. It is anticipated that refugee leave will be granted, subject to any further checks which are required and the appellant providing any documents requested. If leave is not granted a new decision will be made.”

(3) A telephone call to HI’s solicitors reassuring them that refugee status would be granted, subject only to security checks.

A FtT caseworker had meanwhile decided to treat the appeal as withdrawn, which was upheld by FtT Judge Mills who noted that there was no reason to believe that the SSHD was being “disingenuous” about her intentions (UT ¶31). HI made no subsequent challenge to the FtT’s decision, focussing instead on urging the SSHD to implement her decision expeditiously.

The SSHD resiles

Internal Home Office communications disclosed later under the duty of candour (reviewed in detail by the UT at ¶¶32-42) show that in addition to the HOPO and Senior Caseworker, multiple senior Home Office officials contemporaneously understood that a binding “withdrawal to grant” (as opposed to a “withdrawal to reconsider”) decision had been made on 11 March 2024. By mid-April 2024 the position had, however, been reversed.

In an email to other senior officials on 16 April 2024, Rachel Bickerton, head of Asylum Decisions Policy, asserted that HI’s was “a very weak claim” and thereafter the SSHD decided that a “withdrawal to reconsider” decision had been made – or, if it was a “withdrawal to grant” decision, set about resiling from it (UT ¶42).

On 23 May 2024 the SSHD issued a fresh decision refusing HI’s claim on its merits. The decision “completely ignored” the promises made on 11 March 2024 and did not provide any justification for resiling from them (UT ¶43). HI’s solicitors began pre-action correspondence and on 2 August 2024 HI applied to the UT for judicial review of the May decision on two grounds:

(1) The SSHD’s decision amounted to an unlawful frustration of the SLE created on 11 March 2024.

(2) The SSHD’s delay in granting HI asylum was irrational, unreasonable and/or incompatible with his Article 8 rights.

The SSHD promptly withdrew the May decision before issuing a further refusal decision on 23 September 2024. This was in substance identical to the May decision, save for a few additional paragraphs purporting to set out the reasons for resiling from the promise to grant refugee status. These amounted to different ways of saying that the decision was wrong on the merits, but “no detail supporting these assertions was provided” (UT ¶49). HI amended his grounds of claim to cover the September decision.

Upper Tribunal judgment

HI’s claim proceeded to a rolled-up hearing on 8 April 2025, where the UT granted the SSHD an adjournment to enable her to file and serve a witness statement addressing the reasons for the decision to not give effect to such representation as were made on 11 March 2024 that HI would be granted asylum status subject only to security checks.

On 28 July 2025, the claim returned for the rolled-up hearing before the UT, now with an additional witness statement from Ms Bickerton. On 12 September 2025, the UT handed down its detailed and carefully reasoned judgment, allowing the claim on both grounds.

At ¶¶60-67 the UT gave an overview of the relevant case law on SLE (all cases unrelated to immigration and asylum), including Lord Kerr’s summary in Re Finucane’s application [2019] UKSC 7 at ¶¶58-62. At ¶68 the UT distilled the four-stage approach to be taken in SLE cases:

(1) Representations: To establish the asserted SLE the Applicant bears the burden of proving that the Respondent made representations which were clear and unambiguous in relation to the granting or continuation of the claimed substantive benefit or right (which may be conditional or unconditional) which gives rise to the SLE.

(2) Scope of SLE: The Applicant bears the burden of proving the terms and the scope of the asserted SLE arising from the representations.

(3) Class of beneficiaries: The Applicant bears the burden of proving that he/she/it was the person to whom the representations were directly made or was within the class of persons who were entitled to rely upon them or that it was reasonable for the Applicant to rely upon them without more.

(4) Fair Justification: Good administration requires public authorities to be held to their promises/representations. However, the Applicant will not be able to rely on a proven SLE arising from the representations if: (a) the Respondent provides sufficient justification. That may for instance be a clear and obvious mistake made leading to the representations or an overriding interest arising from the duties and responsibilities involved in the proper discharge of their functions or a change in the macro-political situation or policy; and (b) the Court considers that the Respondent’s justification for overriding the SLE of the applicant was fair and proportionate in all of the circumstances.

Before applying the law to the facts, the UT made a number of preliminary, contextual findings. First, that withdrawal is a “substantive step in the appeal with real consequences” and not a “backdoor route to obtain further time” (UT ¶69). Second, with reference to Awuah and Others (Wasted Costs Orders – HOPOs – Tribunal Powers) [2017] UKFTT 00555 (IAC), that a HOPO acts as the alter ego of the SSHD in appeal proceedings and has the authority to make binding withdrawal decisions and to communicate with the appellant accordingly (UT ¶¶70-71, ¶76). Third, that the SSHD’s contention that asylum decisions can only be made by one department (Asylum Operations) and not another (Appeals, Litigation and Administrative Review) was not supported by any law or policy, and was belied by the contemporaneous view of HI’s solicitors, the FtT and the majority of the Home Office officials who had been involved in this case (UT ¶¶72-75).

The UT dealt briefly with the creation of the SLE:

(1) The representations of 11 March 2024 amounted to a “clear and unambiguous” undertaking by the SSHD to grant HI’s asylum claim, subject only to security checks. It was significant that the SSHD opted for the “withdrawal to grant” and not the “withdrawal to reconsider” route, both of which were open to her under rule 17 of the FtT Rules (UT ¶¶77-78).

(2) The scope of the SLE was also clear and unambiguous, and it was immaterial that security checks were a condition of the grant.

(3) HI was plainly the beneficiary (UT ¶¶79-80).

HI had discharged the burden of proof in stages one to three.

The core issue of fair justification (stage four) was dealt with at greater length. The UT gave short shrift to the SSHD’s attempt to evade the question by asserting that there is no difference between a “withdrawal to grant” and a “withdrawal to reconsider” decision. This was “wrong in fact, wrong in law and inappropriate both in the context of the FtT Rules r.17 and the established practice” (UT ¶82).

The UT carefully considered the justifications put forward by the SSHD. Her submission that the ‘withdrawal to grant’ decision was irrational was not made out. The decision was based on “an evaluative judgment of multifactorial evidence” (UT ¶85), including country conditions evidence pre-and post-dating 7 October 2023 and unchallenged medical evidence of HI’s personal circumstances and vulnerabilities. It was therefore reasonably open to the decision makers on 11 March 2024 to conclude that, in his particular case, HI was reasonably likely to suffer treatment amounting to persecution on return to Israel (UT ¶86).

The fact that another Home Office official, in this instance Ms Bickerton, took a different view of the merits of the claim was not a fair justification (UT ¶83). The reasons set out in the September decision, that the claim lacked merit, also fell short of fair justification because they contained no detail (UT ¶84).

That the scope of the SLE was limited to one person, a factor highlighted in Finucane at ¶58, was also relevant. Although not a precondition of an SLE, HI’s reliance on the SLE and the consequent detriment pointed towards unfairness. He lost the opportunity for judicial determination of his appeal which, had it gone ahead, was highly likely to succeed because the HOPO’s instructions were to concede the claim (UT ¶87). The SSHD also failed to point to any countervailing change in policy or macro-political objectives (UT ¶85).

The SSHD had therefore failed to show that it was fair and proportionate to resile from the SLE.

Court of Appeal decision

The SSHD successfully applied for a stay of the UT’s order requiring the SSHD to grant HI refugee status, and sought permission from the Court of Appeal on four grounds:

(1) The UT erred in finding that unfairly resiling from a SLE can lead to a mandatory order requiring the SSHD to grant refugee status, Refugee status can only be granted where a claim objectively satisfies the Convention definition.

(2) The UT adopted an incorrectly narrow view of the circumstances in which it is open to the SSHD to depart from a SLE. The SSHD was entitled to resile from the SLE given her conclusion that HI did not satisfy the Convention definition.

(3) The UT erred in finding that a) the telephone conversation of 11 March 2024 gave rise to a SLE and b) that HI relied on that conversation to his detriment.

(4) The UT erred in finding that a formal or authoritative decision was made on 11 March 2024 to grant HI refugee status.

In an order dated 16 December 2025, Lady Justice Andrews refused permission on all grounds. None of them had a realistic prospect of success and there were no other compelling reasons to grant permission. In her reasons she began by accepting that the UT’s findings on the SLE were “unassailable” (CoA ¶2).

Ground 1 therefore failed because it was based on a “false premise” and “mischaracterisation” of the UT’s decision (CoA ¶3). The UT did not compel the SSHD to grant refugee status because of historical unfairness or public law error. It found that the SSHD had already made the substantive decision through her officials (see UT ¶79). TN (Afghanistan) v Secretary of State for the Home Department [2015] UKSC 40 therefore did not apply. Ground 4 failed for the same reason (CoA ¶6).

Ground 2 similarly failed because it was clear from UT ¶81 that the correct approach was taken to determining whether resiling from the SLE was justified, namely fair justification and not whether the withdrawal to grant decision underlying the SLE itself was “irrational” (CoA ¶4).

Ground 3(a), as well as being an argument that was not before the UT, failed because there was no principled basis for distinguishing the telephone conversation from the other representations made on 11 March 2024. Ground 3(b) failed because the FtT was still seized of HI’s appeal after the HOPO’s telephone call. HI had the opportunity to appeal the FtT’s decision to consent to the withdrawal of his appeal, but renounced it on the basis of the HOPO’s representations. The evidence on this ground was “all one way” (CoA ¶2).

Commentary

Towards the end of its decision (see UT ¶¶89-94) the UT sets out a clear summary of the general principles that the tribunals will apply when deciding whether a “withdrawal to grant” decision by the SSHD gives rise to an enforceable expectation that the appellant will be granted refugee status:

(1)  In appeals before the FtT, the representations made by HOPOs in the course of proceedings, whether to appellants or the Tribunal, are binding on the SSHD.

(2)  This includes the authority to make both “withdrawal to reconsider” decisions and “withdrawal to grant” decisions.

(3)  The “further checks” which follow a “withdrawal to grant” decision are well-established to be related to criminality and security and, significantly, do not involve a reconsideration of the claim on its merits.

(4)  Hence if a HOPO withdraws a decision and informs the Tribunal or the appellant that leave will be granted subject to “further checks”, this creates a SLE that leave will be granted, absent anything relating to criminality and security which would justify not granting leave.

(5)  If the SSHD subsequently reconsiders the claim on its merits and refuses it for some other reason, she has frustrated the SLE. Any such frustration must be justified in accordance with the principles which apply to the frustration of SLEs (see UT ¶68).

(6)  Crucially for HI, the fact that a different official within the Home Office disagrees with the “withdrawal to grant” decision is unlikely to constitute a fair justification.

This case is also a particularly stark example of bureaucratic cruelty by the Home Office.  Compounding the delays in progressing HI’s appeal, the SSHD sought to override the decision of her own officials that he met the Refugee Convention definition, causing prolonged suffering for HI and unnecessarily taking up court time and public money.  It is concerning that media reports and the political pressure this brought to bear on the Home Office may have been allowed to interfere with asylum decision making.

As a public law jurisdiction, the UT was not asked to, and did not make, any findings in respect of country conditions in Israel. Nevertheless, it is of note that Home Office decision makers concluded that a Palestinian citizen of Israel could suffer persecution on return, and that both the UT and Court of Appeal accepted that it was a rational decision based on all the evidence before them. The 11 March 2024 decision minute (quoted at UT ¶32) is worth reading for practitioners, as it demonstrates the interaction between HI’s particular vulnerabilities and the “substantial evidence of systematic discriminatory practises against Palestinians in Israel: apartheid, forced removal, restrictions of rights and exclusion from society.”