The Attorney General of Hong Kong v. Ng Yuen Shiu [1983] 2 AC 629 is a crucial case in administrative law. It establishes that promises or assurances by public authorities can create expectations that hold them accountable for their words. This case is significant for law students studying legitimate expectations in administrative law.

  • In the case of Attorney General of Hong Kong v N.G. Yuen Shiu [1983] 2 A.C. 629, it was held that where a public authority promises to follow a certain procedure before reaching a certain decision, good administration requires that it should act fairly and implement its promises so far that doing so does not interfere with its statutory duty.

Facts of the Case Attorney General of Hong Kong v N.G. Yuen Shiu

  • C, born in China, entered Hong Kong illegally from Macau in 1967.
  • In 1976, C was removed to Macau. C re-entered Hong Kong illegally and remained there until the current case. By 1980 C was the part-owner of a factory.
  • In 1980, Hong Kong changed its immigration policy, giving the Immigration Director powers to repatriate illegal entrants who had previously been allowed to remain once the urban areas without being arrested.
  • From the petitioning of Chinese illegal entrants, a senior immigration officer made an announcement that each illegal entrant case would be ‘treated on its merits.’
  • C was questioned by an immigration officer, detained, and had a removal order made against him without opportunity to argue the merits of his case.
  • After the High Court refused to quash the order, the Court of Appeal granted an order of prohibition preventing the removal order from being executed until C made his case.

Issues

  • Was the senior officer’s announcement, acting as a government representative, binding on the Immigration Director despite his powers not requiring him to hear each case on its own merits?

Held by the Privy Council (Hong Kong)

  • Finding for C, that the public promise made by a government representative was binding on the Immigration Director. As long as it created no conflicts with their statutory duty, a public authority must act fairly and abide by its promises to follow procedures before reaching certain decisions.

Lord Fraser

  • There is no doubt that the Immigration Director had power to order removal of illegal immigrants. There is no statutory provision that expressly requires an inquiry to be held before such an order is made. The only question raised is whether, at common law, C was entitled to a fair inquiry before a removal order was made against him.
  • The Court of Appeal rightly decided that there was no general right for an illegal alien to have a hearing in accordance with the rules of natural justice before a removal order is made against him.
  • C contended he 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.
  • In Reg v Liverpool Corporation, Ex parte Liverpool Taxi Fleet Operators’ Association [1972] 2 Q.B. 299, it was held that ‘this court is concerned to see that whatever policy the corporation adopts is adopted after due and fair regard to all the conflicting interests. The power of the court to intervene is not limited to cases where the function in question is judicial or quasi-judicial.’
  • “Their Lordships see no reason why the principle should not be applicable when the person who will be affected by the decision is an alien, just as much as when he is a British subject. The justification for it is primarily that, when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. The principle is also justified by the further consideration that, when the promise was made, the authority must have considered that it would be assisted in discharging its duty fairly by any representations from interested parties and as a general rule that is correct” [638E].
  • Their Lordships consider that this is a very narrow case on its facts, but they cannot differ from the view expressed by both courts below, to the effect that the government’s promise to the applicant has not been implemented. Accordingly, the appeal ought to be dismissed. The removal order should be quashed, but a fresh removal order can be made after a fair hearing is carried out.

Significance of the Case on the Development of the Law

This case significantly influenced the development of administrative law by elaborating on the doctrine of legitimate expectations:

  1. R v North and East Devon Health Authority, ex parte Coughlan [2001]: This case further developed the understanding that legitimate expectations can lead to substantive benefits.
  2. Council of Civil Service Unions v Minister for the Civil Service [1985]: Known as the GCHQ case, it outlined how procedural expectations are to be respected.
  3. R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008]: Reinforced that legitimate expectations can be enforced against the government if not conflicted by overriding interests.

Exam Questions and Answers

Below, you will find answers to questions that are most commonly asked based on this case.

What specific statements or actions by public authorities most commonly give rise to legitimate expectations?

Specific statements or actions by public authorities that commonly give rise to legitimate expectations include explicit promises, established policies, or consistent past practices that the authority has adhered to over time. For example, in R (on the application of Bhatt Murphy (a firm)) v The Independent Assessor [2008], it was held that a clear, unambiguous promise given by a government official can create a legitimate expectation. Such expectations are enforceable if the individual affected by the decision has relied on them to their detriment or if revoking the promise is deemed unfair.

How does the doctrine of legitimate expectations balance against statutory duties of public authorities?

The doctrine of legitimate expectations must be balanced against the statutory duties of public authorities, ensuring that any expectations created do not conflict with statutory obligations. For instance, in R (Nadarajah) v Secretary of State for the Home Department [2005], the Court of Appeal held that while authorities may generate legitimate expectations through their statements or conduct, fulfilling these expectations must not contravene existing laws or statutory duties. The courts will not enforce an expectation if doing so would impede the statutory duties of the authority.

In what ways has the interpretation of legitimate expectations impacted immigration law specifically following this case?

In immigration law, the interpretation of legitimate expectations following Attorney General of Hong Kong v Ng Yuen Shiu has notably impacted how visa and residency decisions are made, particularly when a public authority has made specific assurances. For example, in R (on the application of Rashid) v Secretary of State for the Home Department [2005], the court recognized that a failure to follow published policy without reasonable cause could infringe on an individual’s legitimate expectations. This precedent ensures that immigration authorities adhere to their stated policies, providing fairness and predictability to applicants.

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