Schmidt v Secretary of State for Home Affairs (1968)

In Hohfeld's scheme a liberty and a claim are different things, and one can exist without the other. This case is a clean illustration from the case law. An alien may be permitted to come and stay, but the court held he has no right to enter or to remain beyond the time permitted: the Crown may say no, and he has nothing he can enforce against that refusal. What he has, at most, is permission; what he lacks is a claim on which a court will act.

Widgery LJ puts it in the language of rights directly: an alien seeking to land "has no right of any kind to do so unless and until permission is granted." Once you see that there is no claim, the rest of the case follows — no right, so nothing to be heard about, so no duty of natural justice.

The case is also famous in administrative law as the place where Lord Denning first spoke of a "legitimate expectation".

Two United States citizens, Andrew Schmidt and Joseph Murranti, were students at the Hubbard College of Scientology at East Grinstead, Sussex. They sued on behalf of themselves and 50 other alien students there. They had been allowed into the United Kingdom to study, for limited periods. When those periods were running out, the College applied for extensions of their stay.

Before the Home Secretary replied, the Minister of Health told the House of Commons that the Government regarded Scientology as socially harmful and that foreign nationals already in the country to study at a Scientology establishment would not be given extensions of stay. The Home Secretary then refused the extensions, while extending their stay to 30 September 1968 so that they could arrange to leave.

The students sued, saying the refusal was for an unauthorised purpose and that they had not been treated fairly. The Home Secretary applied to strike the action out as disclosing no reasonable cause of action. Ungoed-Thomas J struck it out, and the students appealed.

1. Did the Home Secretary refuse the extensions for an unauthorised purpose?
2. Did he unlawfully fetter his discretion by adopting a general policy about Scientology?
3. Was he bound by natural justice to give the students a hearing before refusing?
4. If he had a duty to act fairly, did he act unfairly?
5. Should the statement of claim be struck out?

The appeal was dismissed with costs (Lord Denning MR and Widgery LJ; Russell LJ dissenting). Leave to appeal to the House of Lords was refused.

Lord Denning MR

No right to enter. Lord Denning stated his starting point: "at common law no alien has any right to enter this country except by leave of the Crown, and the Crown can refuse leave without giving any reason." The common law had since been overtaken by the Aliens Acts and the Orders under them, which gave the Secretary of State ample power to refuse admission, to grant leave for a limited period, or to refuse to extend a stay.

Purpose. Counsel for the students argued the power could be used only for the safety of the realm, observance of the law, and preservation of accepted standards of morality. Lord Denning rejected that limit: "I think the Minister can exercise his power for any purpose which he considers to be for the public good or to be in the interests of the people of this country." The Minister's purpose had been openly stated and was justifiable.

Policy. A body may adopt a policy and announce it, so long as it will listen to reasons why it should not apply in an exceptional case. The Home Secretary must be able to give general guidance to immigration officers, including which establishments are recognised.

Natural justice. Where a public officer can deprive a person of liberty or property, that person should ordinarily be heard. But aliens are different: "they have no right to be here except by licence of the Crown." Whether a hearing is due "all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say." If a permit is revoked before it expires, the alien should be allowed to make representations, because he would have a legitimate expectation of staying for the permitted time. Otherwise, "a foreign alien has no right - and, I would add, no legitimate expectation - of being allowed to stay. He can be refused without reasons given and without a hearing."

Fairness. There was no unfairness: the students were given two months, made no representations, and the Home Secretary remained ready to hear them. The action was "quite unsustainable".

Widgery LJ

Widgery LJ agreed, resting his decision on the absence of any right. An alien refused leave to land "has no kind of right or interest capable of being infringed or affected", so his "desire to land can be rejected for good reason or bad, for sensible reason or fanciful or for no reason at all." The same applies to an alien in the country who wants his permit extended: he "has no kind of right to require an extension of that period." He compared a tenant with a three-month lease who wants to renew: the landlord may refuse out of hand, "because there is no right in the tenant which can be infringed."

He said the factor that forced his conclusion was "the absence of any kind of right in the plaintiffs to an extension of their landing permits."

(Widgery LJ refers to the "Aliens Order of 1953", while Lord Denning earlier refers to the "Aliens Order, 1933". The two references are left as they appear in the judgment.)

Russell LJ (dissenting)

Russell LJ would have allowed the appeal. He did not say the students would win, but thought one or more of their points might succeed at trial, so the case was not suitable for striking out. He thought it "most certainly well arguable" that the Minister's reasons showed a purpose of discouraging the East Grinstead institution by cutting off its students, rather than a purpose of keeping students away lest they do harm.

An alien has no legal right to enter the United Kingdom, or to have a limited permission to stay extended; he is here only by leave. Because he has no right or interest (and, once his time has expired, no legitimate expectation) that a refusal would infringe, the Home Secretary may refuse an extension without giving reasons and without a hearing, and may act on a general policy for any purpose he considers to be for the public good.

• Hohfeld: use this case to show a liberty (or permission) without a matching claim. The alien may be let in, but he has no claim-right against the State to be let in or to stay on; the State's corresponding position is a privilege to refuse, not a duty to admit.
• Direct question: Explain Hohfeld's distinction between claim and liberty with suitable illustrations. Use Schmidt as the case-law illustration after the textbook examples.
• Cross-reference: in Administrative Law, cite Lord Denning's passage as the origin of the phrase "legitimate expectation", and note how it widens the class of people entitled to be heard beyond those with a strict right.
• Problem question: a foreign student's visa extension is refused without a hearing. Distinguish refusal to extend (no right, no hearing — Schmidt) from revocation before expiry (legitimate expectation — hearing due, on Lord Denning's own statement).