Many applicants entered the UK expecting to qualify for ILR after five years. It may therefore feel reasonable to assume that any substantial change will be announced well in advance or accompanied by transitional protection. However, an expectation that appears reasonable in practical terms does not necessarily amount to a legally enforceable “legitimate expectation”.
The High Court judgment in R (EBA) v Secretary of State for Defence and another [2026] EWHC 1131 (Admin) provides a timely illustration of this distinction.
Although the case concerned the closure of an Afghan relocation scheme rather than ILR, the judgment is relevant to anyone relying on the current Immigration Rules to remain unchanged until a future application can be submitted.
What happened in the EBA case?
The Afghan Relocations and Assistance Policy, known as ARAP, supported certain Afghan citizens who had worked with or for the UK Government in Afghanistan.
On 1 July 2025, the Government laid a Statement of Changes before Parliament, closing the scheme to new applications from 3:00 pm that same day. No advance notice of the deadline was given.
The claimant challenged both the immediate closure and the subsequent refusal to consider a future application. Among other arguments, he stated that the decision was procedurally unfair and contrary to a legitimate expectation that applicants would receive advance notice. The High Court dismissed the claim.
The judges stressed that they were deciding whether the Government’s actions were unlawful, not whether closing the scheme without warning was morally or politically justified. That distinction is central to understanding the judgment.
What is legitimate expectation in UK public law?
Legitimate expectation is a public law principle designed to promote fairness and consistency in government decision-making.
It may arise where a public authority has:
- made a clear, unambiguous and unqualified promise; or
- followed a practice so consistent and well established that it effectively amounts to such a promise.
The expectation may be procedural, such as an expectation that consultation or notice will take place. In some cases, it may be substantive, involving an expectation that a particular policy or benefit will continue to apply.
The court in EBA relied on the test confirmed by the Court of Appeal in R (MP) v Secretary of State for Health and Social Care [2020] EWCA Civ 1634. A practice does not have to be completely without exceptions, but it must be sufficiently consistent to imply clearly that it will be followed in the future.
There are also two stages to the legal analysis. First, the claimant must establish that a relevant legitimate expectation existed. Second, even where one is established, the public authority may be permitted to depart from it if there is an objective and proportionate justification.
Why the 21-day convention did not create a legitimate expectation
Changes to the Immigration Rules normally take effect no earlier than 21 days after the relevant Statement of Changes is laid before Parliament. The claimant argued that this convention, or at least the usual practice of providing some notice, created a legitimate expectation. The High Court disagreed.
The Government produced evidence showing that, of 17 Statements of Changes made between 17 February 2022 and 30 June 2025, at least seven contained provisions that took effect on the day they were laid.
Examples included:
- the immediate closure of the Tier 1 Investor route in February 2022;
- certain changes to the Student route in July 2023; and
- the closure of the Ukraine Family Scheme in February 2024.
The court concluded that the 21-day period was a convention rather than a rule that applicants could invariably rely on. The existence of repeated exceptions meant that the practice was not sufficiently settled or uniform to create a legally enforceable expectation of advance notice.
The legitimate expectation argument therefore failed at the first stage. The court also held that, even if an expectation had existed, the Government had an objective justification for immediate closure. Advance warning was expected to produce a substantial surge of applications and place further pressure on an already significant backlog.
What does the judgment mean for the proposed ILR reforms?
The EBA judgment does not determine how the Government must implement the new earned settlement system. It does not decide whether people already on a five-year route should receive transitional protection, nor does it confirm that future settlement changes may always take effect immediately.
Its significance is narrower, but still important: applicants should not assume that previous government practice, political statements or general expectations of fairness will necessarily create an enforceable right to advance notice.
The earned settlement consultation closed on 12 February 2026. The proposals include a standard ten-year qualifying period for most migrants, with possible reductions or increases based on factors such as earnings, occupation, integration and immigration compliance.
Crucially, the Government consulted on whether transitional arrangements should protect people who are already on a route to settlement. The final position has not yet been confirmed. The consultation itself acknowledged that, without transitional arrangements, the new policy could affect people already in the system who have not obtained ILR by the date the relevant rules take effect.
One element has already progressed further. The Home Office has announced a higher English-language requirement for most settlement applicants, moving to B2 level from March 2027. The wider structure of earned settlement, including the final qualifying periods and transitional provisions, remains subject to further rules.
Goldman Solutions can assess how the announced and proposed changes may affect your current route, your earliest ILR date and the position of your dependants.
Why relying on an expected ILR date may be risky
A person may have arranged their career, housing, finances or family plans around an expected ILR date. An employer may also have discussed a five-year settlement route when recruiting an international employee.
Those circumstances are commercially and personally significant. They do not, however, automatically establish a legitimate expectation in the public law sense.
The legal position will depend on the exact wording of:
- the Immigration Rules in force on the relevant date;
- the accompanying implementation provisions;
- any transitional arrangements;
- official guidance; and
- any specific representation made directly to the individual.
A general statement that a visa “leads to settlement after five years” may reflect the rules in effect at that time. It is not necessarily an unconditional promise that those rules will remain unchanged.
What should applicants do now?
Applicants approaching settlement should review their position before making irreversible decisions based on an expected ILR date. This should include confirming the earliest valid application date, checking continuous residence and absences, reviewing salary and employment requirements, preparing evidence and identifying whether partners or children follow a different settlement timetable.
It is also important to distinguish between being close to eligibility and being able to submit a valid application. The EBA judgment demonstrates how decisive a formal deadline can become once the rules change. Employers should identify sponsored workers approaching ILR and consider how potential delays may affect sponsorship costs, workforce retention, and future recruitment. Internal communications should avoid describing settlement as guaranteed.
A settlement-readiness review with Goldman Solutions can help identify weaknesses in advance and provide a clearer strategy if the rules or transitional provisions change.
Can the EBA judgment be appealed?
EBA is a judgment of the High Court’s Administrative Court. Any appeal would ordinarily proceed to the Court of Appeal, subject to permission. A further appeal to the Supreme Court would require separate permission. At the time of writing, no subsequent reported appellate judgment has been identified. The legal position should therefore continue to be monitored.
Conclusion
The EBA judgment does not preclude challenging an unfair immigration decision. A clear promise or genuinely settled administrative practice may still create a legitimate expectation, and any individual assurance must be examined carefully.
What the decision does show is that applicants cannot safely treat the 21-day convention, political announcements or previous patterns of rule changes as a guarantee of advance warning.
With major ILR reforms still being developed, preparation should begin before the final rules are published. If your settlement plans may be affected, contact Goldman Solutions for an individual assessment of your immigration history, eligibility date and available options.
