England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISON,
ADMINISTRATIVE COURT
MR JUSTICE BURNETT
CO/9694/2011

		Royal Courts of Justice Strand, London, WC2A 2LL
		9th July 2014

Lord Justice Maurice Kay:

1. The appellant has been a successful human rights litigant. In NA v United Kingdom (2009) 48 EHRR 15 the European Court of Human Rights (ECtHR) held that for the Secretary of State to remove him to his native Sri Lanka would involve a contravention of Article 3 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) because of risk to him in that country. The present appeal is concerned with the aftermath of that ruling. The Secretary of State did not then seek to remove him, as she had sought to do before the case in the ECtHR. He was granted temporary admission subject to a weekly reporting requirement. By May 2009 a Minister of State had approved a decision that he would be granted six months discretionary leave to remain although that decision was not formalised at the time. Two things were of continuing concern to the Secretary of State. One was that the appellant had been convicted of a sexual offence on 10 February 2006 and had manifested other sexual misconduct. He remained on the Sex Offenders Register (SOR) as a result of the 2006 conviction. The second point was that the situation in Sri Lanka was changing. The long civil war came to an end in May 2009. The Secretary of State had reason to believe that, whilst return would have been unlawful at the time of the ECtHR judgment (17 July 2008), a lawful return might now be possible.
2. I shall return to the details of what did and did not happen between 17 July 2008 and 6 December 2012. However, on that date the Secretary of State decided to remove the appellant to Sri Lanka in the light of the changed circumstances there. It was considered that the Article 3 risk had passed. The present litigation takes the form of a challenge to that decision. The case for the appellant is that the Secretary of State unlawfully denied him a grant of indefinite leave to remain (ILR) in 2009. The application for judicial review failed before Burnett J: [2013] EWHC 2383 (QB). The appellant now has permission to appeal to this Court on two grounds: (1) that the Secretary of State's treatment of the case following the decision of the ECtHR was unlawful by reason of delay and "conspicuous unfairness"; alternatively, (2) he should have been granted ILR as a "legacy" case pursuant to the Legacy Scheme which was in force at the material time.

Ground 1: unlawfulness, delay and conspicuous unfairness

3. I now return to the factual history against which this primary ground of appeal falls to be considered. The appellant entered the United Kingdom clandestinely on 17 August 1998 and applied for asylum the next day. His application was refused by the Secretary of State and his appeal was dismissed by an immigration judge, although his allegations of having been tortured in Sri Lanka were accepted. Those proceedings came to an end on 29 July 2003. On 10 February 2006 the appellant was convicted of indecent exposure, sentenced to a three month suspended sentence and placed on the SOR for seven years. In March 2006 he sought to make a fresh asylum and human rights application but it was not accepted as such by the Secretary of State and a subsequent judicial review came to nothing. On 21 June 2007 the appellant made his application to the ECtHR.
4. On 21 May 2008 the appellant was arrested on suspicion of exposing himself to a woman and child. However, no prosecution ensued because a point came when the woman and child could not be traced.
5. Following the judgment of the ECtHR on 17 June 2008, the Secretary of State notified that Court on 14 October 2008 that she would not now remove the appellant. On 16 December 2008, the appellant's solicitors wrote to the Secretary of State requesting that, now that his Article 3 case had been accepted, he should also be granted refugee status. On 16 January 2009, the Secretary of State indicated to the ECtHR that the appellant would be granted refugee status or discretionary leave to remain (DLR). By the beginning of May the Minister had concluded in principle that the appellant should be granted 6 months DLR rather than any more generous protection. This was considered to be consistent with a policy relating to foreign national offenders (FNOs) whose immediate removal was constrained by Article 3 or the Refugee Convention.
6. Although the appellant had been reporting regularly in accordance with the conditions of his temporary admission, on 25 June 2009 – before he had been informed of the DLR decision and a few weeks after the end of the Sri Lankan civil war – he absconded. Following his arrest, on 24 March 2010 he was convicted of failing to comply with his obligations arising out of his inclusion in the SOR. He was sentenced to 12 weeks imprisonment. On the conclusion of that sentence on 5 May 2010 he was transferred to immigration detention, from which he was released on 1 June 2010. Subsequent litigation about that period of immigration detention resulted in a settlement.
7. On 29 July 2010, the appellant's solicitors again wrote to the Secretary of State requesting refugee status. Inconclusive correspondence followed until the commencement of the current judicial review proceedings on 10 October 2011. There were then other procedural exchanges until a substantive hearing was listed on 7 December 2012. However, that was adjourned because, on 6 December, the Secretary of State served a decision which had been made the previous day refusing the asylum claim and indicating removal to Sri Lanka in the light of improved conditions in that country. The appellant was granted permission to amend his grounds of challenge so as to focus on that latest decision.
8. For completion I should add that the appellant subsequently lodged an appeal to the First-Tier Tribunal in relation to this decision to remove him but that appeal has been stayed pending the completion of the present proceedings.
9. In wide-ranging submissions, Mr Hugh Southey QC seeks to establish from that history unlawfulness on the part of the Secretary of State in failing to grant the appellant at an earlier stage more generous leave so as to secure the humanitarian protection to which it is said he was entitled. I confess that I do not find his submissions easy to disentangle. It may help if I address them by reference to the following distillation which I take from his skeleton argument:

"(1) The judge erred in finding that there was no obligation on the Secretary of State to grant leave to remain to the appellant following his successful appeal before the ECtHR.

(2) The judge failed to have proper regard to:

(a) the absence of any evidence of any activity on the part of the Secretary of State between July 2008 and May 2009;

(b) the absence of any evidence explaining the delay in implementing the decision taken in May 2009; and

(c) the absence of any adequate reasons why the appellant was not granted some form of leave when he came to light in 2010.

(3) The judge was wrong to find that there was no conspicuous unfairness in this case.

(4) In any event, to the extent that there was no unfairness, that does not mean that there was still not illegality that needed to be taken into account when the decision challenged was taken [in December 2012]"

The reference to "conspicuous unfairness" in (3) is taken from the line of authorities which include R (Rashid) v Secretary of State for the Home Department [2005] AR 608; R (S) v Secretary of State for the Home Department. [2007] INLR 450 and KA (Afghanistan) v Secretary of State for the Home Department [2013] 1 WLR 615 and which are concerned with a somewhat elusive principle designed to facilitate the correction by judicial decision of historic injustice. Its essential ingredient is unlawfulness and not simply maladministration.

10. At this stage it is appropriate to refer to the legal framework which underpins humanitarian protection arising from a breach or putative breach of Article 3. Directive 20014/83/EC, usually referred to as the Qualification Directive, contains minimum standards for the qualification and status of third country nationals in relation to both refugees and "persons who otherwise need international protection". A person who is in need of protection against torture or inhuman or degrading treatment is "eligible for subsidiary protection": Articles 2 (e) and 15 (b), which incorporates the language of ECHR Article 3. The content of such protection is set out in Articles 20-34. A person who qualifies for this form of protection ceases to be eligible for it "when the circumstances which led to the granting of subsidiary protection status have ceased to exist or have changed to such a degree that protection is no longer required": Article 16.1. By Article 17.1 persons are excluded from eligibility for subsidiary protection where there are serious reasons for considering that, inter alia, he or she has committed a serious crime or constitutes a danger to the community of the Member State. The domestic Immigration Rules reflect these provisions in relation to both entitlement and exclusion: see Paragraphs 339C and 339D.
11. Against this background I shall endeavour to address the various strands of Mr Southey's submissions.

(1) The appellant was entitled to be granted leave to remain following the judgment of ECtHR

12. The judge dealt with this submission in the following passages of the judgment:

"18. There is no obligation enforceable in this jurisdiction upon the United Kingdom government to comply with a judgment of the Strasbourg Court. That is a matter for the Strasbourg organs. But in any event, in this case the limit of the Court's requirement was that the claimant should not be removed to Sri Lanka. He has not been…

19…the judgment of the Strasbourg Court does no more than record its decision that removal would violate the claimant's Article 3 rights. It says nothing about the legal basis upon which the claimant should be allowed to stay in the United Kingdom."

This analysis is undoubtedly correct. The domestic court is not concerned with the enforcement of the ECtHR judgment on the international plane which is the subject-matter of ECHR Article – which was not incorporated into domestic law by the Human Rights Act 1998 so as to give rise to individual rights, enforceable in the domestic courts. In any event, it is trite law that even in the purely domestic context leave to remain is not in the gift of the courts or tribunals. It is a matter for the Secretary of State who is subject to judicial oversight in various ways.

(2) Unlawfulness by reason of delay

13. There is a well-known line of authority supporting the proposition that where a person has successfully established a right to, for example, refugee status, unreasonable delay on the part of the Secretary of State in formally confessing that status can be unlawful: R v Secretary of State for the Home Department, ex parte Mersin [2000] INLR 511; R (Manbakasa) v Secretary of State for the Home Department [2003] EWHC 319 (Admin); R (Rechachi) v Secretary of State for the Home Department [2006] EWHC 3513 (Admin). However, as Davis J said in Rechachi:

"38…those cases confirm what is really elementary principle: that the length of the delay in question cannot normally be taken on its own without consideration also of the consequences resulting from such delay in assessing whether or not the failure to issue the letter of grant of leave to remain is to be categorised as unlawful and to require the grant of relief. Putting it another way, the entire circumstances of each case have to be borne in mind. "

For this reason, it seems to me that, for example, Mersin cannot be treated as a simple analogue in the present case. Mersin was a straightforward case in which the claimant had established his right to refugee status before a special adjudicator and all that was required after that was a simple grant "without any discretion being exercised at all" (per Elias J at page 522). In those circumstances a delay of six months was unlawful. Likewise in Manbakasa, where to grant refugee status in line with a determination of the Immigration Appeal Tribunal "ought…to have been a simple administrative task" as there was "nothing in the circumstances of the case to require any substantial exercise of judgment" (per Richards J at paragraph 66 (vi)).

14. On any view, the present case was more complex. The appellant was a convicted criminal who was on the SOR. In addition to that offence there had been the more recent incident in May 2008 which, although no prosecution had ensued, remained a matter of legitimate concern. Accordingly, the judgment of the ECtHR did not leave the Secretary of State with "a simple administrative task". There were circumstances requiring a "substantial exercise of judgment". As the judge said (at paragraph 5): "then as now the position of foreign national offenders was regarded within the Home Office as particularly sensitive". Of course, it was still incumbent on the Secretary of State to come to a decision within what would be a reasonable time having regard to all the circumstances. However, it would be quite wrong to view cases such as Mersin and Manbahasa as having established a single criterion of reasonableness as being six months or less.
15. With this in mind, I return to the facts and circumstances which followed the judgment of the ECtHR. It is clear that the judgment was accepted by the Secretary of State as having brought to an end any possibility of returning the appellant to Sri Lanka unless conditions in that country improved. The appellant was no longer at risk of immediate return. The issue for the Secretary of State was as to what form his continued presence in this country should take.
16. It is clear from the history set out in paragraph 5 above, that between 14 October 2008 and 16 January 2009, this issue remained unresolved. The evidence filed on behalf of the Secretary of State explains that, in the absence of the appellant's proven and reasonably suspected criminality, the normal course would have been to implement the judgment of the ECtHR by a grant of leave to remain for five years as the appropriate humanitarian protection. However, it was not deemed appropriate to deal with a person on the SOR in that way. The policy at the time was to consider a grant of six months DLR, renewable from time to time. Because of the sensitivity of such cases, the procedure required a submission to, and decision of, the chief executive of the UKBA and subsequent ministerial involvement. A submission was made to the Parliamentary Under Secretary of State on 17 March 2009. It stated that the appellant:

"…is a registered sex offender and falls to be excluded from a grant of Humanitarian Protection… In such circumstances, policy recommends a grant of six months Discretionary Leave. In granting such leave, [the] case will be subject to active review every six months. If circumstances in Sri Lanka later change to the effect that [the appellant] would no longer be a risk on return, voluntary departure or enforced removal can be pursued."

About six weeks later, on or about 1 May, the decision was made to grant six months DLR. By 25 June 2009 the appellant had absconded without notice of the decision having been served.

17. I accept that the processing of the appellant's case after the Strasbourg judgment could, and as a matter of administrative practice should, have been more rapid. However, I am unpersuaded that it crossed the line between maladministration (which creates no legal rights for present purposes) and illegality. It is not appropriate to see this as a straightforward case. It required consideration at a high level to see where it fitted into the Secretary of State's (unchallenged) policy. The evidence does not establish that those considering the case were somehow playing for time in the hope that conditions in Sri Lanka would change to an extent that Article 3 would no longer be an obstacle to removal. That they soon did so was purely adventitious. By 16 January 2009, more than three months before the end of the civil war, the Secretary of State was notifying the ECtHR that some form of leave to remain would be granted. There was then a period or a further period of bureaucratic delay as consideration of the particular form progressed through its various stages. The delay was not inordinate, either at that stage or between 1 May and 25 June. The appellant was not detained and he had the security of the ECtHR judgment.
18. By June the situation had changed significantly. The civil war had ended and the appellant absconded – two events which may not have been unrelated. He was at large for nine months and then imprisoned for breach of his obligations as a registered sex offender. The changed circumstances – reprehensible on his part, more benign in Sri Lanka – ultimately led to the decision to remove him which is only challenged on the basis that he had acquired rights arising from unlawful delay which entitled him to further protection against removal. The judge addressed these matters as follows:

"21…It is, however, an inevitable conclusion that many of the problems which the claimant had encountered flow from his absconding. If he had not done so, he would have been given his six months DLR, which would then have been renewed from time to time until any decision was taken that it was safe for him to return to Sri Lanka… [DLR] would have been extended from time to time until a further extension was refused on precisely the same basis as eventually occurred in December 2012…

23…there is nothing in the history of the Secretary of State's dealing with the claim which smacks of conspicuous unfairness."

By that final statement, the judge was saying that, notwithstanding the earlier delays (of which he was critical), this is simply not a Rashid-type case. I agree. As paragraph 21 of the judgment explains, causation is an issue in this type of case: see also my judgment in KA (Afghanistan) v Secretary of State for the Home Department [2013] 1 WLR 615, at paragraph 25. Here, the appellant has not only failed to establish that the delay was unlawful. He has also failed to establish that there was a causative link between the delay and his obtaining protection to which he was entitled.

19. It is true that, if a decision had been made sooner and the appellant had enjoyed a period of DLR, that would have carried with it entitlement to the benefits which flow from subsidiary protection derived from Chapter VII of the Qualification Directive. However, this appeal is not about a period of deprivation of those benefits. It is about whether the acts and omissions of the Secretary of State were unlawful to the point of opening the door, even now, to a form of protection which the appellant no longer needs. In my judgment it is plain that they were not.

Ground 2: Legacy

20. The alternative, fallback submission on behalf of the appellant is that his case is properly categorised as a "Legacy" case and, if it had been timeously processed as such, it would have been considered by reference to Paragraph 395C, whereupon it is highly likely that the outcome would have been a grant of ILR.
21. The Legacy Scheme was introduced by the Secretary of State in 2006 in order to deal with a "massive and unmanageable backlog" of asylum and human rights applications. That apt description of the backlog is taken from the judgment of Burton J in Hakemi v Secretary of State for the Home Department [2012] EWHC 1967 (Admin), paragraph 1, where he further described the scheme as one:

"to transfer some 500,000 outstanding applications received prior to 5 March 2007 to a specially constituted team of some 950 caseworkers, the Casework Resolution Directorate (CRD), which would work through those cases and endeavour to grant or refuse leave to remain by July 2011."

Legacy cases were those where the application had been made before 5 March 2007 but had not yet been resolved by removal or by a grant of leave to remain. By July 2011 there remained a residue of some 116,000 cases (many of them with unresolved difficulties) and these were then transferred to a new body, the Case Assurance and Audit Unit (CAAU).

22. Although the appellant's application had been made before 5 March 2007 and he had been neither removed nor granted leave to remain by July 2011, the judge considered that this was "not a true legacy case at all" (paragraph 25), seemingly on the basis that during most of the relevant period it was being actively processed through the domestic tribunals and thereafter in Strasbourg. Whilst it was not a typical legacy case, I consider that Ms Anderson is right to concede in this Court that, taxonomically and technically, it fell within the Legacy Scheme. Moreover, it was in fact passed to the CRD and thereafter the CAAU.
23. At the time when the appellant's case was with the CRD, the usual practice of the CRD involved an assessment of an individual case by reference to Paragraph 395C which provided:

"Before a decision to remove…is given, regard will be had to all relevant factors known to the Secretary of State including:

(i) age;

(ii) length of residence in the United Kingdom;

(iii) strength of connections with the United Kingdom;

(iv) personal history, including character, conduct and employment record;

(v) previous criminal record and the nature of any offence of which the person has been convicted;

(vi) compassionate circumstances;

(vii) any representations received on the person's behalf."

Paragraph 395C was repealed on 13 February 2012. The submission on behalf of the appellant is that his case ought to have been considered as party of the Legacy cohort while paragraph 395C was still in force and, if it had been, it is highly likely that he would have been granted ILR.

24. The first point to note about the Legacy Scheme is that it did not confer additional substantive rights on the Legacy cohort. Its purpose was administrative and organisational. It bore no resemblance to an amnesty: see Geraldo v Secretary of State for the Home Department [2013] EWHC 2703 (Admin), at paragraph 40 (King J). The substantial first instance jurisprudence on the Legacy Scheme was recently and admirably reviewed by Ouseley J in Jaku v Secretary of State for the Home Department [2014] EWHC 605 (Admin). He stated, correctly in my view:

"6. At the heart of much of the litigation over the years have been eventually largely fruitless and in my judgment misconceived attempts by claimants to show that there was a special and more favourable policy which should be applied to those in the Legacy programme, devised from a target or aim as to the date by when decisions would be made. Their target was then elevated into a legitimate expectation; arising it was said to create unlawful delay such as to create an historic injustice, leading to arguments that particular forms of leave should be granted, that policies should be treated as frozen, that particular periods of residence should be given great weight, all deriving from a misreading of policy…"

Quite so.

25. To a significant degree, reliance on the Legacy Scheme in this case reflects that misconception. The reality is that if a legacy case was being considered at a time when Paragraph 395C was in force, it was applied. If consideration came after the repeal of Paragraph 395C, it was not applied. Absent other features bringing a case within the Rashid principle (and, as I have held, there was none in this case), being a legacy case conferred no particular entitlement on the appellant and he cannot build a claim of entitlement to consideration under Paragraph 395C on the mere fact of his having been within the legacy cohort.
26. Moreover, that is not the limit of his difficulties in relation to this ground of appeal. Mr Southey approaches it on the basis that it is axiomatic that, at least to a degree of high likelihood, the appellant's case would have received a favourable outcome if it had been assessed by reference to Paragraph 395C. I disagree. The submission seems to be founded, at least in part, on an assertion that where an applicant within the legacy cohort had accumulated more than six years residence in the United Kingdom, "other factors being equal" he would be granted ILR. The archaeology of the words "other factors being equal" in the context was investigated and explained by Burton J in Hakemi v Secretary of State for the Home Department [2012] EWHC 1967 (Admin), paragraphs 13-16. I am satisfied that there was no such policy which, if it had existed, would have been close to an amnesty. The reality is that, when Paragraph 395C was in force, it was applied holistically both within and outside the Legacy Scheme. To assert to the contrary would be to fall foul of the "misreading" to which Ouseley J referred.
27. Is it "highly likely" that the appellant would have benefitted from a holistic application of Paragraph 395C? I am quite sure that it is not. In view of his immigration history and, in particular, his criminal record and inclusion in the SOR, a CRD caseworker would not have viewed it as a routine case. The likelihood is that any Paragraph 395C assessment would have been adverse to the appellant and that his only hope of leave to remain would have been on the basis of the need for international protection and in the form which later eventuated.

Conclusion

28. It is apparent from what I have said that I would dismiss this appeal.

LORD JUSTICE FLOYD

29. I Agree.

LADY JUSTICE SHARP

30. I also agree.