England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM High Court, QBD, Administrative Court
Phillipa Whipple QC (sitting as a Deputy High Court Judge); and
HH Judge Sycamore (sitting as a Deputy High Court Judge)
Mrs Justice Simler DBE [2013] EWHC 4113 (Admin);

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/07/2014

Lord Justice Underhill :

1. We have before us applications for permission to appeal in three cases which I ordered to be heard together because they raise overlapping points and issues of case management which are not entirely straightforward. Mr Hugh Southey QC, leading Mr Paul Turner, appeared for the Applicants in two of the cases and Ms Nicola Braganza of counsel appeared for the Applicant in the third. Ms Julie Anderson of counsel appeared for the Secretary of State in all three cases.

HAMZEH AND OTHERS

2. The Applicants in this case are five Iranian nationals who came to this country illegally at various dates between 2003 and 2006 and applied for asylum. All of their claims were refused, most of them promptly, and appeal rights in each case were long ago exhausted. They did not, however, leave voluntarily and they have not been removed. They say that they have no travel documents; and it is common ground that if that is true (though it is not accepted that it is) it has not, at least since 2011, been possible to enforce their removal, because the breaking-off of diplomatic relations with Iran has meant that fresh documents could not be obtained, and they were thus for the time being (though this may soon cease to be the case) "irremovable". In each case the Secretary of State has made it clear that she is not prepared to exercise her discretion outside the Rules not to seek to proceed with removal or, still less, to grant discretionary leave to remain.
3. In 2012 the Applicants brought proceedings for judicial review in which, putting it broadly at this stage, they claimed that the Secretary of State was obliged to grant them leave to remain, though in due course this was modified to a less ambitious claim that her actual or implicit decision not to grant leave to remain should be quashed and that she be required to re-make that decision on a different basis. As eventually crystallised (a process which seems only to have occurred at the hearing), the legal grounds for that contention fell under two broad heads:

(1) that the Applicants' cases fell to be dealt with under the so-called "legacy programme" announced by the Secretary of State's predecessor, Dr Reid, in July 2006, under which it was intended that all cases then outstanding would be "concluded" within five years; and that the commitment to achieve such conclusion gave rise to a legal entitlement on their part to be granted leave to remain if they were not removed at the end of that time;

(2) that the Secretary of State's published policy, as contained in chapter 53 of UKBA's Enforcement, Instructions and Guidance Manual (the title of which is, oddly, "Extenuating Circumstances", but which is concerned with exceptional reasons for not removing migrants who have no right to remain) required her to give a weight to the length of time that they had been resident in the UK and/or to their practical irremovability which she had failed to accord them.

4. Two of the Applicants – Mr Hamzeh and Mr Abdullahi – were granted permission to apply for judicial review and their claims were heard before Simler J over three days in November and December 2013. The cases of the other three were heard at the same time on a rolled-up basis. In a careful and thorough reserved judgment handed down on 20 December 2013 the Judge dismissed the two substantive claims and refused permission in the remaining three. As regards the refusals of permission, the apparent primary reason in each case was that the claim had been brought out of time by reference to the date of the decision under challenge, but in each case the Judge also held that the claim was unarguable for essentially the same reasons that she had dismissed the claims of Mr Hamzeh and Mr Abdullahi.
5. I will consider in turn the grounds of appeal pleaded by Mr Turner.
6. First, paras. 4-6 of the Grounds plead in various ways what is essentially, as Mr Southey accepted, a single point, namely that the Judge wrongly held that it was sufficient to "conclude" a case (in the sense that that term was used in the context of the legacy programme) that the Secretary of State should have decided, as she had in the Applicants' cases, not to grant leave to remain: conclusion of a case required either removal or the grant of leave to remain. Para. 7 raises a more particular point about "conclusion" peculiar to Mr Hamzeh's claim: I return to it below.
7. Ms Anderson contended that the Judge's approach to the issue of "conclusion" was entirely correct; but she also took a more fundamental point. In another case about the legacy programme, though one concerned with what appears, at least superficially, to be a different point – R (Geraldo) v Secretary of State for the Home Department [2013] EWHC 2703 (Admin) – King J held that any "commitment" given by Dr Reid in July 2006 was aspirational only and gave rise to no obligation enforceable in law (see para. 102 of his judgment); and his decision and reasoning were approved by Davis and Ryder LJJ in refusing permission to appeal following an oral hearing on 1 April 2014 ([2014] EWCA Civ 563). Ms Anderson submitted that that reasoning undermines the whole argument based on what might or might not constitute "conclusion" for the purpose of the legacy programme: if the programme gave rise to no legal obligations, that question simply does not matter either way. Mr Southey argued that Geraldo should be distinguished, principally on the basis that what the claimant was asserting in that case was that the Secretary of State was obliged to conclude his case by a specific date.
8. I am bound to say that I found Ms Anderson's submissions persuasive and the attempts to distinguish Geraldo unconvincing. But there is a difficulty. On 18 February this year – that is, prior to the decision of this Court in Geraldo – Elias LJ gave permission to appeal against the decision of Lewis J in another "legacy case" called R (Aberaham) v Secretary State for the Home Department (aka BA (Ethiopia)), which is now listed for hearing at the beginning of next term. One of the principal grounds of appeal in that case was that the Secretary of State had failed to "conclude" her case by the grant of leave to remain. That appears to be in substance the same ground as the Applicants wish to advance in this case. It seems to me wrong that we should contemplate refusing permission to argue a point in respect of which permission has already been granted in another case, and which is indeed shortly to be argued. Ms Anderson points out that Elias LJ had not had the benefit of the decision in Geraldo and also submits that he had been influenced by the argument that there was a difference of approach in the first-instance decisions, which on analysis could be shown plainly not to be the case. But neither point alters my view that it would be very unsatisfactory for us to appear to prejudge the very question which will be before the Court in October.
9. We canvassed with counsel whether, if that was indeed our eventual view, the better course was to stay these applications pending the decision in Aberaham or to direct that they be listed together with it. On balance I think that the latter course is preferable, particularly since Ms Anderson and Mr Turner are already instructed in Aberaham, and I hope (and expect) that both cases can be accommodated on the date already fixed in October. In order to emphasise that we have not ourselves reached a positive view that the issues in question are arguable I would not grant permission and would make the direction on a rolled-up basis. (That may also go some way to address a concern expressed by Ms Anderson that claimants in pending cases in the Administrative Court would exploit any grant of permission in these cases as an indication that the issues apparently now put to bed in Geraldo might be free to stalk the corridors again.)
10. Second, at para. 8 of the grounds it is pleaded, under the heading "Limbo", that "the Judge erred in finding that there was no 'general policy or practice' of granting leave to remain where an individual can never be removed from the United Kingdom". This is not a general contention to the effect that it is a breach of the Applicants' article 8 rights for their immigration status to be left indefinitely in limbo – that is, that they should be irremovable but without any leave to remain. Mr Turner had sought to advance such a contention before the Judge but was constrained to acknowledge that it was not open to him on the basis of the permission granted (see para. 6 of her judgment). Rather, it is a submission that the Secretary of State failed to adhere to what is said to have been a policy enunciated by her.
11. This point is not in my view arguable. I should start by noting that the ground of appeal does not correctly represent the Judge's finding. What she said, at para. 50 of her judgment, is that "no general policy or practice has been established by the Claimants to the effect that persons whose removal from the UK cannot be enforced should for this reason alone be granted leave". That is an entirely accurate reflection of the evidence before her. Mr Turner in the Applicants' skeleton argument gathers together a number of extracts from ch. 53 of the Manual, and from witness statements which were before the Judge, which show that in assessing whether there are exceptional circumstances such that removal should not be enforced, which might lead to the grant of leave to remain, one of the factors to be taken into account is the prospect of being able to remove him or her. But none of that comes close to establishing a policy of the kind referred to in this ground. Ms Anderson drew attention to a passage in the witness statement of Mr Neil Forshaw, the Assistant Director of UKBA, in which he expressly contradicted the existence of any such policy. In those circumstances I see no prospect of the Applicants being able to establish that the Judge's finding was wrong.
12. Of course, as Ms Anderson acknowledged, it is possible to conceive of cases where the Secretary of State may be obliged, most obviously by reference to article 8, to grant leave to remain to migrants who have no legal right under the Rules but who it is established can "never" (whatever that means in this context) be removed: that simply reflects the observations of Lady Hale in Khadir v Secretary of State for the Home Department [2005] UKHL 39, [2006] 1 AC 207 at para. 4 (p. 211) (see also Abdullah v Secretary of State for the Home Department [2013] EWCA Civ 42). But that has nothing to do with a policy of the kind alleged. Nor in any event was this conceivably a case of that kind. The Judge found, at para. 77:

"The Defendant continues to hold the rational view that voluntary departure is still possible in each of these cases and accordingly, any state of limbo that they find themselves in is self- induced."

That finding has not been, and could not realistically be, challenged.

13. Thirdly, para. 9 reads as follows:

"The Judge fell into error in assessing what was the correct approach to be taken as to considering removability. The Judge made confused findings in respect of "removability" as a relevant factor to be considered in any lawful legacy decision. Plainly it was a factor that required consideration (which it must have been given the evidence before the Court) as part of a holistic consideration."

14. I have been unable to establish either from the skeleton argument or from Mr Southey's oral submissions what specific error on the part of the Judge is being alleged. There was never any dispute, and the Judge accepted, that in considering what to do about the Applicants, including whether to grant them any form of leave to remain, the Secretary of State was obliged to take into account how easy or otherwise it would be to effect their removal; but it was also necessary to take into account to what extent any difficulties were self-induced. I have already quoted the Judge's finding on that point (see para. 12 above). In the light of that finding it is impossible to see how the difficulties about the Applicants' removal could have required the Secretary of State to decide to grant leave to remain.
15. Fourthly, para. 10 is headed "All Cases Treated Alike" and reads:

"It is submitted that the Judge has plainly fallen into error by adopting, without any real basis, the submission that there was no requirement that all legacy cases be treated alike, i.e. by applying the same criteria/guidance/policies, just because they related to different factual circumstances."

Mr Turner appears to have argued before Simler J that "consistency required all cases in the Legacy Programme to be treated alike or have the same substantive outcome" (though breach of that obligation was not in fact one of the pleaded grounds of challenge); and it is to her rejection of that submission (at para. 40 of her judgment) that this ground is directed. As summarised, it is a little difficult to see what the real issue was: self-evidently like cases must be treated alike, but cases were not alike simply because they were included in the legacy programme, and to the extent that they were materially different there is nothing wrong in their having different outcomes. But as developed by Mr Southey the point appears to be that over the lifetime of the programme, including following its nominal termination in July 2011, there were changes in the Rules, and thus also in the guidance set out in the Manual, that operated to the disadvantage of those whose cases had not yet been considered. In particular, with effect from 13 February 2012 paragraph 395C of the Immigration Rules was "replaced" by paragraph 353B which is said to have embodied a more restrictive approach to the consideration of what constituted exceptional circumstances justifying non-removal. (I put "replaced" in quotes, because the nature of the relationship between para. 395C and para. 353B is in issue in another appeal pending before this Court; but the issue is not significant for our purposes.) The argument is that the Secretary of State was obliged, once a case was put into the legacy programme, not to alter the Rules and the guidance applicable to it, or at least not to do so disadvantageously to the migrant.

16. In my view this argument too is hopeless. As the Judge correctly said (at para. 40 of her judgment), it is an important principle underpinning the immigration system that cases "should, wherever possible, be decided on the basis of the law and policy in place at the date of decision". She continued:

"Mr Turner identified no special quality (once it is accepted that the Legacy Programme created no new rights and was an operational programme only) that can be said to be true of all legacy cases which merits treating them as a discrete or defined group separate from cases outside the Legacy Programme and to which different policies or practices should apply."

That seems to me self-evidently correct. Mr Southey advanced no basis on which the Court could depart from the ordinary approach. He did not suggest that we were in the territory mapped out, albeit uncertainly, in Rashid v Secretary of State for the Home Department, [2005] EWCA Civ 744 [2005] INLR 550, and R (S) v Secretary of State for the Home Department [2007] EWCA Civ 546, [2007] INLR 450.

17. I can pass over para. 11, which is merely a summary.
18. Finally, para. 12 raises a ground peculiar to Mr Hamzeh's case. In December 2010 or January 2011 he left the UK for the Netherlands; but he was returned by the Dutch authorities in February 2011 under the Dublin II Regulations. On his return he made a fresh claim for asylum which was rejected. The Judge found that this episode removed the foundation for the entirety of his submissions in so far as they were based on his supposed right to be treated under the legacy programme. The programme covered those whose cases were outstanding when it was first announced, and not new cases, and Mr Hamzeh's departure from the UK meant that he ceased to be such a case; that was not changed by the fact that he subsequently came back. It is pleaded that the Judge's decision on this point was wrong, essentially because Mr Hamzeh's case had been "put back into the legacy programme" following his return. This is also the target of the ground pleaded at para. 7 (see para. 6 above), which pleads that the Judge was wrong to find "that the refusal of a fresh asylum claim amounted to the conclusion of a legacy case". The arguments are developed in (over-) elaborate detail in the 21-page skeleton argument submitted in Mr Hamzeh's individual case (which is additional to the 41-page skeleton argument addressing the common issues).
19. I am far from persuaded that this ground of appeal is arguable; but the overlap with the issue about the status of the legacy programme generally makes it unsatisfactory for us to reach a decision on it in isolation. I would accordingly treat it in the same way as the grounds pleaded at paras. 4-6: see para. 9 above.
20. As I have said, the Judge refused permission in the cases of three of the Applicants because they were out of time. There is no pleaded ground of appeal addressing this issue, and I have considered whether we should not refuse permission to appeal on that simple basis. But Mr Southey submits that the Judge might well have exercised her discretion to extend time differently if she had taken a different view of the substantive merits; he also relies on the fact that the Applicants are in practice complaining of a continuing "non-decision" to regularise their position rather than a specific decision. I am content to allow the time point to be considered by the Court at substantive hearing.

MOHAMMED

21. The Applicant is an Iraqi Kurd. He came to this country, aged 17, in 2007 and claimed asylum. The claim was refused in 2010. A subsequent appeal was dismissed and his appeal rights were exhausted in April 2012. In August 2012 he made further submissions based principally on the poor situation in Iraq but also claiming that he could not as a Kurd safely be returned to Baghdad. By letter dated 27 September 2012 UKBA declined to accept those submissions as a fresh claim; among other things it said that he could be removed by direct flight to Erbil, in the Kurdish autonomous region. It was said that it had been considered whether there were exceptional circumstances justifying the Applicant's non-removal and reference was made to para. 353B of the Immigration Rules; but the decision was that there were not.
22. The Applicant sought permission to apply for judicial review of what is described in the claim form as the refusal in that letter of his fresh asylum claim; but in fact the pleaded grounds are directed more at the Secretary of State's refusal to exercise her discretion not to proceed with removal and – which is said to follow – to grant him leave to remain outside the Rules. Reliance was placed on his good character; the three-year delay in considering his application; his alleged irremovability to Iraq, now based also on an alleged inability to obtain travel documents; his length of residence in the UK; and article 8. As to length of residence, it was acknowledged that that amounted to less than the six years mentioned in the Manual by way of guidance but it was submitted that that was not a mandatory requirement. It was also acknowledged that there had been periods when the Applicant had failed to report in compliance with conditions, but it was said to be irrational of the Secretary of State to attach weight to those. Overall it was said that the Secretary of State's decision was not in accordance with para. 353B of the Rules or her policies as set out in chapter 53 of the Manual.
23. Permission was refused on the papers by Judge Raynor QC sitting as a Deputy High Court Judge. He said that it was unarguable either that the Secretary of State was obliged to treat the Applicant's further submissions as a fresh claim or that she was obliged to find that there were exceptional circumstances in his case such as to justify his non-removal under the Rules. As regards the alleged irremovability, it was clear from the Secretary of State's summary grounds that the Applicant could obtain a laissez-passer from the Iraqi authorities and could now safely be returned to Baghdad.
24. A renewed application for permission was refused at an oral hearing on 28 January 2014 by Philippa Whipple QC sitting as a Deputy High Court Judge. She held that it was unarguable that the Secretary of State had wrongly exercised her "exceptional circumstances" discretion. She had addressed the factors identified in para. 353B. As to the length of the Applicant's residence, that was not the result of matters beyond his control because he could have returned to Iraq if he chose: it had in fact become clear from the papers lodged that he retained identity documents that would have enabled him to obtain a laissez-passer.
25. The grounds of appeal to this Court read as follows:

"5. It is submitted the Judge erred in refusing to grant permission because:

5.1 The Secretary of State of the Home Department failed to adequately or at all consider paragraph 353B and the Enforcement Guidance Instructions Chapter 53 ("Chapter 53") in refusing to grant him leave to remain in the United Kingdom and further failed to consider his case properly under paragraph 353 of the Immigration Rules in respect of his fresh claim;

5.2 In particular that the Secretary of State had failed to have regard to his unremovability as an Iraqi; and

5.3 The Secretary of State had failed to have any or any adequate regard to her failure to have regard to three year delay in considering his original asylum claim when."

26. Although those grounds continue to refer, confusingly, to the Secretary of State's refusal of the fresh claim, it is clear from Mr Turner's skeleton argument that the intended challenge is to the exercise of the "exceptional circumstances" discretion and more particularly to the alleged failure to attach proper weight to the Applicant's alleged irremovability and to the Secretary of State's own delay in deciding his asylum claim. Those points are in my view unarguable. As to removability, the Secretary of State's policy, as reflected in ch. 53 of the Manual, goes no further than that the prospects of achieving the removal of a migrant must be taken into account in considering whether to maintain a decision to remove or to grant discretionary leave to remain. It could not possibly be said that the failure to remove the Applicant to date or such current difficulties as there may have been about removal were such that the Secretary of State was obliged to exercise her discretion in his favour. The evidence was that he could have obtained travel documents if he had tried but he had not done so and had in fact absconded for long periods. As for delay, even if the Secretary of State could be criticised for taking three years to decide his claim, I cannot see how that fact by itself could have given rise to a requirement in law that the Secretary of State should conclude that it was no longer appropriate to remove the Applicant, still less that she should grant him leave to remain. This is not a case where it was said that the delay had resulted in the Applicant acquiring article 8 rights with which it would be disproportionate to interfere or suffering other significant hardship.
27. Mr Southey did not feel able to advance any substantial answer to these difficulties when put to him; and Mr Turner, who followed, candidly said that he wished the facts had been stronger. In truth this application for judicial review was always unarguable, and permission to appeal should be refused.

GHLAM

28. The Applicant is an Algerian national who came to this country on 18 April 2000. He claimed asylum but his claim was refused. By May 2002 his appeal rights were exhausted. Contact was lost with him shortly thereafter. He was arrested in December 2006 and required to report weekly, but he failed to do so after the end of March 2007. Nothing was then heard from him until 20 June 2011, when a firm of solicitors wrote to UKBA to say that they were instructed by him. In a further letter dated 11 August 2011 they gave some very limited details about his circumstances, but it is clear that they were not asserting any right to remain under the Rules or under article 8, nor asserting a fresh claim. Rather, they were asking the Secretary of State to exercise her discretion to allow him leave to remain outside the Rules.
29. No decision was forthcoming, and on 17 August 2012 the Applicant issued proceedings in the Administrative Court seeking judicial review of what he described as "the ongoing failure of the Defendant to make a decision on the Claimant's case". He applied for urgent consideration on the basis that he was destitute, homeless and in poor health. On 19 September permission was refused on the papers by Mr Mark Ockelton sitting as a Deputy High Court Judge. He remarked, with understandable asperity, that it was not for the Applicant, as a long-term overstayer who had wholly disregarded the immigration system, to impose a timetable on the Secretary of State when he belatedly tried to regularise his position.
30. The Applicant applied to renew his application at an oral hearing, but before it was heard UKBA on 19 October 2012 wrote to his solicitors saying that his case had now been reviewed on the basis that he had no right to stay in the United Kingdom – in other words, on the basis of an exercise of discretion outside the Rules. The letter referred to para. 353B of the Rules and made the points, by reference to heads (ii) and (iii) under that paragraph, that he had a very poor record of compliance and that although he had been in this country for twelve years for most of that time he had been an absconder and accordingly could not claim to have been here for reasons beyond his control. It required him to make arrangements to leave forthwith, failing which he was liable to enforced removal.
31. The renewal hearing, which was before Judge Sycamore sitting as a Deputy High Court Judge, was by agreement conducted on the basis that the Applicant's challenge was to that decision, and amended Grounds were lodged. Judge Sycamore refused permission. He referred to the long period during which the Applicant had been under the radar, pointing out that he had only emerged for the purpose of seeking a favourable decision under the legacy programme. He held that the Secretary of State's reasons for not exercising her discretion in his favour were plainly legitimate. He held that there had been no significant delay in her reaching a decision once he had re-emerged.
32. The Applicant sought permission to appeal to this Court. Laws LJ refused permission on the papers. The matter came before me by way of an oral renewal on 27 March 2014. I adjourned it pending the outcome of the renewed permission application in Geraldo.
33. One of the points taken by Ms Braganza was the "conclusion" issue discussed at paras. 6-9 above. For the reasons there given I believe that it would be wrong to refuse permission on this point pending the decision in Aberaham. I do not, however, believe that it is necessary for Ghlam to be listed on the same occasion: the issue is identical and nothing will be gained by having other counsel instructed. I would direct that Ghlam be stayed – as regards this issue – with directions that both parties lodge written submissions as to its disposal within 14 days of promulgation of the decision in Aberaham.
34. Ms Braganza had over the somewhat protracted history of this application advanced a number of other points. We asked her in her oral submissions to summarise those that remained live. I take them in turn.
35. Firstly, and principally, she argued that the Applicant was entitled to have his case determined under what she said was the more relaxed regime under rule 395C rather than the stricter regime introduced by rule 353B. This is the same point as is raised in the Hamzeh cases – see paras. 15-16 above – and I have already said why I regard it as having no real prospect of success. I would add that even if, contrary to my view, migrants whose claims had been in the legacy programme from the start were arguably entitled to have them determined under the pre-February 2012 regime, the argument would hardly apply to the cases of those like Mr Ghlam who had only asked for consideration a few months before the change in the Rules and where there had been no delay in considering their cases before the change took place.
36. Secondly, she argued that the Secretary of State's own policy as set out in the Manual obliged her to give decisive weight to the fact that for the Applicant had been in this country for over twelve years, notwithstanding that the majority of that time he had been an absconder. That seems to me hopeless. The Secretary of State was plainly entitled to distinguish between time spent in this country in compliance with reporting conditions and time spent as an absconder. That is stated explicitly in para. 353B of the Rules, but would be perfectly rational in any event.
37. As I have said, the Applicant's solicitors in their letter of 11 August 2011 give almost no details of his case. They did, however, lodge with his claim form in August 2012 a short witness statement and a letter from Refugee Resource. These said that he was homeless and destitute and was finding the absence of any decision very stressful. His letter said that he had two heart attacks in 2008 and 2009 and identified other health conditions. The letter from Refugee Resource described him as appearing "emaciated and exhausted" and referred to him suffering trauma from the killings and violence which he had experienced in Algeria. (A further witness statement was lodged in December 2012 but that is subsequent to the decision under challenge.) Ms Braganza submitted that the Secretary of State in her decision letter failed to take account of those matters as factors mitigating the weight that might otherwise have been properly attached to his non-compliance/absconding and/or as raising a case under article 8.
38. Although UKBA could have referred in its decision letter to the documents submitted with the Claim Form, I do not believe that its omission to do so gives rise to any arguable issue of law. They were of course lodged in the litigation and not as, or in support of, any free-standing application: they were indeed principally relied on as reasons why the Applicant was entitled to an early decision. But they were not in any event of a nature which required the Secretary of State to give weight to them in deciding whether there were exceptional circumstances requiring him to be given leave to remain outside the Rules. That is of its nature an exceptional discretion. She could not even arguably be obliged to regard the facts that the Applicant was destitute and in poor health (there was no evidence of any acute condition) as by themselves requiring an exercise of discretion in his favour.
39. I would accordingly refuse permission to appeal on any of the issues save that identified at para. 33 above, in respect of which I would direct a stay pending the determination of the decision in Aberaham.

Sir Stanley Burnton:

40. I agree.
41. I add one comment. The submissions for the appellants tend to treat irremovability by the Secretary of State as inevitably resulting in the migrant being compelled to remain in this country, the migrant being unable voluntarily to return to his or her country of nationality or to go anywhere else. That is a plain non-sequitur.