England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

		Royal Courts of Justice Strand London, WC2A 2LL
		16 December 2015

1. LORD JUSTICE DAVID RICHARDS: This is a renewed application for permission to appeal against a decision of the Upper Tribunal (Judge Gill) who refused permission to bring judicial review proceedings in relation to the Respondent's handling of the Appellant's case.
2. The basis of the proposed judicial review proceedings and the original application for permission to appeal to this court was made on a number of grounds, including in particular the effect of the legacy programme on the facts of this particular case. Following the decision of this court in The Queen on the application of SH v Secretary of State for the Home Department (11 May 2014) the proposed grounds of the judicial review proceedings and of this application were reduced to a single issue, namely that the Secretary of State had failed to communicate and implement a decision to grant indefinite leave to remain to the Appellant which, it is said, was made on 24 May 2010.
3. The background facts can, for present purposes, be briefly stated. The Appellant was born in Sri Lanka in 1975. He arrived in the United Kingdom and claimed asylum on 23 March 2003. Asylum was refused on 9 May 2003 and his appeal against the refusal of asylum was dismissed on 29 September 2003. Thereafter there have been numerous applications and steps in relation to the Appellant's status in the United Kingdom. It is not necessary to set them all out, save to say that by two letters, one dated 13 May 2014 and another dated 14 October 2014, the Appellant was refused leave to remain.
4. On 12 August 2014 the Appellant issued judicial review proceedings in relation to the decision communicated in the letter dated 13 May 2014 and was subsequently given leave to amend the claim form to include a challenge to the decision contained in the further letter dated 14 October 2014.
5. In the meantime, on 30 August 2012, the Appellant was provided with documents pursuant to a subject access request under the Data Protection Act. In particular he was provided with a print-out of a computer file called "General case information database case record sheet". It contained, among other entries, two entries, one on 24 May 2010 and the other on 25 May 2015. The text of both entries is set out in full in the judgment of the Upper Tribunal and I will not repeat them here.
6. The Appellant submits that the entry for 24 May 2010 is a decision that he be granted indefinite leave to remain which is binding on the Secretary of State and that she was required to communicate it and is required to implement it.
7. The entry for 24 May certainly has many, if not all, of the appearances of a decision to grant indefinite leave to remain. It gives brief details relating to the Appellant. It sets out reasons for granting indefinite leave to remain. Under the heading "Decision" it is said:

i. "Taking all factors into consideration and bearing in mind that Mr P has been residing in the UK for seven years and two months, [there is then a redacted sentence and it continues] on the basis of Mr P's length of residency and compassionate circumstances it is considered appropriate to grant ILR outside the Rules under 395C of chapter 53 of the enforcement instructions and guidance. Removal is not appropriate in this case."

8. There is then the name of the grade AO officer and the date, 24 May 2010. There follows a standard form part that begins:

i. "If the Applicant qualifies for ILR, is there a signed deportation order against the Applicant? If yes, refer to technical specialist to consider revocation. If no, implement grant of ILR."

9. Then it states:

i. "If the character and background checks have now expired, the checks should be redone before the decision is implemented."

10. Then there is "yes/no" with an asterisk, the note to which says "delete if not applicable". Then it says "date", but the date is not filled in. So on the face of it, the steps needed to be taken following the entry for 24 May 2010 do not appear to have been taken.
11. The rather shorter entry made on 25 May 2010 is to entirely contrary effect and ends with this:

i. "Therefore, although the Applicant has now remained here for seven years and is from Sri Lanka, a country where removals are currently very difficult, he cannot be allowed to benefit from his abuse of immigration control. The case should therefore be progressed for removal action."

12. That was signed by an officer with a different rank, but also of a rank authorised to make such decisions.
13. The Appellant has a number of criticisms in respect of the entry for 25 May, which is said in some respects to be factually inaccurate and in other respects to neglect to consider relevant matters. Ms Braganza today submits that the entry made on 24 May was a decision to grant indefinite leave to remain and that, and I quote from her skeleton at paragraphs 29C and D:

i. "As a matter of fairness, the need for transparency and good administration, the Respondent was required to communicate that decision to the Appellant. The failure to do so is contrary to those basic principles, that is to say to act reasonably, to act with fairness and transparency as a matter of good basic administration.

ii. D. Fairness and transparency required the Appellant to:

(2) have the decision communicated to him;

(3) absent special and exceptional reasons, to have leave granted to him. There are no such special or exceptional circumstances warranting such a course of action."

14. As to the subsequent entry on 25 May, she submits, and again I quote from her skeleton, that:

i. "It is unreliable and not of substance sufficient to override the previous lawful and comprehensively reasoned decision. It was an observation based on a misapplication of the facts and without regard to the decision previously taken."

15. She further makes a submission in reliance on Article 8. Ms Braganza concludes her skeleton by saying that she seeks permission to appeal the refusal of permission and thereafter permission to judicially review the Respondent's failure to communicate and effect her to clear decisions to grant ILR in this case.
16. The foundation of the Appellant's case, as I see it, is that once the entry was made on 24 May 2010 the Secretary of State had made and was bound by a decision to grant ILR. Save in what are described as exceptional circumstances, there was no right to revisit that decision even within a short period or even before communication of the decision might be expected to be made in the ordinary course of events.
17. Looking at the entry for 24 May, I am extremely doubtful that it could properly be described as a decision, given the failure to complete what immediately follows it and appears above the entry for 25 May. But even if the entry on 24 May 2010 can be described as a decision rather than some internal decision preliminary to a final decision being made, I do not think that it is arguable that the decision-making process is subject to as tight a straitjacket as is necessary for the present application.
18. It would, in my judgment, be extraordinary if an authorised decision-maker could not, even within a very short time, reconsider what he had recorded as his decision in circumstances where it had not been communicated and, having reconsidered, come to a different conclusion. In this case the further decision, even if that is a correct description, occurred the following day, so within a very short time of the entry made on 24 May. In my judgment, the entries on 24 and 25 May reflect stages in a decision-making process. The clock cannot be stopped at the moment the relevant officer finished making the entry on 24 May. The entry on 25 May cannot be ignored.
19. In the events which happened, in my judgment, it is not arguable that a decision binding on the Secretary of State was made by virtue of the entry on 24 May. Accordingly, I do not consider that there is an arguable basis for the judicial review proceedings which were issued and for which the Upper Tribunal refused permission in respect of that entry. On that ground, I refuse permission to appeal.
20. Ms Braganza in the course of her submissions has drawn to my attention orders made in the subsequent judicial review proceedings. Collins J sitting in the Upper Tribunal ordered on 27 May 2015 in paragraph 3:

i. "No doubt it would be sensible to await the decision of the Court of Appeal [that is effectively today's decision]. In the meantime, I give the Applicant leave to amend this claim to challenge the decision of 14 October 2014 provided the amendment is lodged within 21 days."

21. But I should read what he said in paragraph 2:

i. "I have no doubt that the Claimant has an arguable case [I interpose to say that is an arguable case in the more recent judicial review proceedings] having regard to the 24 May 2010 GCID notice which has not been referred to in the decisions [I interpose to say those are the decisions of the Secretary of State] made and which need to be explained by the Defendant, whose dealing with the Claimant's case has been thoroughly unsatisfactory having regard to the unacceptable delay."

22. Ms Braganza also read to me a decision made in the Upper Tribunal by Judge Gleeson on 11 November 2015 which, inter alia, states:

i. "The underlying issue affecting both these claims, that is to say the claim in the judicial review proceedings for which permission was refused by Judge Gill and also the subsequent judicial review proceedings in which Collins J made his order, is before the Court of Appeal and will be heard in early December 2015."

23. Her order goes on to say that if the Court of Appeal does not give permission to appeal, then there is no basis for the subsequent judicial review proceedings and they should stand dismissed.
24. Those Upper Tribunal proceedings in respect of the second judicial review challenge are not, of course, before me and I do not have, clearly, the full file in respect of them. But looking only at what I have been shown by Ms Braganza, there does appear to me to be some inconsistency between what Collins J said in his order of 27 May 2015 and what is said in the order of 11 November 2015.
25. The point that I would wish to make clear is this: the refusal of permission to appeal in the present proceedings is based on my conclusion that it is not seriously arguable that the entry recorded on 24 May 2015 constitutes a decision which is binding on the Secretary of State. It does not follow from that that the entry of 24 May 2010 has no part to play in the subsequent judicial review proceedings. Collins J clearly thought that it did have some part to play.
26. So as presently advised, but I say this with caution because I have not had sight of the relevant papers in the Upper Tribunal, it is not immediately apparent to me why the failure of the present application for permission to appeal must necessarily mean that the subsequent judicial review proceedings are bound to fail.
27. I will say no more about this. My ability to say anything is clearly very restricted by not having sight of all that is relevant.