England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		10 November 2006

Friday, 10th November 2006

1. MR JUSTICE SULLIVAN: In this application for judicial review the claimant seeks a mandatory order requiring the defendant to issue him with documents confirming his refugee status and granting him indefinite leave to remain in the United Kingdom.
2. The claimant arrived in the United Kingdom on 24th September 2001 and claimed asylum. He was interviewed on 30th October 2001 and his application was refused in a refusal letter dated 9th November 2001. Notice of the decision to refuse was served on the claimant and he submitted a notice of appeal dated 29th November 2001. Thereafter the claimant was in receipt of asylum support from NASS. He received a letter dated 23rd January 2004 inviting him to attend an appointment at Electric House, Croydon, for the purpose of replacing his standard acknowledgment letter with an application registration card. Mr Cooray, who appeared on behalf of the claimant, very properly accepted that, at least up to this point, the claimant could have been in no doubt that his application for asylum had been refused and, although there had been a substantial delay, that his appeal was still making snail-like progress through the appeal process.
3. A few days later the claimant received a letter dated 27th January 2004 from NASS saying, inter alia:

"Following confirmation that your application for asylum has been determined and the confirmation that you have been granted leave to remain in the United Kingdom, I am writing to advise that you no longer qualify for support under section 95 of the Immigration and Asylum Act 1999.

The support that you have been provided with is to be discontinued. Support is provided for a period of 28 days following the notification of the resolution of your asylum claim, which is deemed to be received 2 days following the determination of your asylum application. Our records show that your claim for asylum was determined on the 26th October 2001, therefore the period of support ended on 24th November 2001."

The notice accompanying the letter contained this warning:

"The Provision of this document to the above named asylum-seeker is not evidence that the Secretary of State has made a decision on the asylum claim. This document was issued on the basis of information regarding the asylum-seeker that was available to the National Asylum Support Service at the date that support was terminated. It does not confer, nor infer any right to remain in the United Kingdom for the above named asylum-seeker."

4. The claimant in his witness statement says that when he went to the appointment in Croydon on 9th February 2004:

"... I showed the immigration officer the correspondence I had from the IND, the immigration officer then went to speak to his senior, he then returned and informed me then there was no need to issue me with such card since I had been granted Leave to Remain. There was a card already prepared for me but I was not given in the light of this explanation, and was advised by IND to wait for my official status confirmation documents."

The claimant did not receive any "official status confirmation documents". He had not received any letter formally granting him asylum and/or indefinite leave. It is common ground that had his application been granted, he would have been sent by the defendant letters granting him asylum and granting him indefinite leave. The standard form letters would have explained the implications of those decisions, for example, that the claimant was now free to take a job and to use the National Health and Social Services and that any asylum support would cease 28 days after the date when his claim was recorded as having been determined.

5. Understandably the claimant's solicitors were puzzled and wrote to the defendant on 18th January 2005 saying:

"Our client is in receipt of a letter from NASS dated 27 January 2004; advising him that he has been granted Indefinite Leave to Remain in the UK. Their letter enclosed herewith for your perusal.

We have written to earlier in this relation but did not receive any reply. Please advise us as to the current position of his case since this situation has caused [a] lot of confusion on our client's part. Our client's NASS support has been stopped as a result of their information.

We look forward to hearing from you."

6. There was no reply to that letter or indeed to any of the subsequent correspondence from the claimant's solicitors prior to their letter before action dated 4 July 2005. However, on 26th August 2005, the defendant sent the appeal bundle to the Asylum and Immigration Tribunal and the claimant's representatives. In a witness statement a higher executive officer in IND has explained that:

"5. There was an entry in the Immigration and Nationality Directorate's Case Information Database (CID) dated 26 October 2001, which suggested that Mr Iqbal was granted asylum and Leave to Enter on 26th October 2001. There was another similar entry, dated 27 January [2004] which also suggested that Mr Iqbal was granted asylum and Leave to Enter.

6. These database entries are at odds with the Home Office letter of 09 November 2001, in which Mr Iqbal' asylum application was rejected.

7. I have conducted a thorough search of the Home Office file, and they only record on the file of an immigration decision having been made in Mr Iqbal's case is that of the Notice of Refusal of Leave to Enter dated 14 November 2001, a copy of which is contained in the attached exhibit. This Notice would have been generated subsequent to the Home Office's decision to refuse Mr Iqbal's asylum application dated 09 November 2001.

8. I am not able to explain why the record on the database of 26 October 2001 reflects a grant of asylum I can only are assume that: I can only assume that the entry itself was an administrative error.

9. I am also not able to explain why the record on the database of 27 January 2004 reflects a grant of asylum: I can only assume that this entry was equally made in error, and was prompted by the previous erroneous entry made on 26 October 2001."

The witness was not able to provide any explanation for the failure to respond to the correspondence from the claimant's solicitors.

7. Although Mr Cooray submitted that in the absence of a satisfactory explanation it should be presumed that the computer entries were correct. I am entirely satisfied that they were made in error. There is no reason to suppose that the second entry was not parasitic upon the first. The first entry dated 30th October 2001 predates the claimant's interview. It is highly unlikely that the claimant's claim for asylum would have been determined prior to his interview. In the unlikely event that his claim had been granted prior to the interview, then he would have been sent a standard form letter to that effect and would not have received the refusal letter dated 9th November 2001. It is of course possible that the claimant would not have received the standard form letter granting his asylum application and giving him indefinite leave to remain. But if such a letter had been sent then there would have been a record of that on the defendant's file. There is nothing on the defendant's file beyond the computer entry.
8. Mr Cooray submitted that the chain of events described above gave rise to a legitimate expectation on the part of the claimant that he had been granted indefinite leave to remain and that it would be unfair to allow the defendant to resile from that or decision. He cited the authorities in R v Secretary of State for the home department ex parte Ram 1979 1 WLR 148 and the Crown on the application of Consuelo Hashmi v the Secretary of State for the Home Department [2002] EWCA Civ 2002; INLR 377.
9. I accept the submission of Miss Olley on behalf of the defendant that both of these authorities are distinguishable and that there was no clear and unambiguous representation on which the claimant was entitled to, or indeed on which he did in fact, rely. In the case of Ram a passport was wrongly stamped with indefinite leave to enter. The present case might be comparable with Ram if, for example, the defendant had mistakenly sent out a letter granting the claimant asylum and indefinite leave to remain on 9th November 2001 instead of sending out the intended refusal letter. In the case of Hashmi [2002] EWCA Civ 728 the representation in question was a statement contained in a letter from the Secretary of State personally to the claimant's MP that:

"... we have decided exceptionally that the family may be granted indefinite leave to remain immediately." Such.

Such an unequivocal statement in writing from the Secretary of State personally is not to be equated with an opinion expressed by a Home Office official at an appointment arranged for the purpose of replacing one form of proof of entitlement to NASS support (an acknowledgment letter) with another (a registration card).

10. NASS is not responsible for granting or refusing asylum as the warning on the notice accompanying the letter dated 27th January 2004 makes clear. Plainly an official conducting an interview at such an appointment would not have had power to determine the claimant's application for asylum, as opposed to making inquiries to ascertain whether it had been granted or refused by another official acting on the defendant's behalf. Moreover, the claimant's solicitors, if not the claimant himself, would have been well aware that if there had been any grant of asylum it would have been recorded in writing and a statement in the course of a conversation could not sensibly be relied upon. The official's statement that indefinite leave to remain had been granted, while consistent with the letter dated 27th January 2004, was inconsistent with all of the other indications, namely the refusal letter, the absence of any formal letter granting asylum and/or indefinite leave to remain, and the fact that asylum support had continued for some years after 26th October 2001 when the letter dated 27th January 2004 said that the claim for asylum had been determined. Had it been determined on that date then the period of support should, as the letter pointed out, have ended on 24th November 2001.
11. In these circumstances there was no clear and unambiguous representation that the claimant had been granted asylum and indefinite leave to remain and at best the position following the interview in Croydon was a complete muddle which the claimant's solicitors sensibly attempted to sort out by their letter of 18th January 2005. It reflects no credit whatsoever on the defendant that the claimant's solicitors's letter and further chasing letters went unanswered. But it is clear that in January 2005 neither the claimant nor his solicitors felt able to place any reliance on the conflicting information that the claimant had received in 2004. In those circumstances any claim based upon a legitimate expectation is bound to fail. If and in so far as the very substantial delay on the part of the defendant in lodging the claimant's appeal papers with the AIT has caused any unfairness to the claimant, then that is a matter which can be raised before the AIT and the tribunal will be able to give that factor such weight as it considers appropriate in all the circumstances.
12. For these reasons this application for judicial review must be refused.
13. MR OLLEY: My Lord, I am grateful. I have no consequential applications.
14. MR JUSTICE SULLIVAN: I think that is very prudent.
15. MR KOORAY: My Lord, may I ask for income assessment?
16. MR JUSTICE SULLIVAN: You may, yes. You may have detailed assessment for publicly-funded costs.