England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/07/2012

Mr Justice Burton :

1. The claims arise out of the so-called "Legacy Cases". By the end of 2006, there was a massive and unmanageable backlog of asylum/human rights applications, by which the Defendant was overwhelmed. Collins J addressed some of the problems in his judgment in FH & Others v Secretary of State for the Home Department [2007] EWHC 1571 (Admin) (5 July 2007). The decision was taken 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.
2. By July 2011 there was a rump of some 116,000 cases, consisting in part of 18,000 still active cases and in part of what was called a "controlled archive" of some 98,500 cases where for one reason or another there were particular difficulties in investigation. The remaining active cases and the controlled archive were transferred, in July 2011, to a new body, consisting of a team of some 90 caseworkers, who were to continue to work on them and resolve them, the Case Assurance and Audit Unit ("CAAU"). In respect of three of the four Claimants before me their cases were considered and resolved by the CRD (decisions being given in October and November 2010): that of the Fourth Claimant was passed to the CAAU and decided in July 2011.
3. Permission was granted for judicial review in the four cases upon grounds not all of which have, in the event, been pursued, and Mr Southey QC, who has with Ms Braganza represented all four has, at my suggestion, formulated, without opposition from Ms Anderson, for the Respondent, Amended Grounds, succinctly setting out the heads of arguments for a claim upon which he now relies.
4. It is worth setting out what case is not pursued:

i) It seems that at an earlier stage it was suggested that the reference of the Legacy Cases to the CRD and/or the CAAU amounted to an "amnesty", of whose benefit the Claimants sought to argue they had been deprived by their applications being refused. That is not now pursued. Although the legacy process, over its five years or so of operation, did result in considerably more grants than refusals, there was no amnesty, and none is now alleged.

ii) It was also suggested that there was a case of 'inconsistent treatment' by comparison with the decisions given in other cases. That too is not now pursued.

5. The Amended Grounds are as follows:

"The Defendant erred in law as follows:

1. In failing to seek Parliamentary approval for a modification of her policy and practice as applied to those considered by the Defendant's Case Resolution Directorate and subsequently the Case Assurance Audit Unit, specifically in the application of the policy and/or practice that leave would be granted to those with 6 years' residence and as per Pankina.

2. In publicising and or informing those considered by the Defendant's Case Resolution Directorate and subsequently the Case Assurance Audit Unit not to contact the Defendant's CRD, whilst informing her CRD caseworkers in guidance and training slides that "A person who has actively attempted to resolve their status through requesting progress reports, for example, will have a stronger case than someone who has simply taken advantage of the delay and not made any contact to attempt to regularise their position.".

3. In failing to publicise aspects of her practice and policy, as detailed within training slides and applied by the CRD, in particular that:

a. a person who has actively attempted to resolve their status would have a stronger case;

b. "all things being equal" 6 years' residence would result in a grant of leave;

c. the prospects of removal would be considered a relevant factor.

4. In failing to consider that delay on the part of the Defendant in enforcing removal was a relevant factor.

5. In the circumstances of these applications in failing to provide these Claimants with the opportunity for interview or to provide representations.

6. In failing to provide sufficient reasons."

6. The CRD was to consider the grant of leave outside the Immigration Rules but by reference to paragraph 395C, which states:

"Before a decision to remove under section 10 is given, regard will be had to all the 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) domestic circumstances;

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

(vii) compassionate circumstances;

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

There is then further reference to family members/children, not relevant in this case; all four of the Claimants are, and have been, single, without wives, partners or dependants.

7. Chapter 53 of the Enforcement Instructions and Guidance ("EIG") was at all material times the published guidance, its purpose being described as "to provide CRD caseworkers with clarification on the consideration of the 'relevant factors' in paragraph 395C of the Immigration Rules". There were two amendments, in April and August 2009, giving some more specific guidance in respect of length of residence, which, as explained by Mr Forshaw, Assistant Director of UKBA, did not constitute material changes. However in any event it is common ground that the format of Chapter 53 by reference to which the cases for all these four Claimants fell to be considered post-dates those amendments. As amended, it read as follows (in material part):

"53. Extenuating Circumstances

It is the policy of the Agency to remove those persons found to have entered the United Kingdom unlawfully unless it would be a breach of the Refugee Convention or ECHR or there are compelling reasons, usually of a compassionate nature, for not doing so in an individual case.

53.1 Illegal entrants and persons subject to administrative removal action under section 10 of the 1999 Act

Full account must be taken of all relevant circumstances before a decision to remove is taken on a case.

The factors to be considered are the same as those outlined in paragraph 395C of the Immigration Rules.

53.1.1 Instructions on applying paragraphs 364 to 368 and 395C of the Immigration rules

Before a decision to remove is taken on a case, the case-owner/operational staff must consider all known relevant factors (both positive and negative). It is important to cover the compassionate factors in the transcription of the interview and to record them and the fact that you have discussed them with the UKBA officer authorising removal, on the local file minute or IS126E and UKBA internal database records (CID). Removal should not be considered in any case which qualifies for leave under the Immigration Rules, existing policies or where it would be inappropriate to do so under this policy.

Relevant factors are set out in paragraph 395C of the immigration rules and in the guidance below, but this list is not exhaustive …

53.1.2 Relevant Factors in paragraph 395C. [I add subparagraph numbers]

(i) The consideration of relevant factors needs to be taken as a whole rather than individually, for example, the length of residence may not of itself be a factor, but it might when combined with age and strength of connections with the UK.

…

Length of residence in the United Kingdom

For those not meeting the long residence requirements elsewhere in the immigration rules, the length of residence is a factor to be considered. In general, the longer a person has lived in the UK, the stronger their ties will be with the UK. However, more weight should be attached to the length of time a child has spent in the UK compared to an adult.

(ii) Residence accrued as a result of non-compliance by the individual

Where there is evidence of an attempt by the individual to delay the decision making process, frustrate removal or otherwise not comply with any requirements imposed upon them, then this will weigh against the individual. …

(iii) Residence accrued as a result of delay by UKBA

Case law has established that there are particular contributory factors involving delay that need to be present before it is considered significant enough to grant leave (Court of Appeal judgment in HB (Ethiopia) & others v SSHD [2006] EWCA Civ 1713 refers).

These include cases where:

an application has been outstanding for over 2 years; and

no decision has been received from the UK Border Agency during that time; and

the individual has been making progress enquiries during that time;

in the meantime the delay has meant that they have built up significant private or family life or the delay has resulted in considerable hardship:

(iv) In addition to the foregoing, provided that none of the factors outlined in 'Personal History' weigh against the individual, then caseowners should also place weight on significant delay in cases where, for example:

An initial application or an 'in-time' application for further leave (an application made before the individual's leave to enter/remain had expired) was submitted some time ago. A significant delay in such cases considered as being between 3-5 years.

'Family' cases where delay by UKBA has contributed to a significant period of residence (for the purposes of this guidance, 'family' cases means parent as defined in the Immigration Rules and children who are emotionally and financially dependent on the parent, and under the age of 18 at the date of the decision). Following an individual assessment of the prospect of enforcing removal, and where other relevant factors apply, a 3 year period of residence may be considered significant, but a more usual example would be 4-6 years. Family units may also be exceptionally considered where the dependent child has experienced a delay of 4-6 years whilst under the age of 18.

Any other case where delay by UKBA has contributed to a significant period of residence. Following an individual assessment of the prospect of enforcing removal, and where other relevant factors apply, 4-6 years may be considered significant, but a more usual example would be a period of residence of 6-8 years".

8. In the pages which follow there is discussion of other relevant factors, such as personal history, strength of connections with the UK, domestic and compassionate circumstances and consideration of representations received. Mr Forshaw, in an email of 29 October 2010 to Ms Jo Puddick, one of the team managers, wrote that:

"… as the 395C exercise requires a holistic evaluation of cases based on a range of factors – both positive and negative – it does throw up borderline cases where it is difficult to say definitively that it is clearly a case where either refusal must proceed or leave [be] granted. We have generally taken the approach that where a case is genuinely borderline – most often if the negatives associated with an applicant are associated with non-compliance behaviour, rather than criminality – it is more likely that we would err on the side of granting. But we do apply the guidance on non-compliance as detailed in Chapter 53 of the [EIG]."

Training was given throughout the period to the CRD team members, and Mr Forshaw emphasises that they were trained to make decisions on the basis of the published policies.

9. The CAAU operated by reference to the same principles as the CRD, and, in particular, by reference to Rule 395C and Chapter 53. Mr McEvoy, the Assistant Director of the CAAU, explains however that, of the active cases transferred from CRD to CAAU at the outset, there were approximately 4800 which had reached a stage at which they now required an urgent decision. An email, dated 31^st August 2011, has been disclosed which he sent in relation to those cases, where he indicated that it had been discussed and agreed that, with regard to them, "the most appropriate way to deal with these cases is to apply the following criteria under paragraph 395C … use the lowest limit of 4 years' residency for single applicants … use the lower limit of 3 years' residency for families". Mr Forshaw and Mr McEvoy both explained that this did not involve any change in approach, and I shall return to this matter further below, but, in any event, it did not apply to any of the Claimants: the first three Claimants' cases had already been decided by CRD, and the Fourth Claimant's case had been resolved by the CAAU in July 2011, and did not form part of the 4800 cases being referred to.
10. I turn to the issues in the Amended Grounds. The first four of the six are general grounds which require no special consideration of the facts identifying the cases of the four Claimants. But it is convenient at this stage to set out relevant dates in relation to each of them:-

i) First Claimant:

Entered the UK on or about 4 December 2005

Asylum claim refused 15 December 2005

Appeal rights exhausted 3 February 2006

[qualified for CRD consideration, as application made prior to 5 March 2007].

Further information requested by Defendant 5 August 2010

Submissions (treated as an application to make a fresh claim)

by Claimant 6 August 2010

Refused 15 October 2010

[4 years 10 months after entry]

ii) Second Claimant:

Entered UK on or about 29 March 2005

Asylum claim refused 4 May 2005

Appeal rights exhausted 18 July 2005

[qualified for CRD consideration, as application made prior to 5 March 2007]

Submissions to Defendant (treated as an

application to make a fresh claim) 9 September 2010

Refused 21 October 2010

[5 years 7 months from entry to UK]

iii) Third Claimant:

Entered UK on or about 26 January 2005

Asylum claim refused 22 March 2005

Appeal rights exhausted 5 September 2005

[qualified for CRD consideration, as application made prior to 5 March 2007]

Letter from Claimant requesting update 19 January 2009

Response 1 July 2009

Further letter 18 February 2010

Submissions (treated as an application to

make a fresh claim) 9 July 2010

Refused 25 Nov 2010

[5 years 10 months after entry to UK]

Further letters refusing claim 14 January & 1 February 2011

And, after interview on 10 February 2011, again on 11 February 2011.

iv) Fourth Claimant:

Entered UK on or about 6 July 1999

Asylum claim refused 18 June 2001

Appeal rights exhausted 3 April 2003

[qualified for CRD consideration, as application made prior to 5 March 2007]

Submissions (treated as an application to make a fresh claim)

22 September 2008

with further letters dated 6 January, 15 April, 17 July, 28 September and 21 October 2009 and (after further information sought by the Defendant on 28 June 2010) by letters dated 5 July 2010 and 6 April 2011.

Refused 27 July 2011

[12 years after arrival in the UK]

1. Pankina

11. The decision in Pankina v Secretary of State for the Home Department [2011] QB 376 was based upon the proposition that the Immigration Rules require Parliamentary scrutiny (per Sedley LJ at paras 18, 21 and 33), and that any change in the Rules, or any addition to those Rules, also requires such scrutiny. Mr Southey drew attention to the subsequent dictum of Foskett J in R (English UK) v Secretary of State for the Home Department [2010] EWHC 1726 (Admin) at 59-60, quoted with approval in R (New London College Ltd) v Secretary of State for the Home Department [2012] EWCA Civ 51 by Richards LJ, that "the ratio of the decision [in Pankina] appears to me to be that a provision that reflects a substantive criterion for eligibility for admission or leave to remain must be the subject of a process that involves a true Parliamentary scrutiny". However, it is important to note that Richards LJ immediately continued, at paragraph 38 of New London College, after reciting that dictum:-

"It followed that, if a change to current practice did not involve any alteration of a substantive criterion for admission or for leave to remain, there would be no objection to the change being effected in some form of extrinsic guidance."

12. In order for Mr Southey to take advantage of Pankina (and in particular Pankina as clarified in New London College) he must show that, without Parliamentary scrutiny (i) there has been a change to current practice as enshrined in a rule that had received Parliamentary scrutiny and (ii) such change involved an alteration of a substantive criterion for admission or for leave to remain.
13. Rule 395C simply sets out factors which must be considered. Chapter 53 did not affect or fetter such considerations, or change them. It gave guidance by way of a very broad spectrum for residence (in the case of a single applicant, such as the Claimants) of 4 to 8 years. I say residence, because it is quite apparent that the reference in Chapter 53.1.2 in the last bullet point of (iv) to "delay" is not to a delay for which the Defendant is responsible, e.g. by way of delaying in dealing with the initial consideration, refusal (if such it be) and appeal, but to 'delay' by virtue of passage of time (see further paragraph 36 below).
14. Six years is a half-way point between 4 years and 8 years. Mr Southey refers, in paragraph 3(b) of his Amended Grounds, to which I shall come, to the alleged practice or policy that, "all things being equal", six years' residence would result in a grant of leave, and this alleged statement of practice or policy is what is said to amount to a change or an alteration of a substantive criterion for leave to remain.
15. The words are drawn from the first statement of Mr Forshaw at paragraph 22. Mr Forshaw was responding to a witness statement served on behalf of the first three Claimants by a solicitor Mr Saleem, who had carried out a review of some other cases in apparent support of the amnesty/inconsistency arguments to which I have referred in paragraph 4 above. Mr Saleem said:

"34. It is fair to say that my experience has shown in almost all of the cases that have been granted to the best of my knowledge were all individual [sic] who had been in the UK in excess of 6 years."

Mr Forshaw's response was as follows:-

"22. It is not clear to me the point which Mr Saleem seeks to make at paragraphs 34 and 35 of his statement. As indicated above, it is accepted that the EIG was changed in 2009 for all cases to allow caseworkers across the UKBA to take into account as potentially significant a period of residence of 6-8 years with a lower limit of 4 years, whereas before there was no stated period (and a significant period of residence would at that time have been informed by the Rules which have long provided that 10 years residence would be sufficient to qualify for indefinite leave to remain if that residence were lawful or 14 years if it were not). Once the reference to guidance alluded to at paragraph 33 of Mr Saleem's statement is properly understood to refer to the EIG which is a published policy general to the whole of the UKBA, Mr Saleem's statement appears to adopt the Secretary of State's position that caseworkers are following that policy in granting (other factors being equal) where a person has resided in the UK for 6 years whereas before they would not have done so until residence had reached around 10 years (although this figure was never specified). I should also note that this is not inconsistent with the facts in the instant cases where the Claimants had, at the date of decision, all been the UK for less than 6 years."

He refers also (at paragraph 30) to Mr McEvoy's explanation, with regard to the 4800 cases to be speedily dealt with by CAAU (referred to in paragraph 9 above), of his 31 August email, that its intention was "to draw caseworkers' attention to the lower limits of residence and other factors (as then stated in EIG) and did not represent any different criteria." It is quite clear to me that there was no change in Rule 395C, but simply discussion and guidance in relation to the factors to be taken into account, always subject to what Mr Forshaw called (as set out in paragraph 8 above) the holistic approach.

16. In any event I find it difficult to see what case would be made which could benefit the Claimants, even if there were a Pankina argument:

i) If it were capable of being suggested that there was some alteration of a substantive criterion, so that a claimant achieving that length of residence would "all things being equal" be entitled to leave to remain, then the Fourth Claimant would if "all things were equal", have been entitled to leave to remain, and he would not wish to challenge, by reference to Pankina or otherwise, the effect or validity of such alleged policy, but would be seeking to take advantage of it.

ii) So far as the other three Claimants are concerned, they had not (subject to any technical argument that could be made by reference to the fact that the Third Claimant made yet a further fresh claim, and it was yet further refused) achieved the six years' residence. The success or otherwise of the Pankina argument would not appear to avail them.

17. In my judgment there is no substance in the first of the Amended Grounds.

2. Progress Reports

18. The training slides prepared by the Defendant for the training of the Caseworkers involved with the CRD, as part of its guidance as to the approach to the Legacy cases, contained the following passage:

"The individual's personal history will be particularly relevant where residency has been built up as a result of the person evading enforcement action, as it would not be appropriate for a person to benefit from refusing to co-operate with the Home Office. However the strength of the connections that the person has established and any compassionate circumstances should still be carefully considered … An individual's lawful employment history and how they have supported themselves and/or their family during their stay in the UK may also be relevant to consideration of their personal history. Similarly the individual's effort to actively press for resolution of their immigration status will add weight to any delays suffered. A person who has actively attempted to resolve their status through requesting progress reports, for example, will have a stronger case than someone who has simply taken advantage of the delay and not made any contact or attempt to regularise their position."

19. This passage is repeated, in whole or in part, on three other occasions in the various training slides.
20. Mr Southey's second ground is that "whilst" this was stated in the Training Slides, those whose cases were being considered by the CRD were told not to contact the CRD.
21. What was in fact said in letters sent to the First Claimant (letter of 5 August 2010) and to the Fourth Claimant (letter of 28 June 2010) – and in another blanked out letter in the papers, addressed to another asylum applicant – was (after requesting photographs, identity documents and any other relevant documents because "it is important that we hold the most recent information about your case"), as follows:

"Please send your photographs and any other documents along with the completed form sent with this letter, to the address at the top of this letter … If you do not return the documents requested above, we will consider your case on the documents available to us.

We ask that you do not make routine telephone or written enquiries about the progress of your case, as this diverts our resources from resolving cases … Should we require any further information about your case, a UKBA colleague will contact you … You should note that if you send us information other than that requested above, this will be treated as information only and will not be accepted as 'Further Submissions' to your asylum/human rights claim. Further Submissions to your asylum/human rights claim must be submitted in person at our Liverpool office. Guidance on what UKBA would like to see from any further submissions and details of how to submit them can be found on the UKBA website."

22. On the UKBA website there was considerable information in relation to the Legacy Cases and explaining the order of priority with which they were dealing with them. It then stated:

"Because we have so many cases to deal with, we cannot give you a precise date for when we will consider yours.

You can help to speed up consideration of your application by making sure that you have given the UK Border Agency your current address. Then you should wait until we contact you. If we feel we need more information from you, we will send you a questionnaire asking you to give us all your current reasons for wishing to stay in the United Kingdom …

We will deal with truly exceptional or compassionate cases earlier if there are compelling reasons for doing so."

23. There is then reference to questionnaires which may be sent out:

"Not all applicants will receive a questionnaire … We will only send you a questionnaire if we think we need more up to date information from you. If we have not sent you a questionnaire it may be because we do not need to, because we have contacted you in another way or because we are not yet ready to consider your case. You should wait until we contact you."

24. It may be that the website changed from time to time, because, in a report by the Independent Chief Inspector of the UKBA for July to November 2009, at p3, he stated:

"… The UKBA website contains the following guidance for individuals wishing to contact CRD staff:

In all cases we would prefer to receive correspondence only if further or supporting evidence is to be provided. Enquiries about the progress of a case may slow down the consideration process.

You can contact the case resolution directorate in the following ways:

If you have received a notification letter and you want to provide further information or enquire about your case, you should write using the details indicated in the notification letter.

If you have an enquiry or you want to provide further information about a case but you have not yet received a notification letter, you should contact the UK Immigration Enquiry Bureau below."

25. In Chapter 53 itself, as referred to in paragraph 8 above, the published guidelines, it stated:

"Any representations received on the person's behalf:

These must always be considered and given due weight. Individuals may raise other relevant factors not listed above. These should be fully considered on a case by case basis."

Further paragraph 395C itself included the express reference at (viii), set out in paragraph 6 above, to the same effect.

26. It is clear to me that there is and was a distinction in relation to the Legacy Cases between the discouraging of routine chasing up of the CRD, with its massive backlog of cases which it was to work through, in accordance with published priorities and guidelines, over the period of up to five years, and the giving of further information – that would not be treated as a fresh claim (within Rule 353) - which would need to be separately submitted to the Defendant's Liverpool office - but would be treated as "information only".
27. That the Claimants were not discouraged by this can be seen from the facts that:

i) The First Claimant, after his receipt of the 5 August 2010 letter, made a further submission by way of fresh claim on 9 September 2010.

ii) The Second Claimant made a fresh claim, by attendance at Liverpool on 1 September 2010.

iii) The Third Claimant (after chasing for progress on 15 January 2009 and 18 February 2010) attended at Liverpool on 9 July 2010 to make a fresh claim.

iv) The Fourth Claimant, after his receipt of the letter of 28 June 2010, made a fresh claim on 5 July 2010 and again on 6 April 2011.

They were plainly thereby "attempting to regularise their position".

28. It is quite plain that what the training files were addressing related to how asylum applicants (all of whose claims had been made in most cases well before 5 March 2007) had dealt with and/or were dealing with their application or any fresh application, rather than to the question of whether or not applicants or their representatives were, routinely, chasing the caseworkers (otherwise than by giving further information). Mr Forshaw said, in his third witness statement, put in after the hearing, clarifying a hearsay witness statement recorded from him by telephone put in during the hearing by the Defendant's solicitor, that simply chasing CRD for an update on where a case was in the queue was not the kind of matter that would have been had in mind as a relevant factor. He said:

"5. … The simple point is that those who had taken steps to obtain leave to remain in the UK during their time here and had followed those up if there was a delay in consideration of an application would be given credit for that. It was unlikely to be a very weighty matter compared to the other relevant factors, although each case would be considered on its own facts.

6. Whether a person, with no outstanding representations or applications, chased up the CRD for an outcome of the review of their case was not considered to be a relevant factor given that the legacy exercise automatically considered every outstanding case and for resource reasons chasers were not encouraged. If chasers of CRD were received, that was dealt with as correspondence and did not form part of the substantive consideration of the review.

7. There was a distinction between chasing enquiries and provision of further information which went to the substantive consideration of the review. There was no intention to discourage persons who considered that they had information relevant to their case from providing it to CRD … CRD received further information in many thousands of cases for its review."

29. Mr Southey suggests in a further Note that there is some uncertainty or ambiguity in the approach that Mr Forshaw describes. It seems to me however that what he says is consistent with the publicised words of Chapter 53 itself namely:

"Caseowners must also take into account … whether the individual has maintained contact with the UK Border Agency as required and whether they have been actively pressing for resolution of their immigration status."

30. I conclude that there was neither unfairness nor inconsistency in this regard.

3. Failure to publicise aspects of practice and policy

31. The proposition relied upon by Mr Southey of an allegation of failure to publicise "aspects of her practice and policy" by the Defendant is derived from R (Lumba) v Secretary of State for the Home Department [2011] 2 WLR 671, where there was an unpublished policy of blanket detention for all foreign national prisoners upon completion of their sentences of imprisonment, such policy being inconsistent with both the published policy that such prisoners should be detained only when their continued detention was justified and with the power to detain provided by statute. Lord Dyson, with whose speech all save Lord Phillips (dissenting in part) agreed, set out the following reasons why the policies which were applied were unlawful:

"34. The rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised. Just as arrest and surveillance powers need to be transparently identified through codes of practice and immigration powers need to be transparently identified through the immigration rules, so too the immigration detention powers need to be transparently identified through formulated policy statements.

35. The individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt, provided that the adopted policy is a lawful exercise of the discretion conferred by the statute … There is a correlative right to know what that currently existing policy is, so that the individual can make representations in relation to it …

36. Precisely the same is true of a detention policy. Notice is required so that the individual knows the criteria that are being applied and is able to challenge an adverse decision ...

37. There was a real need to publish the detention policy in the present context … The failure to publish these policies meant that individuals who may have been wrongly assessed as having committed a crime that rendered them ineligible for release would remain detained, when in fact, had the policy been published, representations could have been made that they had a case for release.

38. The precise extent of how much detail of a policy is required to be disclosed was the subject of some debate before us. It is not practicable to attempt an exhaustive definition. It is common ground that there is no obligation to publish drafts when a policy is evolving and that there might be compelling reasons not to publish some policies, for example, where national security issues are in play. Nor is it necessary to publish details which are irrelevant to the substance of decisions made pursuant to the policy. What must, however, be published is that which a person who is affected by the operation of the policy needs to know in order to make informed and meaningful representations to the decision-maker before a decision is made."

32. I am satisfied that these important propositions, insofar as relevant at all in this case, were not breached. There was full publication of the practice and policy of the Defendant, namely being that there would be a discretionary application of a policy which gave a very wide discretion, but which set out, in paragraph 395C, a non-exclusive list of relevant factors to which the Secretary of State would have regard, which factors were discussed and expanded upon at length in Chapter 53. Chapter 53, as set out in paragraph 7 above, makes it clear that (53.1) full account would/must be taken of all relevant circumstances before a decision to remove was taken on a case, that (paragraph 53.1.1) all known relevant factors (both positive and negative) would/must be considered and that the list of relevant factors in Rule 395C and the Guidance set out below was not exhaustive, and that (53.1.2) the consideration of relevant factors would/needs to be taken as a whole.
33. In my judgment this was quite sufficient both to make the policy clear, and also to encourage the making of representations, which would, as set out in paragraph 25 above, be considered: as there appears, there was actually listed in Rule 395C, as a matter to which the Secretary of State was required to have regard, "(viii) any representations received on the person's behalf" (my underlining).
34. As to the particular matters said by Mr Southey in his Amended Grounds under this paragraph not to have been published:

i) Active attempts to resolve the Claimant's status. This has been discussed in paragraphs 18 to 30 above. The complete answer to this argument is the passage actually publicised in Chapter 53, set out in paragraph 29 above.

ii) "6 years' residence all things being equal". This has been discussed in paragraphs 13 to 16 above. In any event, the factor discussed by Lord Dyson in Lumba, as to the individual being able to make relevant representations, is plainly inapt here, for the period of residence is known to both the Claimants and the Defendant, and speaks for itself, whatever the policy is.

iii) Prospects of removal are again expressly referred to in Chapter 53 by reference to length of residence: it is there expressly said (see paragraph 7 above) that any decision will "follow an individual assessment of the prospect of enforcing removal".

4. Delay in enforcing removal

35. In Chapter 53 there is express reference to "Residence accrued as a result of delay by UKBA" (see paragraph 7 above) with reference to HB (Ethiopia) v SSHD [2006] EWCA Civ 1713. There is no room for challenging that authority, nor has any other authority been relied upon by Mr Southey to establish that the Defendant should be regarded as culpable in respect of "failing to enforce removal". No such case was suggested, or if suggested not supported by Collins J in FH.
36. If there had been culpable delay by the Defendant in dealing with the initial asylum or human rights application, then that would be taken into account, as Mr Southey accepts. But once the application has been dealt with and all rights of appeal extinguished, then what has occurred is that the failed asylum seeker has not left the jurisdiction, as he plainly ought to have done, not having any leave to remain, while the Defendant has not taken any steps, or been so overwhelmed with the backlog that it has been unable to take steps, to enforce that obligation of the failed applicant. The 'delay' is simply the same as the passage of time, which, of course, was inevitably being considered in the Legacy Cases. If anything, such passage of time would be held against the failed applicant, if he or she has, for example, failed to comply with reporting requirements, or acted with deception: see the passage in Chapter 53, part of which has already been recited in paragraph 29 above:

"Caseowners must also take account of any evidence of deception practised at any stage in the process, attempts to frustrate the process (for example, failure to attend interviews, supply required documentation), whether the individual has maintained contact with the UK Border Agency, as required, and whether they have been actively pressing for resolution of their immigration status. The caseowner must assess all evidence of compliance and non-compliance in the round. The weight placed on periods of absconsion should be proportionate to the length of compliant residence in the UK. For example, additional weight should be placed on lengthy periods of absconsion which form a significant proportion of the individual's residence in the UK."

37. There is no basis in law for the Defendant to be required to ascribe to herself any delay other than that referred to in paragraph 13 above. If such were the case then it would have applied in every Legacy Case. If there is no basis, as I am satisfied, for ascription of any such responsibility to the Defendant, then there is also no failure to consider or take it into account.

These Claimants

38. As set out in paragraph 10 above, paragraphs 5 and 6 of the Amended Grounds relate to the particular facts of these Claimants. It is important to appreciate that, although set into what is listed and sought to be argued as a general challenge to the operation of Legacy Cases, this becomes, when it is applied to the particular Claimants, no different from an ordinary application by reference to Rule 353, which is a well-trodden path, and as to which I need recite no authority, save perhaps the most recent decision in R (MN (Tanzania)) v Home Secretary [2011] 1 WLR 3200. Insofar as there is a 'reasons challenge' the Defendant refers to R (on the application of Westech College) v Secretary of State for the Home Department [2011] EWHC 1484.
39. In each case the Claimant complains that he did not have the opportunity to put in representations, either because he was not specifically invited to do so, or because he did not appreciate, because of the alleged unpublished nature of the factors being considered, what matters he ought to be putting forward (a matter I have resolved against them above). The fact is that in each case they did in the event not leave it to the CRD, but made (in the case of the Third and Fourth Claimants on more than one occasion) fresh claims, adding fresh information, as they were invited to do (see paragraphs 21 to 27 above) by reference to Rule 353. It is apparent that those submissions were fully considered, and indeed, in the case of the Third Claimant, there was an interview.
40. Mr Southey made clear in the course of his submissions that he was not alleging that there was an obligation in every case either to supply a questionnaire or have an interview, and I am entirely satisfied that, addressing the circumstances of these four Claimants, to which Mr Southey accordingly limited his case, they all had full opportunity to make out their case, and in the case of the Third Claimant, there was an interview. All four of the Claimants are single and without children. There is a history in respect of all four of them whereby for lengthy periods of time they did not report, but, in relation to the Third Claimant, the Defendant accepts that he was not provided with any reporting conditions, and in respect of the other three there were reporting conditions but there is a dispute which I am unable to resolve, in relation to at least a material part of their periods of residence, as to whether they were compliant with them.
41. As for residence, there is the fact, apparent from paragraph 10 above, that three of the Claimants were pretty close to the 6-year period when Mr Forshaw accepts that "all things being equal" they would be likely to have been granted leave, but in each case the Defendant concluded, and still concludes, that all things are not equal for the reasons set out at length in the UKBA refusal. As for the Fourth Claimant, he plainly falls within the passage of Chapter 53, cited at paragraph 36 above, relating to deception. Although his asylum application failed, including failure on appeal, it is apparent that, had he told the truth, he would never have had an arguable asylum claim at all. He asserted that he was a national of the former Federal Republic of Yugoslavia from Kosovo, that the Serbs firebombed his family home in Serbia while the family was asleep, and that both his father and mother were killed in front of him. By letter dated 6 January 2009, nine years after his unlawful entry to the UK, his solicitors wrote on his behalf a letter headed "Mr Edison Mustafaj nationality Albania" asking the Defendant to "amend your records … as our client is in fact from the Republic of Albania". It subsequently became clear that both his parents are still alive and living in Albania.
42. I have read the detailed and fully reasoned responses by the Defendant to the applications, and in particular to the Claimants' fresh claims under Rule 353, which of course took into account all matters previously put forward by them or on their behalf as well as the information contained in the fresh claims, in the refusal letters, in each case with lengthy schedule attached, on the dates which I have set out in paragraph 10(i) to (iv) above. I conclude that these cases have been fully considered as part of the Legacy procedure, and that in any event they have been considered and lawfully and reasonably resolved pursuant to Rule 353, and there is no basis for challenge to the Defendant's decisions by reference to Grounds 5 (opportunity to provide representations etc) or 6 (failure to provide sufficient reasons) or otherwise. Insofar as there are further matters put forward by the Claimants in these proceedings (all of which could have been previously put forward) there is nothing which begins to constitute an arguable fresh claim.

Result

43. These applications are consequently dismissed.