QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| (1) HIWA HAKEMI
(2) HAVAL SHAHAB AHMED
(3) SORAN AMIN
(4) EDISON MUSTAFAJ
|- and -
SECRETARY OF STATE FOR THE
MR HUGH SOUTHEY QC and MS NICOLA BRAGANZA (instructed by Blavo & Co) for the Fourth Claimant
MS JULIE ANDERSON (instructed by Treasury Solicitor) for the Respondent
Hearing dates: 2 and 3 July 2012
Crown Copyright ©
Mr Justice Burton :
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.
"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."
"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:
(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.
"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  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".
"… 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.
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]
"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."
"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.
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.
2. Progress Reports
"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."
"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."
"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."
"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."
"… 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."
"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.
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".
"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."
"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."
3. Failure to publicise aspects of practice and policy
"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."
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
"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."