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
		2 November 2012

Mr Stephen Morris QC :

Introduction

1. The Claimant, Fatima Farhana Mohammed, seeks judicial review of the refusal of the Defendant, the Secretary of State for the Home Department, to grant her leave to remain in the United Kingdom under paragraph 395C of the Immigration Rules, in circumstances where her case fell within "the legacy programme" formerly dealt with by the Defendant's Case Resolution Directorate ("CRD"). This challenge is directed, principally, to a decision contained in a letter from the Defendant dated 7 February 2011 ("the 7 February 2011 letter"). The Claimant contends that the decision in that letter was Wednesbury unreasonable and/or conspicuously unfair.
2. More recently and in the course of these proceedings, on 6 August 2012, the Claimant made further representations, based on further evidence, which she claims has recently been received from Sri Lanka. As at the date of the hearing, the Defendant had not yet responded to these further representations and was not able to say when they would be dealt with. The parties nevertheless agreed that the existing challenge to the decision in the 7 February 2011 letter falls for determination. I note now that in fact, since the hearing, the Defendant may have made a further decision. However neither party has made any further submissions to suggest that any such further decision is relevant to the matters here in issue.
3. This application has come before me by way of a "rolled up" hearing, as directed by Singh J on 1 December 2011. I should state at the outset that I am satisfied that the Claimant's case is arguable and accordingly I grant permission to apply for judicial review. In the remainder of this judgment, I consider the substantive claim for judicial review. My conclusion is stated at paragraph 101 below.

Factual background

The Case Resolution Directorate and "legacy" cases

4. The Claimant's case is what is commonly referred to as a "legacy case". A "legacy case" is an unresolved asylum case, where the claim for asylum was made before 5 March 2007, and where, for a variety of reasons, the claim had not been finally concluded. Included within the class are cases where the asylum claim had been refused, but where the applicant had not yet left the UK or where further representations had been made. The CRD was set up in the summer of 2006 specifically for the purpose of dealing with such legacy cases. The Claimant's case fell to be dealt with by the CRD. The CRD closed on 1 April 2011 and outstanding cases were transferred to a new unit within the UK Border Agency ("UKBA"), the Case Assurance and Audit Unit ("CAAU").
5. The CRD and so-called "legacy" cases are considered in some detail in the recent decision of Burton J in Hakemi and others v SSHD [2012] EWHC 1967 (Admin), to which I refer in paragraphs 45 to 50 below.

The Claimant's immigration history

6. The Claimant is a Sri Lankan national aged 50. She has been in this country for almost 11 years. She arrived in the United Kingdom on 19 December 2001 with a visa valid until April 2002. After her visa expired she remained in the United Kingdom. On 4 October 2002 she was arrested and claimed asylum. Her asylum claim was refused in a letter dated 27 November 2002. She appealed to an adjudicator, who dismissed her appeal in a determination promulgated on 29 July 2003. Her appeal rights were exhausted on 1 September 2003.
7. In 2004 the Claimant applied for indefinite leave to remain, on the ground that she had been working in Sri Lanka for the British High Commission for 11 years. That application was rejected by the Defendant by decision letter dated 9 August 2006. Two days later, the Claimant was detained for the purposes of removal, set for 16 August 2006. On the same day, however the Claimant lodged a fresh asylum claim and on 16 August 2006, applied for judicial review. Permission was refused on the papers on 15 November 2006 and no renewal application was made. Until November 2006, the Claimant regularly reported to the UKBA. The Defendant maintains in the Detailed Grounds of Defence ("Detailed Grounds") that from November 2006 onwards she did not report.
8. On 23 April 2007 the Claimant submitted further representations to the Defendant. By decision letter dated 21 October 2008, the Defendant refused to treat those representations as a fresh claim. On 25 December 2008 directions were set for removal in early January 2009. However, according to the Detailed Grounds, on 14 January 2009, those directions were cancelled as the Claimant could not be found at the address she had given.

4 September 2009 representations

9. On 4 September 2009, the Claimant made representations which she asked the Defendant to treat as a fresh claim for asylum or human rights, relying on Articles 2, 3 and 8 ECHR and also making detailed representations for leave to remain outside the rules under paragraph 395C. The Claimant enclosed a personal witness statement dated 8 May 2009 with that letter, setting out her personal circumstances. It is these further representations which formed the initial basis for the present proceedings.
10. In the letter, the Claimant addressed each of the factors listed in paragraph 395C (set out in paragraph 29 below). She contended that the length of her residence was a sufficiently compelling factor to justify allowing her to remain in the UK; though the letter does not refer to any specific length of time as rendering her period of residence as being a particularly significant factor. She further claimed that she had built up a private and family life in the UK; that that life had been built up with her friends who were like her family and who provided her with emotional and financial support. Then, the letter contained a further section under the heading "Inconsistent approach to decision making by the SSHD" and referred to other Sri Lankan cases where leave to remain had been granted. Under the same heading, it was averred that the Claimant's case should be taken out of the queue. As explained in paragraph 62 below, the existence of this section of the letter may explain certain parts of the 7 February 2011 letter.
11. The Claimant's solicitors, Malik & Malik, sent chasing letters to the Defendant, including a letter dated 12 November 2009. On 22 February 2010, they sent a letter before claim to the Defendant, in which they pointed out that no substantive response had been received to the 4 September 2009 representations. By letter dated 18 March 2010, the Defendant responded by declining to deal with the Claimant's case out of turn. Further letters before claim were sent in the course of 2010, pressing for the Claimant's case to be taken out of the queue and expedited. The Defendant responded to the same effect.
12. On 2 November 2010 the present application for permission to apply for judicial review was lodged. By that application the Claimant sought an order requiring the Defendant to make a decision on the 4 September 2009 representations; the grounds of the application being that the Defendant had delayed unreasonably in dealing with those representations and her case should have been taken to higher in the list. The grounds also refer to the existence of revised UKBA guidance enabling caseworkers to consider granting permission to stay on the basis of a period of residence of 6 to 8 years rather than 10 to 12 years.
13. On 31 December 2010 , the Defendant filed Summary Grounds of Defence ("the Summary Grounds") contending that there were no grounds for taking the Claimant's case out of turn and that the delay was not Wednesbury unreasonable.

The 7 February 2011 letter

14. In a decision letter dated 7 February 2011, the Defendant addressed the 4 September 2009 representations. The Defendant informed the Claimant that she did not qualify for asylum or humanitarian protection and that she did not qualify for limited leave to remain in accordance with the Defendant's policy on discretionary leave. The letter concluded that there were no compassionate circumstances under paragraph 395C to justify not removing her. The Defendant further concluded that the 4 September 2009 representations did not amount to a fresh claim for asylum or human rights under paragraph 353 Immigration Rules. Accordingly, the Defendant informed the Claimant that she had no basis to stay in the United Kingdom and that she should make arrangements to leave without delay. Somewhat confusingly, at page 7, the letter appeared to suggest that the application had not yet been considered and remained outstanding. This is addressed further below.
15. Further confusion arose from the fact that there was an earlier draft of this letter, dated 31 January 2011. As explained in a witness statement dated 10 July 2012 from Mr Michael Williams, a caseworker in the CAAU, that earlier draft was subsequently modified and sent in the form of the 7 February 2011 letter. The modifications made are of no significance. I note that, in the Consideration of Submissions section of the letter, it is stated that the consideration was completed on 31 January 2011. Thus it seems that whatever changes were made between 31 January and 7 February did not go to the substantive consideration of the case. However it appears that, in error, a copy of the 31 January draft letter was subsequently sent by the Treasury Solicitor to Malik & Malik and it was this version which was placed before the court at the hearing before Singh J on 1 December 2011. However it is common ground that, at the time, the 7 February 2011 letter was in fact sent to, and received by, the Claimant and/or her legal representatives. I do not accept the submission that these two letters represented two distinct decisions. In my judgment, the decision made and notified to the Claimant at the relevant time is that recorded in the 7 February 2011 letter.
16. The detailed terms of the 7 February 2011 letter are considered further in paragraphs 52 et seq below. In his witness statement, Mr Williams sets out how the 7 February 2011 letter was produced. But he does not give evidence as to what the particular caseworker did in the instant case and how that caseworker reached his substantive conclusion.

March 2011 onwards

17. On 1 March 2011, Mr Michael Kent QC sitting as a deputy High Court judge refused permission to apply for judicial review on the papers. He stated that the Claimant's application was going to be dealt with by July 2011 and that there had been no failure to deal with the Claimant's application within a reasonable time. It appears however that, at that time, the learned judge did not have before him a copy of the 7 February 2011 letter and so was unaware that a decision had in fact already been taken.
18. On 30 March 2011, the Claimant renewed the application for permission, serving Amended Grounds for Judicial Review ("the Amended Grounds"). In the first paragraph of the Amended Grounds it is made clear that the challenge has become a challenge to the decision made in the 7 February 2011 letter. The grounds for this challenge are that that decision was inconsistent with other decisions taken by the Defendant, that the Defendant had failed to apply her own policy and that the Claimant had a legitimate expectation of being granted discretionary indefinite leave to remain in view of the length of her residence in the United Kingdom, which was in excess of 6 years. In those Grounds, the Claimant gives 10 examples of cases where indefinite leave to remain had been given on the basis of length of residence, where the applicant had been resident in the UK from between 7 and 11 years. In five of those cases, length of residence was the only factor mentioned; in the other five it was specifically mentioned along with strength of connection and compassionate circumstances. On this basis the Claimant appears to contend that length of residence is, if not determinative, than, at the very least, a significant factor.
19. On 31 July 2011, the Defendant's CAAU sent a letter to Malik & Malik stating that her case was "one of a very small number of cases on which we have not yet been able to come to a final decision" and that "we aim to notify you of the decision in your case by the end of August, where possible". This letter, according to the Detailed Grounds, was sent in error. It was an automatically generated letter and should not have been sent in the case of the Claimant, because in fact her case had been decided, some months earlier. In a witness statement dated 27 June 2012 from Mr Eddy Montgomery, North West Operational Director of the UKBA, Mr Montgomery explained in general how these automated letters came to be sent out and concluded that if a letter went out to someone in error, then the incorrect flag must have been placed on the Defendants' computer system by the caseworker reviewing the case. There is no evidence that Malik & Malik responded to the 31 July 2011 letter.
20. On 24 November 2011, Malik & Malik wrote to the Defendant, referring to the statement on page 7 of the 7 February 2011 letter, inquiring why the Defendant had not taken a decision by the summer of 2011. (This was an odd letter to send given the remainder of the content of that letter).
21. By letter dated 29 November 2011, the Treasury Solicitor responded saying that in fact a decision had been taken, (referring, erroneously, to the 31 January 2011 letter (rather than to the 7 February 2011 letter)) and that the statement on page 7 was "a pro-forma sentence" which was "made clear when taken in context of the whole letter". There was nothing outstanding to be considered. The letter contained a further statement about the Defendant's approach to which I return in paragraph 80 below.
22. At the oral renewal hearing on 1 December 2011, Singh J adjourned the application for a rolled up hearing and directed the Defendant to file detailed grounds of defence in response to the Claimant's Amended Grounds. A hearing set for April 2012 was subsequently adjourned by consent. The next hearing was fixed for 27 July 2012.
23. On 2 and 3 July 2012, Burton J heard the applications for judicial review in Hakemi and others. In the Hakemi cases, witness statement evidence had been filed, first, by Mr Saleem of Malik & Malik and secondly, in response, by Mr Neil Forshaw, an Assistant Director of the UKBA. Those witness statements have also been filed by the parties in the present case. On 19 July 2012, Burton J handed down judgment in Hakemi.
24. In the meantime, on 16 July 2012, the Defendant filed her Detailed Grounds, together with three witness statements. On the same date, in another case, Piragash and others, Burton J stayed proceedings in circumstances where the claimants' case, and in particular his or her claim under paragraph 395C, had been considered by the Defendant's judicial review unit and not by the CRD or the CAAU, on the basis that the Claimants were entitled to decisions from the relevant departments.
25. On 26 July 2012, the day before the hearing listed for the present case, Malik & Malik requested an adjournment of about 2-3 weeks on the basis that new documentary evidence from Sri Lanka had been discovered. The Treasury Solicitor replied on the same day, opposing the adjournment and pointing out that it might take longer than 2-3 weeks for the Defendant to respond to any further submissions made by the Claimant.
26. On 27 July 2012, Haddon-Cave J adjourned the hearing, on the grounds that the Claimant had indicated that new evidence had been discovered and directed the Claimant to serve further written submissions by 3 August 2012 and that the matter be re-listed for the first available date thereafter. It is not clear whether it was expected that those further written representations could be considered at the adjourned hearing; but in any event, that did not come to pass.
27. By letter dated 6 August 2012, the Claimant submitted the further representations referred to in paragraph 2 above, asserting a fresh claim for asylum and/or human rights and/or a claim to remain on the basis of her private life under Article 8. Enclosed with that letter was a further witness statement from the Claimant herself, together with certain new evidence, in particular documentary evidence emanating from Sri Lanka and dating back to the period between October 2001 and October 2002. The main thrust of the further representations is that the Claimant believes that, on return to Sri Lanka, she will be detained by the authorities in Sri Lanka as being involved or associated with the LTTE and in the light of this new evidence, the Claimant is entitled to asylum/Article 3 protection under the criteria established in LP (Sri Lanka) [2007] UKAIT 00075 and as modified most recently in the case of TK (Tamils - LP updated) Sri Lanka CG [2009] UKAIT 00049.

Paragraph 395C: The relevant principles and practice

Removal under Immigration and Asylum Act 1999

28. Section 10 IAA 1999 as amended provides, so far as material:

"(1) A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if—

(a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave;

(b) he uses deception in seeking (whether successfully or not) leave to remain; or… "

Paragraph 395C Immigration Rules

29. Paragraph 395C of the Immigration Rules provided as follows:

"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."

30. As explained in paragraph 104 below, with effect from 13 February 2012, paragraph 395C was removed from the Immigration Rules and a new paragraph 353B was introduced.
31. The following is to be noted about paragraph 395C. First, consideration of the factors in paragraph 395C was done as part of the process of removal under s.10 IAA 1999; it provided for an exception from removal, on compassionate grounds. Secondly Paragraph 395C applied to any case where the Defendant was considering removing a person pursuant to s.10. It did not apply merely to "legacy cases".
32. In TE (Eritrea) v SSHD [2011] EWCA Civ 811 the Court of Appeal considered the correct approach to paragraph 395C. Stanley Burnton LJ stated (at §§16 to 19) that the specific matters listed in paragraph 395C are not "requirements" to be met; rather they are matters relevant to the making of a decision whether or not to remove the applicant. Paragraph 395C is a rule as to the practice to be followed in the administration of immigration control; it does not confer rights to enter or remain or even presumptions as to the grant of those rights. Stanley Burnton LJ continued at §19:

"Paragraph 395C is a helpful list of factors to be considered by the decision maker when deciding whether, although the applicant is liable to be removed under section 10, he should not be. That involves considering all relevant factors, whether listed or not, and deciding whether, notwithstanding that the applicant has no right to be here, he should not be removed. If he is not to be removed, normally it will be appropriate to grant leave to remain. This process is not inaptly described as weighing the liability to removal, and thus the maintenance and enforcement of sensible and effective immigration controls, against the largely personal factors which make it appropriate to allow the applicant to remain."

33. Thus when a decision not to be remove is made, discretionary leave is normally granted and such leave is commonly referred to as the grant of leave to remain "outside the immigration rules".

The UKBA's Enforcement Instructions and Guidance

34. The UKBA issues, for the benefit of its caseworkers, and publishes, guidance, now known as "Enforcement Instructions and Guidance" ("EIG"), in relation to the application of the Immigration Rules. Chapter 53 of the EIG ("Ch. 53") addressed paragraph 395C of the Immigration Rules, and, in particular, each of the factors listed in paragraph 395C. Contrary to the apparent understanding of the Claimant, the EIG generally, and Ch. 53 specifically, apply to all cases, and not just legacy cases. Ch. 53 was there to provide UKBA caseworkers, including CRD caseworkers, with clarification on consideration of the factors under paragraph 395C: see Hakemi, below, §7.
35. The EIG, including Ch. 53, was amended in August 2009. The version as so amended was the version applicable at the time of the 7 February 2011 letter. It provided, inter alia, as follows:

"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 …"

36. Paragraph 53.1.2 then addressed the relevant factors in paragraph 395C, and in particular "length of residence" in the following terms:

"53.1.2 Relevant Factors in paragraph 395C.

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.

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. …

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:

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."

(emphasis added)

37. The layout and structure, and as a result the content, of the foregoing paragraphs are not entirely clear. In particular as regards the last paragraph it is not clear whether the guidance is referring to the length of residence or periods of culpable delay by the UKBA. Inevitably, in legacy cases, they have all arisen as a result of delay on the part of the UKBA in dealing with the backlog of asylum cases. It appears to be the case that the last three bullet points all fall strictly under the heading "residence accrued as a result of delay by UKBA". (In Hakemi Burton J expressly added in sub-paragraph numbers which do not appear in the published EIG – he numbered the last bullet point as "(iv)"). For my part, I read the passage starting "In addition to the foregoing" as forming part of the sub-heading "Residence accrued as a result of delay by UKBA". Nevertheless, I agree with Burton J's view (at §13 of Hakemi) that the period of years identified in the last bullet point refers simply to the passage of time (and thus the period of residence in question), and not particularly to a period of culpable delay on the part of the UKBA.
38. Before the August 2009 amendment, paragraph 53.1.2 specified no particular period of "long" residence to be taken into account.
39. Paragraph 53.1.2 then went on to deal with the other factors listed in paragraph 395C. For example, under "Personal history", particular attention is drawn to criminal record, undesirable character, conduct or association. That section of paragraph 53.1.2 then continued:

"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."

Finally paragraph 53.1.2 concluded by addressing the final paragraph 395C factor, "any representations received" by stating "These must always be considered and given due weight. Individuals may raise other relevant factors not listed above. These should be considered on a case by case basis".

House of Commons statement

40. Counsel for the Claimant, Ms Ripon Akther, referred in the course of argument to the following House of Commons statement by Melanie Gower dated 10 August 2010. This was a ten page explanation of the legacy programme. It included the following passages, relevant to the length of residence in particular in legacy cases:

"4 What are the criteria for granting leave to remain?

When the CRD considers a legacy case, it does so using the ordinary criteria for deciding whether or not to recognise Refugee status or to grant another form of leave such as Humanitarian Protection or Discretionary Leave. The UKBA has been at pains to point out that this means the legacy programme is not an amnesty:

…

Where applicants do not fit any of the specific criteria for being granted leave to remain, UKBA caseworkers must also consider whether their case falls within any of the general considerations which would prevent removal. Paragraph 395C of the Immigration Rules sets out the factors which UKBA caseworkers should consider before deciding to proceed with removal action:..."

After setting out paragraph 395C itself, the statement refers to Ch. 53 EIG in the following terms:

"Chapter 53 of the Enforcement Instructions and Guidance contains guidance on how UKBA caseworkers should apply these factors when considering asylum legacy cases. It states:

… [extracts from Ch 53 are set out] …

The guidance includes an indication of the weight that should be attached to a person's length of residence in the UK and how the UKBA will determine whether a significant delay has occurred. In August 2009 the UKBA issued an updated version of this guidance, which gave caseworkers scope to consider granting persons permission to remain if they had been in the UK for six to eight years, rather than ten to twelve years as previously suggested. The UKBA considers that its updated guidance on paragraph 395C of the Immigration Rules "will enable us to resolve cases in the asylum legacy which could not previously be concluded."

(Emphasis added)

The evidence of Mr Saleem and Mr Forshaw

41. In their witness statements placed before the Court in Hakemi and in this case too, Mr Saleem and Mr Forshaw provided evidence as to the operation of paragraph 395C and Ch. 53, and in particular in the context of legacy cases.
42. Mr Saleem, in his witness statement, observed that there appeared to be inconsistency, as between the approximately 40 CRD case teams across the country, in the application of paragraph 395C and Ch. 53 EIG. He claimed that different case workers had not used the same rules, pointing to a number of cases, where he said that it appeared that discretion under paragraph 395C had been exercised in favour of the applicant on the grounds of long residence alone.
43. Mr Forshaw responded to Mr Saleem's evidence. He said that the UKBA had no unpublished internal guidance. He said that caseworkers were trained to make decisions on the basis of published policies. The change referred to in a report cited by Mr Saleem was the change to the EIG in August 2009. The EIG had been amended to show that 6 to 8 years residence might be considered significant. This guidance was of general application and it was not internal.
44. At paragraph 22 of his statement, Mr Forshaw addressed the change to the 6 to 8 year period of residence. This is set out in the judgment of Burton J in Hakemi (see paragraph 46 below). Mr Forshaw then went on to say that the periods of residence had been deliberately set at a lower level than previously understood, in order to assist with dealing with then existing targets for CRD. Length of residence was only one factor to be considered under paragraph 395C and the EIG. It was not an overriding factor. However reducing the period had enabled more grants of discretionary indefinite leave to be granted; and in doing so caseworkers had been applying the published guidance. He then dealt with a subsequent email from Mark McEvoy dated 31 August 2011. This was also addressed by Burton J in Hakemi (as explained in paragraph 50 below).

Hakemi

45. There were four claimants in Hakemi. Each challenged the Defendant's refusal of leave to remain under paragraph 395C. Three had been refused by the CRD, and one by the CAAU. The challenge was made on a number of grounds, most particularly that there had been an unpublished change to the Defendants' policy and practice under paragraph 395C and that that change required parliamentary scrutiny (in line with the case of Pankina). The claimants contended that the CRD in fact applied a policy or practice, within the Ch. 53 guidance, that, all other things being equal, discretionary leave to remain under paragraph 395C would be granted in all cases where the applicant had been resident in the UK for at least 6 years.
46. This issue is addressed, principally, at §§13 to 16 of Burton J's judgment as follows:

"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 … 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."

(emphasis added)

47. Thus, Burton J held that there had not been any change which required parliamentary scrutiny. As explained in paragraph 70 below, in my judgment, the above passages do not amount to a finding that there was a policy or practice different from that contained in Ch 53.
48. The claimants also contended that there had been a failure to publicise the alleged change of policy. Burton J held (at §§31 to 34) that the Defendant's practice and policy had been fully published, both in paragraph 395C and in Ch. 53. At §34 he made further limited observations on the supposed '6 year' practice; these do not materially add to add §§13 to 16 of his judgment.
49. In Hakemi, the first three cases were dismissed principally on the ground that "all other things" were not "equal"; in each case the length of the claimant's residence was in any event less than six years. In the fourth case, where the length of residence was about 12 years, Burton J upheld the defendant's decision to refuse 395C on the basis that the claimant had been guilty of significant deception. The claimants' claim of "inconsistency between cases", based on Mr Saleem's evidence, was not pursued.
50. The claimants also sought to rely upon an email from Mr McEvoy dated 31 August 2011 to suggest that there was a, yet further, subsequent internal practice or policy within CAAU. The email states "Here are the lines to take under the 395C criteria ... CAAU ... feel 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". Mr Forshaw denied that this represented any change from what was in Ch. 53 and did not amount to a policy of granting leave solely on the basis of 4 years residence. He also referred to a letter being sent in July 2011 to those whose cases needed concluding indicating that a decision would be made by the end of August 2011. However, Burton J (at §9) held that since each of the four cases before him had been decided well before 31 August 2011 and by the CRD, any such revised policy could not have been applied to those four claimants. The same applies to the present case.

Legitimate expectation

51. As regards the principle of legitimate expectation, Counsel for the Defendant, Ms Beatrice Collier referred me to the following test for the essential requirements of a claim for legitimate expectation derived from R v IRC ex p Unilever [1996] STC 681 at 693c-d: first the claimant must have put all his cards on the table; second, that the body concerned ... made a representation that was clear, unambiguous and devoid of relevant qualification, third that he claimant was within the class of people to whom the representation was made or that it was otherwise reasonable for him to rely upon it, and fourth that the claimant did indeed rely upon it to his detriment. More generally, and from the cases referred to below in paragraph 111 of this judgment, the question ultimately is whether the authority in question has acted so unfairly as to amount to an abuse of power: see in particular Nadarajah and R(S), citing in turn Begbie [2000] 1 WLR 1115 at 1129-1131.

The decision in the 7 February 2011 letter

52. I turn to consider the detail of the 7 February 2011 letter. The letter runs to ten numbered pages, but is divided into two parts: a 3 page letter from, and signed merely by, the UKBA which in turn attaches a 7 page document entitled "Consideration of Submissions". The latter document concludes by identifying the person by whom, and the date upon which, the "consideration" was completed.
53. On page 2 the letter states:

"I am writing to inform you that your client's case has now been fully reviewed by CRD and the outcome of your case is that your client has no basis of stay in the United Kingdom."

54. Turning to the Consideration of Submissions, section 3 is entitled "Consideration of compassionate circumstances". After setting out paragraph 395C itself, it continues as follows:

"The Secretary of State has considered all the relevant factors of your case, and is content that your removal from the United Kingdom remains appropriate for the following reasons:

You are 42 years and 8 months of age and have resided in the United Kingdom for 10 years and 1 month. You are a healthy Sri Lankan female who spent the first 32 years 7 months of her life in that country. As you are an adult it is considered reasonable to expect you to return there. It is noted that you had a heart condition and claim to suffer from high blood pressure but you were released from hospital the day after your operation. Treatment for high blood pressure is available in Sri Lanka.

You have evidenced no connections with the United Kingdom apart from friends. You may continue your friendships via modern means of communication and it is considered you may re-establish your private life in Sri Lanka.

You have not evidenced that you have been in employment or have been studying here nor have you provided evidence of your domestic circumstances. It is also noted that you have absconded and have not complied with the Immigration Rules.

No evidence has been submitted to prove that removing you to Sri Lanka would compromise your physical and moral integrity or adversely affect your psychological well-being, to the extent that you would be unable to re-establish family/private life in Sri Lanka. Further, no compassionate circumstances have been submitted. You have been able to maintain yourself in the United Kingdom and as an adult it is considered you will be able to maintain yourself on return to your own country where you also have family.

The fact that you do not have a criminal record is insufficient ground for you to remain in the United Kingdom.

No separate representations have been received on your behalf.

It is therefore considered reasonable and proportionate to expect you to re-establish your private life and family life in Sri Lanka. There is nothing compelling in your arguments to warrant a grant of leave."

55. The 7 February 2011 letter has some anomalies. First, in section 2 of the Consideration of Submissions (on page 7 of the entire letter), and despite the fact that the letter was on its face a decision on the 4 September 2009 representations, the following appears under a separate sub-heading "Inconsistent approach to decision making by the SSHD":

"Finally your case is part of the legacy programme and as such we have until summer 2011 to resolve your outstanding application. On previous examination of your case file it was considered that there are no exceptional circumstances to warrant your case being expedited. It is not accepted that there has been undue delay in the processing of your further submissions dated 4 April 2009 following on the refusal of previous further representations on 21 October 2008" [The reference to "April" should be to "September"]

56. Mr Williams in his witness statement about the production of the 7 February 2011 letter stated that this paragraph was "an error by the Caseworker who produced [the letter]" and which was not picked up on the check by the "Technical Specialist" because the Claimant's case had already been fully considered. He went on to say that it was unfortunate for the error to have been included. Nevertheless the Claimant had no outstanding application. He concluded that he was satisfied that the decision in the 7 February 2011 letter "is correct and in line with UKBA known and published guidance." However, contrary to what is said in the Detailed Grounds, he does not say that the error arose from some use of a "pro forma sentence"; and nor does he explain how the error came to be made.
57. Secondly, under the section of the Consideration of Submissions dealing with the Claimant's Article 8 claim, there are two particular statements which do not make much sense. When addressing whether removal would interfere with family and/or private life, the following is stated:

"It is not accepted there will be any interference with your family life should you be returned to China.

...

It is accepted that there may be interference with the particular aspects of your private life mentioned in (1), but ... this is considered to be proportionate"

First, the reference to China, as opposed to Sri Lanka, was presumably a further error in the drafting of the letter. Secondly, at (1) in the letter, there are in fact no particular aspects of this Claimant's private life mentioned. Both these oddities suggest a lack of attention to the particular detail of this Claimant's case.

58. These anomalies, and a suggestion that in fact the decision was not taken by CRD at all, led me to consider in more detail how the decision in the 7 February 2011 letter was taken, and on what basis. I address this in paragraphs 79 to 85 below.

The Claimant's case for judicial review

59. The Claimant's case, in the Amended Grounds, in counsel's skeleton argument and, in oral argument, raised a variety of matters. They can be summarised under the three following grounds:

- First, the Claimant is still awaiting a decision on consideration of her case under the legacy programme, and, regardless of the 7 February 2011 letter, her case has not yet been decided.

- Secondly, and related to the first ground, the Claimant contends that the case should be stayed pending further consideration of the Claimant's case by the CAAU (as happened in the Piragash cases heard by Burton J) on the basis that in fact neither the CRD nor the CAAU have as yet considered the Claimant's case.

- Thirdly, in any event, the Defendant's decision in the 7 February 2011 letter, in so far as discretionary leave to remain under paragraph 395C was refused, should be quashed as being Wednesbury unreasonable or in some other way unfair or unlawful. The Defendant has failed to consider or apply the policy or practice applicable to those who have been resident for a long time and in particular for more than 6 years. Further, and related to this allegation, it is said that there has been inconsistency in decision making within the CRD with different case teams taking a different approach to length of residence.

I deal with each of these three grounds in turn.

Ground 1: further decision outstanding

60. The Claimant submits that despite the express terms of the 7 February 2011 letter, the Defendant has indicated that the Claimant's case remains outstanding and that she intends to take a further decision on the Claimant's case.
61. The Claimant relies upon two particular matters: first, the terms of the passage on page 7 of the 7 February 2011 letter (set out at paragraph 55 above); and secondly the fact and content of the Defendant's letter of 31 July 2011. The consequence, the Claimant says, of these matters is that the Claimant has a legitimate expectation of a further decision under paragraph 395C.
62. As regards page 7 of the 7 February 2011 letter, I do not consider that this gave rise to any legitimate expectation on the part of the Claimant. First, regardless of what is said at page 7, it is clear that the 7 February 2011 letter constitutes a decision taken by the Defendant in respect of her claim made under, amongst other things, paragraph 395C. Secondly, the relevant sentence at page 7 was not a clear and unequivocal representation that the Claimant's case remained outstanding and cannot have reasonably been understood as such by the Claimant. Whilst in the Detailed Grounds it is said that the sentence had been included as "pro forma" wording, in my judgment the position is more accurately described as being that the sentence and the passage was included in error. The sentence was included in a passage of the letter which was directly addressing the complaint made in the then existing judicial review of delay and failure to expedite. Moreover the relevant heading under which the sentence appears is exactly the same as an equivalent heading in Claimant's 4 September 2009 representations. In my judgment, what is being said in the sentence in page 7 is effectively that the Defendant was under no duty to expedite the case and that, under the legacy programme, the Defendant had had until July 2011 in which to deal with the Claimant's case. How the passage came to be included in the 7 February 2011 letter is not clear: either it had been included in the drafting process at a point in time when a decision had not yet been taken and was responding to the allegation of delay; or it was included consciously as at February 2011, with the intention of explaining the past delay in taking a decision. In any event, whatever the reason for the inclusion of that sentence, given the context of the 4 September 2009 representations, the then existing application for judicial review and what is in fact decided in the 7 February 2011 letter, there was no clear and unequivocal representation of a further decision.
63. Moreover the Claimant could not have understood, and it seems to me did not understand, it to mean that her application remained outstanding. There is no suggestion made in the Amended Grounds filed in March 2011 that the Claimant believed that her application remained outstanding; those Grounds themselves being predicated on a decision having been taken. It is the case that in their letter of 24 November 2011, Malik & Malik referred to page 7 of the 7 February 2011 letter and inquired why no decision had yet been made. However in the same letter, they recognised that the 7 February 2011 letter had contained a refusal decision.
64. Similarly, I do not consider that the letter of 31 July 2011 gave rise to any legitimate expectation of a further decision. The fact that this letter was sent was unfortunate and a further administrative error. I accept the explanation of Mr Montgomery that it was a computer generated letter sent in error to the Claimant, when it should not have been. Unfortunately no explanation has been given as to how it came to be that the Claimant's case was marked on the computer system with a flag which indicated that the case had not been resolved. On its face this letter did amount to a clear and unequivocal representation that the Claimant's claim was outstanding. However I am not satisfied that the Claimant or Malik & Malik understood or reasonably understood the letter to mean that a further decision was outstanding. By then a decision had already been taken, as the Claimant well knew and recognised, as demonstrated by the fact that the Amended Grounds filed in March 2011 challenged that decision. Further I do not consider that the Claimant in any way relied upon the representation in the 31 July 2011 letter. For example, Malik & Malik's letter of 24 November 2011 does not even refer to the 31 July letter.

Ground 2: stay

65. The Claimant suggested that the present proceedings should be stayed pending further consideration by the CAAU, as had been done recently in the Piragash cases. I have little information about what happened in those cases. It appears from what I have seen and heard that the basis for the stay in those cases was that the individual cases there had not been considered by the CRD or by the CAAU at all, but only by the judicial review unit within the UKBA. Ms Akther sought to argue that the Claimant's case had not been considered by the CRD at all.
66. There is no evidence to support this suggestion. On the facts before me, I do not accept that the 7 February 2011 letter decision was not taken by CRD but rather was taken by the judicial review unit. Whilst it is not clear that the covering letter was signed by someone from the CRD, the letter expressly states that "the case has been fully reviewed by the CRD". Further the attached "consideration of submissions" concludes by stating that the consideration was completed by Graeme de la Mer. I understand that Mr de la Mer was a caseworker at the CRD. I do not accept Ms Akther's submission that, because earlier letters in the case were signed by an individual expressly stated to be from the CRD and the 7 February 2011 letter was not, then this shows that latter was not dealt with by CRD at all.

Ground 3: the decision in 7 February 2011 letter

67. The main thrust of the Claimant's challenge is that the decision in the 7 February 2011 letter was Wednesbury unreasonable. She does so on the basis that the Defendant failed, or failed adequately, to take account of the fact that, at the time, the Claimant had been resident in the United Kingdom for 10 years and 1 month. The Claimant argues that the Defendant failed properly to apply the provisions of paragraph 395C as expanded upon in Ch. 53 EIG. In considering the various factors listed in paragraph 395C she failed to give sufficient weight to the length of the Claimant's residence and in particular failed to apply her own guidance applicable in a case where residence exceeded 6 years. The Claimant's argument had three, closely related, aspects. First, there was an internal "6 year" benchmark or practice which the Defendant failed to apply in the present case. Secondly, in any event, the Defendant failed to apply the policy on length of residence in Ch. 53. Thirdly, there had been inconsistency of treatment of length of residence in different cases.
68. The Defendant, by contrast, says all factors under paragraph 395C were considered "holistically" and a conclusion was reached, which was not Wednesbury unreasonable. Length of residence is but one factor to be taken into account; it was taken into account, but in the Claimant's case other factors outweighed the length of residence, in particular the facts that the Claimant had "absconded", that she had attempted to frustrate removal, that she had not been actively pressing for resolution of her case and that there were no separate representations outstanding.
69. First, as to the Claimant's contention that the Defendant's approach was usually to grant leave to remain where an applicant had been resident in the UK for 6 years, this is the high water mark of the Claimant's case. It is based on paragraph 22 of Mr Forshaw's statement, which is said to indicate that at the time the CRD had a policy or practice of granting leave to remain under paragraph 395C in cases of residence of 6 years or more, "all other things being equal". This policy or practice was distinct from what is stated in paragraph 53.1.2 of EIG. In the Claimant's case this policy or practice was not followed.
70. I do not accept this submission. The wording of paragraph 22 of Mr Forshaw's statement is not entirely clear, and it does appear from that statement that caseworkers were routinely granting leave to remain where residence exceeded 6 years. However I do not read paragraph 22 of Mr Forshaw's statement as saying that there was such a policy or practice distinct from that contained in paragraph 53.1.2 EIG. Moreover, §§ 13-16 of Hakemi do not amount to a finding that there was such a policy or practice different from that in Ch 53; rather Burton J held that where the CRD did, in fact, grant leave to remain in cases of residence in excess of 6 years, that conduct was consistent, and in accordance with the policy which was set out in Ch. 53. Accordingly I am not satisfied that there was a policy or practice about length of residence which was other, or narrower, than that contained in the Ch 53 guidance.
71. Furthermore I do not consider that it is arguable that there was a policy that leave would be granted on the basis of a sufficient long period of residence alone.
72. Nevertheless that leaves the question of whether the Defendant properly applied Ch. 53 in general and in particular what is said about length of residence in paragraph 53.1.2 EIG.

Length of residence

73. I address length of residence first, as being the factor in respect of which the Claimant alleges that the Defendant fell into error.
74. In taking the decision in the 7 February 2011 letter, the Defendant (through the caseworker in question) was required to consider not only the terms of paragraph 395C itself, but also expressly the guidance set out in Ch. 53. The Ch. 53 guidance contains specific and quite detailed provision relating to length of residence. Whilst in terms this guidance applies to all cases under paragraph 395C, it is, by definition, liable to fall for specific consideration in many if not all "legacy cases", since such cases are necessarily cases of delay. Thus what is said in the guidance about length of residence has particular relevance in a legacy case.
75. Whilst not entirely clearly drafted, in my judgment, the effect of paragraph 53.1.2 EIG is that weight is to be placed on significant periods of residence and that guidance is then given as to what periods of residence are to (or may) be considered to be significant; and in a case such as the Claimant's a period of 6 to 8 years is or may be considered to be significant. Plainly such a significant period of residence is to weigh as a factor operating against removal. These are the instructions given to the caseworkers and which in my judgment the caseworker in the CRD in the present case should have consciously taken into account. Further the significance for legacy cases of the Ch. 53 change relating to 6 to 8 years is specifically identified in the August 2010 House of Commons statement (see paragraph 40 above). The Claimant sought to suggest that in fact Ch. 53 had not been considered at all in this case.
76. In my judgment if it were the case, on the facts, that the person responsible for a decision under paragraph 395C had not in fact taken into account the Ch. 53 guidance in general nor, in particular, what is said there about length of residence, then that would amount to a failure to apply relevant policy and a failure to take account of a relevant consideration and would render the decision taken Wednesbury unreasonable or otherwise unfair: see e.g R (Lumba) v SSHD [2011] 2 WLR 611 at §35, as cited in Hakemi §31.
77. The question arises as to whether in the present case the decision maker did consider the Ch. 53 guidance in relation to length of residence.
78. There is no express reference in the 7 February 2011 letter to the Ch. 53 guidance. The letter merely enumerates the paragraph 395C factors, states that the Defendant has considered those factors and then in the ensuing narrative gives the reasons for the decision applying those factors. The Defendant submits that there is no requirement for such an express reference. That may be so, but in the present case there is no reference in the express terms of the letter to the fact that residence of between 6 to 8 years is a significant factor or that it weighs in favour of the grant of leave to remain. All that there is the assertion of the bald fact of the Claimant's residence of 10 years and 1 month. There is no indication in the letter that the length of residence section of paragraph 53.1.2 EIG has been consciously considered. For example, the letter does not say "it is noted that you have resided in the UK for more than 6 to 8 years, but other factors in your case outweigh the length of your residence".
79. So I consider what other material there is to suggest that the guidance as regards length of residence in paragraph 53.1.2 EIG was consciously considered.
80. First, there is the statement in the Treasury Solicitor's letter of 29 November 2011:

"My client submits that she considers cases in line with published UKBA guidance, including any consideration of paragraph 395C. All considerations are on a case-by-case basis involving detailed attention to all the known facts of a claim and are therefore highly fact-sensitive."

However this amounts, at most, to a statement of general practice or policy by the Defendant and is not addressed to what specifically occurred in the present case.

81. Secondly, Mr Williams in his witness statement in dealing with the "error" on page 7 of the letter stated that the factors listed in paragraph 395C of the Immigration Rules had clearly been considered in the 7 February 2011 letter and that he was satisfied that the letter was "in line with UKBA known and published guidance". This does not amount to clear evidence that the caseworker specifically considered what is said about length of residence in paragraph 53.1.2 EIG.
82. Thirdly in the Detailed Grounds, the Defendant asserted that "CRD considered each application on its merits in accordance with existing law and policy" and further that, in reaching the decision in the 7 February 2011 letter in respect of paragraph 395C, "the Defendant looked at all the criteria set out under paragraph 395C, considering them all together in the round, in accordance with the guidance set out at paragraphs 53.1.2 of Chapter 53 of the EIG". (There is a statement to similar effect that period of residence was one of the factors listed in paragraph 395C which, "as is required by paragraph 53.1.2" were considered in the round). This is ambiguous: it could mean that "in the round" consideration of the paragraph 395C factors took place, as required by paragraph 53.1.2 or it could mean that the guidance in paragraph 53.1.2 itself was specifically considered.
83. Finally, in the course of the hearing, in response to questions which I raised, Ms Collier informed me, on instructions given to her, of the following. The decision in the 7 February 2011 letter was taken by a caseworker within the CRD. All caseworkers at the CRD were trained and well used to applying paragraph 395C and have been trained in respect of Ch. 53, being the policy guidance to assist as to how the factors in paragraph 395C are to be weighed. She was unable to say how the particular caseworker had taken the decision, nor state categorically whether the caseworker had had the Ch. 53 guidance in front of him when taking the decision, but that it would be very surprising if he did not have Ch. 53 in mind, because that was his job. In fact these instructions effectively confirm the general evidence given in Mr Forshaw's witness statement. On this basis, Ms Collier submitted that the caseworker would have had the Ch. 53 guidance in mind and that there was no evidence that he did not. She further submitted that in general such refusal letters do not refer to the Ch. 53 guidance in terms. I note however that, whilst a number of witness statements were served by the Defendant, covering both general practice and also particular aspects of the present case, no witness evidence was produced by the Defendant as to how the caseworker reached the decision in the present case and the extent to which the paragraph 53.1.2 guidance on length of residence was taken into account.
84. I accept the Defendant's submission that the decision ultimately reached may not necessarily be inconsistent with a proper application of the factors listed in paragraph 395C or even the Ch. 53 guidance. However it is not clear that, as actually taken, the decision did apply the relevant factors in accordance with the then current guidance in Ch. 53.
85. I am not satisfied that, in reaching the decision in the 7 February 2011 letter, the caseworker in question, and thus the Defendant, specifically considered the Ch.53 guidance and in particular the provisions addressing length of residence. There is no evidence that the Claimant's residence of more than 10 years was weighed in the balance as being a significant factor. There is nothing in the decision letter itself to suggest to the contrary, and the external material referred to above does not establish that it was considered.
86. It is important in a legacy case such as this where a long period of residence is plainly liable to be a factor of weight, and where the Defendant's own guidance indicates that it is, that it is considered by the decision maker.
87. I note that in the Summary Grounds, the Defendant, in responding to an example cited by the Claimant in the original grounds, relies on a passage in Chief Inspector report of 2009 stating "lack of record of any consideration of how these factors were weighted by the case worker does not allow us to examine why this decision was reached" and goes on to state "each case turns on its own facts and circumstances and whether leave should be granted in an individual case is a matter for assessment by the caseworker dealing with that case". That is precisely the criticism here. There is no record before the Court of how the factors in this case were weighted by the particular caseworker and as to how the decision was reached in respect of this particular claimant.
88. For these reasons I am not satisfied that the caseworker in the present case applied the Ch. 53 guidance nor that he gave sufficient weight to the length of residence in this case or how he weighed that factor in the balance in the present case. Accordingly I find that the Defendant failed to give proper consideration to length of residence as a factor.

Other factors

89. The Defendant submitted, correctly, that the approach under paragraph 395C is holistic, that all factors fell for consideration and that other factors in the present case outweighed the Claimant's long residence. In my judgment, the failure to give proper consideration to length of residence is sufficient, on its own, to render the decision Wednesbury unreasonable. Nevertheless I make the following observations on other paragraph 395C factors.

(1) Absconding

90. "Absconding" is referred to in paragraph 53.1.2 under "personal history" (see above); in particular the relative weight of this factor is to be assessed by considering the period of absconding in the context of the overall period of residence in the UK.
91. The Defendant referred to the fact that the Claimant had absconded and not complied with the Immigration Rules. This is "also noted" in the 7 February 2011 letter. More detail is asserted in the Detailed Grounds, although only in a footnote. There it is stated that the Claimant did report up until 2006, but did not report after November 2006 and thus, presumably, the absconding and non-compliance with the Immigration Rules comprised the failure to report after November 2006. This account is not fully accepted by the Claimant, who suggests that the failure to report happened only after November 2008. The Claimant claims that she was reporting from 2002 to 2008. This is a dispute which on the evidence before me I cannot resolve. However I would observe the following. It appears that the Claimant did report for a number of years; even after 2006, she or persons on her behalf were making representations to the Defendant; this is not a case where the Claimant "went to ground" following the refusal of her asylum claim and for the large part of the overall period of residence.
92. However, in the 7 February 2011 letter itself, no particular weight appears to be accorded to this factor; moreover, there is no detail of how and when and for how long the Claimant absconded; no explanation is given of the "non-compliance with Immigration Rules"; nor is there any explanation of how these factors have been weighed in the balance, generally or by reference to the overall period of residence.

(2) Attempts to frustrate removal

93. Secondly, the Defendant asserted that the Claimant had made attempts to frustrate her removal from the UK and that this is a matter militating against grant of leave to remain. "Attempts to frustrate" removal or delay the decision making process is a factor referred to in paragraph 53.1.2 under "length of residence" and also under "personal history". On the other hand, paragraph 53.1.2 also refers, as a countervailing factor, to efforts actively to press for resolution of immigration status.
94. The Claimant argues that she made attempts to regularise her position most particularly in her representation letters of 5 May 2004, 11 August 2006, 23 April 2007 and 4 September 2009. The Defendant says that these letters were not attempts to regularise, rather they were sent at a time when the Claimant was threatened with removal.
95. Whilst it is the case that when threatened with removal in August 2006 and at the end of 2008, the Claimant did make fresh representations and commence judicial review proceedings, it is also the case that the Claimant took positive and unsolicited steps to seek to regularise her position and/or get her case resolved, most notably by the 4 September 2009 representations and subsequent chaser letters.
96. However, whatever the correct assessment of these facts, the Defendant's assertion of "frustrating the process" was made only in the Detailed Grounds and is not referred to in the 7 February 2011 letter. There is no evidence that this was a factor considered by the CRD. Indeed the fact that it is not referred to in the decision may be a further indication that paragraph 53.1.2 was not properly considered by the decision maker at the time.

(3) Factor (viii): representations received

97. As regards factor (viii) in paragraph 395C, the 7 February 2011 letter states, as a relevant factor, that "no separate representations have been received on your behalf". This is a curious statement, given the fact that the letter itself was a response to specific representations. In argument, the Defendant suggested that factor (viii) in paragraph 395C is intended to refer to representations from other, third, parties supporting an applicant's position. This does not seem to be correct. The relevant part of paragraph 53.1.2 EIG makes it clear that factor (viii) is concerned with representations from the applicant him or herself. Thus, the statement in the 7 February 2011 letter that no such representations had been received was incorrect. It may have stemmed from the fact that in the 4 September 2009 representations there was a statement, under this head, that "our client has no representations outstanding". If so, this might suggest that, as with the statement at page 7 of the letter (see paragraph 62 above) the caseworker was merely seeking to mirror what was said in the Claimant's own representations, without giving independent consideration to this factor and to how it might be relevant in the present case.

(4) Others

98. The Claimant made a number of criticisms of the decision in relation to other factors, and in particular in relation to her connection with the UK, her personal circumstances, including the absence of criminal convictions, the fact that she had stayed out of trouble and certain compassionate circumstances. In my judgment, these factors were addressed in the 7 February 2011 letter and there are no grounds for concluding that, in looking at the factors themselves, the Defendant made errors or failed to give adequate consideration to them. Whether these factors were properly weighed with all other relevant factors and in particular length of residence, is a different matter.

Inconsistency of treatment

99. As regards the third aspect of Ground 3, inconsistency of treatment, I consider that, if established, this would be a self standing ground for impugning the decision. It is not necessary to put the case on the basis of legitimate expectation. The inconsistency of treatment said to arise here relates to treatment of length of residence. However, in the light of my conclusion that in the Claimant's case, inadequate consideration was given to this factor in any event, a more general claim of inconsistency of treatment seems to add little to the Claimants' case.
100. There is insufficient evidence about the other cases relied upon to reach a view as to whether there has been an inconsistent approach to the application of the paragraph 53.1.2 guidance in relation to long residence. It does appear that in a limited number of identified cases, leave to remain might have been granted on the basis of length of residence alone. When taken together with Mr Forshaw's evidence in paragraph 22 of his witness statement, these might give rise to a perception on the part of this Claimant and others of inconsistency of treatment. Nevertheless I am not satisfied that such a case is made out on the facts.

Conclusion on Ground 3

101. For the given in paragraph 88 above, I conclude that the decision in the 7 February 2011 letter was Wednesbury unreasonable and should be quashed.

Consequences of quashing order: further consideration

102. The courses of action open to this court upon making a quashing order are set out in CPR 54.19 and s.31 Senior Courts Act 1981 (as amended). Since the relevant decision maker in the present case is not a court or tribunal, this court does not have the power to substitute its own decision for the decision taken by the Defendant: see s.31(5)(b) and s.31(5A) SCA 1981. Rather the court has power to remit the matter to the Defendant and to direct the Defendant to reconsider and reach a decision in accordance with the findings in this judgment.
103. It therefore falls to the Defendant now to take a fresh decision on the representations made in the 4 September 2009 letter.
104. However, as noted above, since the decision of 7 February 2011, paragraph 395C of the Immigration Rules has been deleted from, and at the same time a new paragraph 353B has been inserted into, the Immigration Rules. These changes were made by HC1733 Statement of Changes to the Immigration Rules approved by negative resolution of Parliament pursuant to the Immigration Act 1971. (I understand that the EIG has been amended to reflect this change, although I have not been provided with a copy of the relevant new provisions).
105. Paragraph 353B now provides as follows:

"Exceptional Circumstances

353B. Where further submissions have been made and the decision maker has established whether or not they amount to a fresh claim under paragraph 353 of these Rules, or in cases with no outstanding further submissions whose appeal rights have been exhausted and which are subject to a review, the decision maker will also have regard to the migrant's

(i) character, conduct and associations including any criminal record and the nature of any offence of which the migrant concerned has been convicted;

(ii) compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable;

(iii) length of time spent in the United Kingdom for reasons beyond the migrant's control after the human rights or asylum claim has been submitted or refused'

in deciding whether there are exceptional circumstances which mean that removal from the United Kingdom is no longer appropriate."

106. It appears from its terms, and both parties agree, that the scope of the grant of leave to remain outside the immigration rules is now more limited under paragraph 353B than it was under former paragraph 395C.
107. The question arises as to whether, when giving further consideration to the Claimant's case following the quashing of the decision in the 7 February 2011 letter, the Defendant should consider the matter under the present rule, or under the rule existing at the time of the decision which I have found to be Wednesbury unreasonable. At the outset it struck me as potentially unfair for the Claimant to be prejudiced by the more stringent rule in paragraph 353B where, had the Defendant acted properly in February 2011, it is possible, at least, that she would have benefited from the more generous provisions of paragraph 395C. Subsequent to the hearing, I invited and have received further written submissions from the parties on this issue.

The parties' submissions

108. The Claimant submits that the Defendant should make a fresh decision in accordance with the law and policy (paragraph 395C and Ch 53 EIG) as it existed at the time of the decision made on 7 February 2011. She contends as follows:

(1) The Claimant recognises that the starting point is the principle in Ravichandran [1996] Imm AR 97 that a claim should be dealt with by reference to the legal and factual situation pertaining at the date of the relevant decision.

(2) However, case law has shown that this principle is to be departed from in certain situations of unfairness or where there is breach of legitimate expectation.

(3) Had the Defendant properly considered the Claimant's case in February 2011 and applied paragraph 395C properly and in accordance with the Ch 53 guidance, this would have led to the grant of leave to remain.

(4) Failure to follow her own policy amounted to a breach of the Claimant's legitimate expectation to have her application considered in line with that policy; this failure amounted to conspicuous unfairness amounting to an abuse of power: see R (on the application of Bakhtear Rashid) v. SSHD [2005] EWCA Civ 744 at §§37 and 54.

(5) The present case can be distinguished from the decision of the Court of Appeal in Nadarajah v. SSHD [2005] EWCA Civ 1363, because in that case the court found that the defendant had acted consistently throughout and the claimant had not sought to benefit from the policy until after the decision had been made.

(6) Finally, it is unjust for the case to be considered on the basis of the present paragraph 353B considerations alone; the Defendant should not be allowed to gain advantage from the earlier unlawful decision.

109. The Defendant submits as follows:

(1) Prima facie the Court does not have power to direct that the Defendant should take a new decision under paragraph 395C, because that would require her to act unlawfully, since paragraph 395C no longer forms part of the Immigration Rules.

(2) Even if the Claimant had a legitimate expectation that her case be decided by reference to paragraph 395C, any such expectation is overridden by the Secretary of State's statutory duty to decide her case according to the current Immigration Rules: see Laws LJ in Nadarajah at §§68 to 70.

(3) The power and the discretion in relation to reconsideration lies with the Defendant; the court has no power to grant leave to remain or to order the Defendant to do so: see R (S) v SSHD [2007] EWCA Civ 546 at §45.

(4) The Defendant recognises that in certain circumstances a legally material factor in the exercise of the discretion in the second decision is what is referred to as "the correction of injustice": see R (S), supra, §46. The Court has power to direct that correction of an injustice is a legally material factor.

(5) However, the facts of the present case are not so extreme that there can only be one answer when the discretion comes to be exercised afresh. The present case can be distinguished on the facts from Rashid and from R(S) where, but for the unlawfulness in the first decision, the SSHD's decision was inevitably, or at least more likely than not, to be favourable to the claimant.

(6) It is accepted and submitted that the Court can and should direct that the case should be considered in accordance with the current facts and law, but with a direction that the Defendant should remedy any illegality in the first decision.

Analysis

110. There appears to be no direct authority on the question of the basis upon which a fresh decision should be taken by an authority, following the quashing of an earlier decision by that authority, and where the statutory rules applicable to that decision have changed in the meantime.
111. I have considered in detail Rashid (especially per Pill LJ at §§ 34, 36 to 40 and per Dyson LJ at §44, 51 to 54 ), as subsequently analysed by R (S) (per Carnwath LJ at §30, 34 to 38, 39 to 43, 45 to 50 and 52 and 54 and per Moore-Bick LJ at §69 to 72); and Nadarajah (especially at §§42, 45, 46 and 47, 52, 59, 65 and 66 to 71), a Court of Appeal decision after Rashid but before R(S). I have also been referred to the recent Court of Appeal decision in MM (Zimbabwe) v SSHD [2012] EWCA Civ 135, where, most notably, Hughes LJ at §17 specifically endorsed the analysis of Carnwath LJ in R(S). I have also looked at another line of cases, where the notion of "correction of injustice" has been considered: these are AA Afghanistan v SSHD [2007] EWCA Civ 12, R (on the application of S, H and Q) v SSHD [2009] EWCA Civ 334, and SL (Vietnam) v SSHD [2010] EWCA Civ 225 (at §§29 to 33, and 60). (The parties did not specifically rely on these cases). In particular, R (S, H and Q) (at §§10 to 30, 39 to 51) contains a further analysis of the reasoning in Rashid and in R(S). From consideration of these authorities, and the parties' submissions, the following principles emerge.
112. First, the issue concerns a tension between, on the one hand, potential unfairness arising from the initial unlawfulness and, on the other hand, the application of the important general principle that administrative decisions should be based on "the legal and factual context prevailing at the time the [subsequent] decision is made" (per Laws LJ in Nadarajah § 46): see also Ravichandran [1996] Imm AR 97 and R(S) per Carnwath LJ at §§32 and 35.
113. Secondly, the authorities establish that the principle in Ravichandran may be displaced or attenuated in certain circumstances.
114. Thirdly it is important, in considering the authorities and the proper analysis of the issues, to address distinctly (a) the question whether the original decision is unfair, an abuse of power or otherwise unlawful and (b) whether the subsequent decision which has been, or is to be, taken by the authority, consequent upon the setting aside of the first decision, is, or will be, unfair. As Carnwath LJ put it in R(S) at §34, there are two distinct questions: first, was the original decision legally flawed because of failure to apply the correct policy; secondly, if so, what is the relevance (if any) of that finding to the legality, or the court's powers in respect, of a subsequent decision, made when the policy is no longer in force. Moore-Bick LJ in R(S) at §§70 and 72 also identifies two such questions.
115. Fourthly, as regards the original decision, it is not, in my judgment, necessary for there to be a finding that it was "conspicuously unfair so as to amount to an abuse of power"; or at least not if the terms "conspicuous unfairness" or "abuse of power" represents a particularly egregious form of conduct. As properly interpreted, conspicuous unfairness in relation to the original decision also covers Wednesbury unreasonableness or a failure to follow policy. There is no requirement for an extreme case of misconduct. Abuse of power is not a magic ingredient which other forms of illegality cannot match and does not give rise to different or more far reaching consequences: R(S) per Carnwath LJ at §39 and Moore-Bick LJ at §§70 and 71.
116. Fifthly, and most importantly, a prior unlawful decision and injustice arising from it (arising from the subsequent change of policy or law) are factors which have to be taken into consideration when the decision maker comes to consider the claimant's position on a subsequent occasion. "Correction of an injustice" arising from the flawed first decision is a "legally relevant factor" to be taken into account in the second decision: R(S) per Carnwath LJ at §46 and 47. See also R(S) per Moore-Bick LJ at §72 and the summary in SL (Vietnam) at §33.
117. Sixthly, whilst most of the decided cases were cases of a change of policy in the intervening period, rather than a change in the statutory immigration rules themselves, I do not regard this as a reason not to apply the "correction of an injustice" approach.
118. Seventhly, I do not accept that the "correction of an injustice" approach should apply only in cases where the original decision would have been favourable to the claimant, absent the original error. What falls to be considered is the possibility of a historic injustice having been caused by the original error. Whether there has been such an injustice is for the decision maker second time round.
119. Finally, as regards Nadarajah, the decision of Laws LJ supports the giving of preference to the application of the later existing rules or policy. There, the duty to apply the old policy gave way to the existing statutory duty. However I consider that the decision in that case was very much a decision on the particular facts (see per Laws LJ at §§66, 67 and 71) and that the present case can be distinguished on the facts: in the present case, I have found that there was a failure to apply actual policy. Furthermore, Nadarajah was based on an approach that the error in the original decision gave rise to a legitimate expectation that the second decision would be taken on the basis of the old policy. It pre-dates the somewhat different approach, first identified in R(S), based on correction of an injustice.

Conclusion

120. Applying the above principles, I reach the following conclusions.
121. Following the quashing of the decision of 7 February 2011, it is now for the Defendant to reach a fresh decision exercising her own discretion. It is not for this court to grant any remedy directly nor even to direct the Defendant to grant leave to remain in the present case.
122. However, the Defendant should make that decision in the light of this judgment. The following factors apply to consideration of that decision. First, in principle, the current rules, including paragraph 353B, apply and are not displaced. Secondly, nevertheless, the Defendant has a discretion not to remove the Claimant under s.10 IAA 1999 and to grant some form of leave to remain. Thirdly, in exercising that discretion the Defendant should seek to correct any injustice that may have arisen as a result of a combination of the unlawful decision in February 2011 and subsequent "repeal" of paragraph 395C. Thus, in my judgment, the Defendant should consider now whether, applying paragraph 395C and the Ch. 53 EIG guidance as it was in February 2011 (and in particular giving proper weight to the length of residence), she would have granted the Claimant leave to remain under paragraph 395C and if so, should then take into account now the need to correct any resulting injustice. In this way, the Defendant will be able both to apply current rules and to correct any injustice that may have arisen from the decision which I have decided to quash.

Consequential matters

123. I propose dealing with the consequential matters, including the form of order and costs, immediately following the handing down of this judgment, unless any party requests that they be dealt with subsequently. In that event, I will give further directions as to the procedure to be followed, including for the service of short written submissions.
124. I should add that, as I have indicated, I am conscious of the possible existence of a further decision taken by the Defendant. I do not see how a subsequent decision might affect this judgment, but if it does I am content to hear further argument. To this end, the parties are at liberty, if they so wish, to make submissions as to the effect, if any, of this subsequent decision which I have not seen.
125. Finally I should add that I am grateful to both Ms Collier and Ms Akther for the assistance they have provided to the Court in the presentation of oral and written argument in this matter.