England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		3 May 2013

1. THE DEPUTY JUDGE: This is a claim for judicial review, initially lodged on 31 July 2012, impugning the failure by the Home Secretary to make a decision, or to provide a reasoned decision, under what is known as the "Legacy" Programme in response to representations made on 8 April 2011 and 30 June 2011. Permission to make that claim was granted by Neil Garland QC on 19 October 2012.
2. At that stage, the Treasury Solicitor had written, on 25 September 2012, stating that, if the claimant withdrew his claim with no order for costs, the Home Secretary would consider the previous submissions made and any further submissions which he made within one month; and that she would then reach a decision within 3 months of the making of the consent order or any further submissions. There then followed discussion between the parties about what was to be done. On 24 December 2012, the claimant offered to withdraw if the Home Secretary undertook to make a decision within 28 days, leaving the question of the costs to be dealt with on paper. The Home Secretary refused that offer on 25 January 2013, instead seeking 3 months in which to take a decision. Thereafter, the hearing of this claim was listed for today, 3 May 2012. The parties then agreed a timetable under which the Home Secretary would take a decision by no later than 2 April 2013. The decision was in fact communicated by a letter dated 21 February 2011: ("the decision letter").
3. In the decision letter, the Secretary of State considered for the first time a claim that the claimant's removal would be incompatible with his rights under Article 8 of the European Convention on Human Rights. Given that the Secretary of State had, so she assumed, already rejected an asylum and human rights claim in February 2004, the Secretary of State decided that, when taken together with the previously considered material, the Article 8 submissions did not create a realistic prospect of success on any appeal and, accordingly, she refused to treat them as a fresh claim. She also considered that the submissions made that returning the claimant to Belarus given his medical condition will be incompatible with Articles 3 and 8 of the European Convention of Human Rights also had no realistic prospect of persuading an immigration judge that his removal would be contrary to his convention rights; and that these submissions, accordingly, did not also constitute a fresh claim.
4. The Secretary of State also decided that the claimant should not benefit from any form of leave being granted under what is known as the "Legacy". The background to the "Legacy" is set out in the judgments of Burton J in R v Hakemi & Ors v Secretary of State for the Home Department [2012] EWHC 1967 (Admin) and Stephen Morris QC sitting as a deputy judge, in this court, in R (on the application of Mohammed v Secretary of State for the Home Department [2012] EWHC 3091 (Admin).
5. By the time of the decision letter, the claimant had been in the United Kingdom for 13 years and 5 months. Notwithstanding the weight that might otherwise be given to such a period of residence in this country under the "Legacy", the Secretary of State did not consider that the grant of any leave to remain was justified. Essentially, the Secretary of State relied in particular on the facts, as she saw them, that the claimant had failed to maintain contact with the Home Office; that he had failed to inform the Home Office of changes in his representatives; and that he had failed to report for much of this period, notably between the refusal of his asylum claim in February 2004 and April 2009; and that he had been working illegally from February 2004 to May 2010. In the Secretary of State's view, the claimant's ongoing presence in the United Kingdom was only maintained because he had circumvented immigration control.
6. In accordance with the agreement between the parties, the claimant accordingly filed an amended statement of facts and grounds dated 8 April 2013, impugning the decision letter. The claimant maintained his original complaint about the delay in dealing with his submissions in those grounds, but, recognising that that complaint might be thought academic, those amended grounds mainly attacked the decision letter.
7. In her amended grounds of defence dated 19 April 2013, the Home Secretary invited the court to dismiss this claim for judicial review, although she recognised (at paragraph [33]) that the decision letter contained an error of fact. Contrary to what the decision-maker had assumed, the claimant's solicitors, Lawrence Lupin, had gone on the record as his representatives in immigration matters in October 2001. Somewhat surprisingly, given that the amended ground of defence had stated the court would be invited to dismiss the claim not withstanding that error on the same day, 19 April 2009, the Treasury Solicitor wrote to the claimant's solicitor stating that the Home Secretary proposed to withdraw her decision and reconsider the claimant's further submissions within one month of the making of the consent order, if the claimant agreed. Instead, the claimant's solicitors wrote inviting the Secretary of State to take that further decision by Friday 26 April, so as to enable the hearing today to be effective. The Home Secretary declined to do so.
8. In a note submitted to the court dated 1 May 2013 in an attempt (so it was said) to avoid confusion about the Defendant's position Miss Katherine Olley, who has appeared on behalf of the Secretary of State, stated that:

"It was not possible to say with any certainty what the outcome of the case would be if that error were corrected. It is neither possible to say that the result would remain the same, nor that it would change. For that reason, the Defendant's view is that the decision should be retaken."

She also said, however, that:

"At the present time that decision stands."

9. The logic of the Defendant's position is simply this: the Home Secretary admits that she has made an error of fact in the decision letter and that it cannot be said that the decision would have been the same had the mistake not been made. It necessarily follows that the claimant is entitled to an order quashing it, given that the Secretary of State has not withdrawn it. Accordingly, I order that the Defendant's decision dated 21 February 2013 be quashed.
10. On behalf of the claimant, Miss Catherine Robinson also invited me to order the Secretary of State to grant her client indefinite leave to remain or alternatively, to order the Secretary of State to take a further decision by 21 May 2013 and to stay this claim.
11. Before addressing those matters directly, I must say something about the significance of the error which should have been manifest throughout to the Home Office from its own records and which, understandably underlies the submissions that Miss Robinson makes in support of the order she now seeks on the claimant's behalf.
12. The claimant was born in 1958. He is a national of Belarus, although the authorities in that country do not appear to accept that he is. He appears to have entered this country clandestinely in 1999. He has now been in this country for over 13 and a half years.
13. The claimant initially claimed asylum on 16 September 1999. Given the delay in dealing with that claim, he was permitted to undertake employment without the need to obtain any further permission on 21 March 2000, at least until a decision on his asylum claim was taken.
14. In 2001, he was asked to complete a statement of evidence form ("SEF"). It was returned on 13 September 2001. In it, he stated that his address was at 398 High Willesden, London NW10 2DY and that his representatives were J Cooper Solicitors.
15. On 18 October 2001, Lawrence Lupin solicitors informed the Home Office that they were now instructed by the claimant and asked for all correspondence dealing with claimant's immigration status to be addressed to them. That was noted on the Home Office's own records, as the Secretary of State now belatedly accepts.
16. The Home Secretary decided to refuse the claimant's claim for asylum after he had failed to attend a substantive interview on 4 February 2004. The letter inviting him to that interview was not addressed to the address in the SEF, but to 398 High Willesden Street. The claimant says that he never received it.
17. In the event, letters giving the reasons for refusal of his asylum and human rights claim; notice of his right to appeal; notice that he was liable to removal; and notice that his temporary admission was subject to reporting requirements were sent to his former solicitors, J Cooper solicitors, who were not then dealing with the matter. They were not sent to the solicitors then on the record, Lawrence Lupin. They were returned: "Not called for, addressee gone away." The Immigration Officer's Report, stating where these documents had been sent, did not suggest that they had been sent directly to the claimant. It stated that they had been sent only to his representative and indicated that the decisions had to be noted on the file as his whereabouts were unknown. Miss Olley, on behalf of the Secretary of State, was unable to point to any evidence that they had been sent to the claimant directly. This afternoon she has accepted on behalf of the Secretary of State that they, in fact, were not.
18. The consequence is that it would appear that no written notice of the immigration decision refusing the claimant leave to remain dismissing his asylum and human rights claim and informing him of his rights to appeal, were given, as it had to be, under the Immigration (Notices) Regulations 2003. The asylum and human rights claim then made would appear accordingly to be outstanding and need to be determined.
19. The claimant has given evidence that did not know that these decisions had been taken. The assumption in the decision letter, therefore, that the claimant was aware of these decisions, or would have been had he notified the Home Office who his representatives were, is thus apparently wholly unfounded.
20. A person on temporary admission can be made subject to restrictions, such as reporting restrictions under paragraph 21(2) of schedule 2 of the Immigration Act 1971. provided that they are notified to him in writing. There does not appear to be an express power to serve such notification by post, but in any event, the notice imposing the reporting restrictions formed part of the package sent to the claimant's former representatives, but returned unopened in February 2004. As I have said, the claimant says that he never received these documents.
21. In March 2007, it appears that the Home Secretary found that the claimant was still living in the E6 area in London. For some reason, however, the Home Secretary then sent a notice imposing restrictions on the claimant's temporary admission, requiring him to report fortnightly to 398 High Road in Willesden, which was not the last correspondence address given in the SEF. Nor, so it would appear, was it where the Home Secretary then thought he was living. It was sent back as: "Returned, as not called for." Nothing was sent to the claimant's solicitors. As Miss Olley has accepted this afternoon, it follows that these reporting requirements do not appear to be imposed on the claimant as conditions of his temporary admission.
22. The claimant had been working for Sainsbury's since August 2000. In the decision letter, the Secretary of State considered that he had ceased to be permitted to work when his asylum application was refused. The notice seeking to impose restrictions on his temporary omission, dated 20 February 2004, did not purport to terminate his permission to work, or to require him not to do so. In fact, given that the notice of asylum decision was not apparently served on the claimant or his then representative, the Secretary of State now accepts that the claimant was entitled to continue to work thereafter. He did so. Apart from the gap in 2005/2006, the claimant continued to work for Sainsbury's.
23. The claimant's case was transferred to the Case Resolution Directorate in August 2007. New solicitors, Soods solicitors, wrote to the UKBA on 3 April 2009, taking over his case and giving the UKBA his then address in Borehamwood in Essex. The claimant subsequently supplied various pieces of information as required. It appears that in September 2009, the Case Resolution Directorate decided that the claimant should not be granted leave to remain. It does not appear that the claimant was ever informed of that decision.
24. The claimant has been reporting as he has been required to do since September 2009. Nothing further appears to have been done by the Home Office about his case, however, until the claimant was arrested on 21 March 2011. Given his age and potential heart problems, he was released on the same day.
25. Shortly thereafter, his new representative, Elizabeth M Millar submitted further representations on 8 April 2011 and on 30 June 2011. In the latter, she pointed to a significant number of what she claimed were factual inaccuracies in the Home Office file (which she had by then obtained) and which she claimed had infected the internal appraisal of the claimant's case. These included the contention that he had been working illegally for ten years, and mistakes about the claimant being a failed asylum seeker and failing to report, given the failure to notify him, or his then representatives, Lawrence Lupin, of the asylum interview and of the resulting decisions. She also complained of the failure to contact his solicitors and the general delays at the Home Office and asserted that, but for the failure to look properly at his file, the claimant would have been granted indefinite leave to remain under the "Legacy" in 2009.
26. After the Home Office had contacted Sainsbury's, it appears that they terminated the claimant's employment in May 2010, as he was unable to prove that he had permission to work. Whilst awaiting the outcome of these further submissions, the claimant lived off his savings and was reliant on the goodwill of his girlfriend and his friends. He was refused asylum support, because it was said he had no outstanding asylum claim. When this claim was issued in July 2012, he was facing imminent homelessness. Given his rent arrears, the Watford County Court had ordered him to leave his home by 29 August 2012, and he has apparently had to do so.
27. The claimant's then solicitor, Elizabeth M Millar, sent chasing letters to the Defendant on 26 August 2011; 15 September 2011; 11 and 28 October 2011; 16 November 2011; and 16 December 2011. The claimant instructed his current solicitors, Lawrence Lupin, again on 27 February 2012. They sent chasing letters dated 2 March and 2 May 2012, and a pre-action protocol letter on 4 July 2012. On 24 July 2012, the UKBA informed the claimant's solicitors that the Case Assurance and Audit Unit had taken over his case which would be dealt with, so they said, in due course. They also stated that they had no outstanding applications to consider.
28. Against that background, the significance of the factual error appears to be this.
29. Firstly, there has been no determination of the claimant's asylum and human rights' claims. The Secretary of State would appear accordingly to have been wrong in treating the relevant question as whether the further submissions in respect of convention rights amounted to a fresh claim.
30. Secondly, as I have mentioned, the Secretary of State relied on the facts, as she saw them, that the claimant had failed to maintain contact with the Home Office; that he had failed to inform the Home Office of changes in his representatives; and that he had failed to report during much of this period, notably between the refusal of his asylum claim in February 2004 and April 2009; and that he had been working illegally from February 2004 to May 2010. In the Secretary of State's view, the claimant's ongoing presence in the United Kingdom was only maintained because he had circumvented immigration control, following the refusal of his asylum claim, which the Secretary of State plainly assumed he knew about.
31. It would appear that there was no basis for saying that the claimant had failed to inform the Secretary of State about the changes in his representatives. It would equally appear that there was no basis for saying that he failed to report as required between February 2004 and April 2009, because he does not appear to have been informed of the requirement to report. Further, it would equally appear that there was a basis for saying that the claimant has only maintained his presence here by circumventing immigration control. Nor would it appear that there is a basis for the suggestion that he had been working here illegally if, as is now accepted, he was not informed of the asylum refusal or decision.
32. Thirdly, the claimant also lost his home in 2012 and has had to rely on his girlfriend and his friends for support since he lost his job with Sainsbury's in May 2010, following the Home Office contacting that firm and his being unable to satisfy that firm that he had permission to work.
33. The mistake about the fact that he had changed his representative to Lawrence Lupin, and that the relevant notices had been sent to the wrong representatives and returned in 2004, should have been obvious throughout to the Home~Secretary given the Home Office's own records. They were pointed out by the claimant's solicitors in June 2011. Yet no consideration was apparently given to ascertaining whether that mistake had in fact been made, even when the decision letter was issued in February 2013. It was only acknowledged on 19 April this year when the Secretary of State nonetheless indicated that she thought this claim should be dismissed. No thought appears to have been given, even then, to the consequences of this mistake. It has only been today, after I have questioned Miss Olley, that it was accepted that the notices in February 2004 were not properly served; that the claimant's original asylum and human rights claim has yet to be determined; that the claimant was not properly notified of reporting requirements between 2004 and 2009; and that he has not been working illegally.
34. It is against that background that Miss Robinson seeks the further orders I have mentioned. She submits that the claimant is entitled to an order requiring the Secretary of State to grant him indefinite leave to remain, or at least to a finding of some description that no reasonable Secretary of State could do other than grant him indefinite leave to remain.
35. The power to grant leave to remain in this country is one that Parliament has vested in the Secretary of State, not in this court. It is now well established that this court has no power to order the Secretary of State to grant leave to remain.
36. It may have appeared earlier from the decision of the Court of Appeal in Rashid v Secretary of State for the Home Department [2005] EWCA Civ 744, and in particular, the judgment of Pill LJ in that case, that this court did have such a power. That judgment has given rise to a number of difficulties, however, which have been considered in a number of cases. The decisions in these cases, including Rashid, were all concerned with cases in which (a) an individual was denied a particular benefit to which he would have been entitled, had a policy then applicable been applied to him, but (b) that policy was unlawfully not then applied to him; and (c) a subsequent decision was taken denying him that benefit when he was no longer entitled to it under the policy applicable at the time of the second decision. They were thus concerned with the question how a decision-maker should deal with the case in which he has previously acted unlawfully and the circumstances in which, when taking a decision subsequently, it may be unlawful for him to deny an individual a benefit to which he is not then entitled, in order to compensate him, in effect, for the decision-maker's earlier unlawful conduct which deprived him of it.
37. I considered Rashid and some of the subsequent cases in the Court of Appeal considering that case, in Patel and Ors v Secretary of State for the Home Department [2012] EWHC 2100 (Admin) at paragraph 85 and following. For present purposes, it is sufficient to refer to R(S) v Secretary of State for the Home Department [2007] EWCA Civ 546. In that case, Carnath LJ, as he then was, stated at [46]:

"The court itself had no power to grant ILR. Nor in a conventional analysis did it have power to direct the Secretary of State to grant ILR. The power and the discretion rested with the Secretary of State. It was not open to the court to assume that function. See R v Barnet London Borough Council ex parte Shah [1983] 2 AC 309 350 [f to g]. However, it was open to the court to determine that a legally material factor in the exercise of that discretion was the correction of an injustice. That proposition does not require statutory authority. It was implicit in the principles of fairness and consistency which underlay the whole statutory scheme. Further, in an extreme case, the court could hold that the unfairness was so obvious and the remedy so plain there was only one way in which the Secretary of State could reasonably exercise his discretion."

38. The proposition that the court has no power to grant indefinite leave to remain was also reaffirmed more recently in EU (Afghanistan) and Ors v Secretary of State for the Home Department [2013] EWCA Civ 32. In his judgment, Sir Stanley Burnton, with whom the other members of the court agreed, stated at [6]:

"I have to say that like the Court of Appeal in S, I have great difficulties with the judgments in Rashid ... the principle in Rashid has been referred to as the "protective principle". This is a misnomer: the person seeking to rely on this principle needs to do so only because he has been found not to be in need of protection. I do not think the court should require or encourage the Secretary of State to grant leave in such circumstances, either in order to mark the Court's displeasure at her conduct, or as a sanction for her misconduct. I agree with the short judgment of Lightman J in S. He said:

"I have the gravest difficulty seeing how the fact that the challenge to the administrative act or decision falls within one category of unlawfulness as distinguished from another, and in particular the fact that it constitutes an abuse of power, giving rise to conspicuous unfairness can extend to the remedies available to the courts."

39. It may be possible to arrive at a conclusion that no reasonable Secretary of State could refuse to grant leave to remain on the basis of the facts known to her, but that depends on what the facts are which are known to her may be. She is the primary finder of fact and the person responsible for making inferences or drawing conclusions from them, and not this court. Moreover, it is her function to consider the application of the immigration rules and her policies to what she has found to be the case. Such judgments by her are subject to review by this court of well known and well recognised principles. What the court does not have the power to do is to substitute its judgment for hers.
40. Although the Secretary of State made the mistake, and I have referred to what appeared to have been its consequences, it is nonetheless for the Secretary of State to reach conclusions on what the factual position would have been in her view, absent the mistake, and whether or not leave to remain should be granted in the light of her policies. In this case, given that the Home Secretary accepts she must reconsider what the facts are and what inferences and judgments should be made in the light of them, given the mistake that she has made, that is a task for her to discharge, subject to review by this court.
41. There is a further problem with Miss Robinson's invitation for me to form a view about whether the only reasonable conclusion which the Secretary of State could have reached in February of this year is that ILR should be granted. As I understand it, the Secretary of State's current policy when granting leave in "Legacy" cases is to grant discretionary leave to remain for 3 years. Miss Robinson is thus in substance inviting me to look at the position at an earlier date, when it may have been the practice in many cases for the Secretary of State to grant indefinite leave to remain to those in the "Legacy" who were given leave to remain. That, she might suggest, is necessary to correct an earlier injustice.
42. I have described the type of case Rashid deals with. Miss Robinson submitted in her skeleton argument, seeking to rely on the observations of Stephen Morris QC in R(Mohammed)v SSHD [2012] EWHC 3091 (Admin) to which I have referred at [122], that on any reconsideration, the Secretary of State was bound to consider (i) what leave the claimant would have been given had a decision been taken within a reasonable period, or an unlawful decision not been taken; (ii) take into account the need to correct any resulting injustice, and then (iii) within the scope of the existing rules correct any such injustice.
43. I doubt whether this analysis can survive the decision of the Court of Appeal in EU, to which I have referred. At paragraph [34] of his judgment, Sir Stanley Burnton stated that:

"It is also contended for QA that the Secretary of State's delay in determining his claims resulted in prejudice that should be remedied by the grant of leave to remain, since if his claims had been timeously determined, he would have been granted asylum. This contention is inconsistent with the fundamental principle of asylum law and practice upheld by this court in the judgment. The claims are decided on the basis of the facts at the date of the decision. It is inherent in this context that decisions made at different times may have different outcomes. Delays on the part of the Secretary of State in determining the claims at least, if not deliberately, do not justify their determination on an artificial basis of obsolete facts."

If the earlier unlawful denial of leave to an individual who was then entitled to it (because he would have been a successful asylum claimant) does not justify a subsequent grant of leave when an individual is not then entitled to it, then, a fortiori, in my judgment, an earlier unlawful refusal to grant discretionary leave to an individual cannot justify the grant of such leave when it is not thought appropriate in the circumstances then prevailing to grant it. There is, of course, no allegation in this case of any deliberate unlawful action or inaction on the part of the Home Secretary.

44. But, even if I am wrong in that, in my judgment, there is no requirement to correct any injustice, if there has been one as a result of any unlawful decision. There is merely a requirement to take any such injustice into account. That may be of mandatory relevant consideration, but it is not, and it cannot be, the only relevant consideration which may be taken into account when taking a subsequent relevant decision. I very much doubt whether Mr Morris intended to suggest otherwise in Mohammed. But if he did, in my judgment, any such suggestion would be plainly wrong. Absent any statutory provision to the contrary, any discretionary decision falls to be taken by reference to the circumstances as they are when that decision is taken. One of those may be the existence of a previous unlawful action or a legitimate expectation to which a decision-maker has previously given rise. But the existence of such considerations cannot make irrelevant considerations which would otherwise be relevant.
45. In my judgment, therefore, the claimant is not entitled to an order requiring the Secretary of State to grant indefinite leave to remain. Nor is he entitled to a finding that the only reasonable decision the Secretary of State could have reached in February 2013 was to grant him indefinite leave to remain.
46. Miss Robinson also invited me to order the Secretary of State to take a further decision by 21 May. I fully understand the dissatisfaction that the claimant has with the handling of his case and the delays involved on the part of the Home Office. That order, however, is not one that I am prepared to make, as I am not satisfied that the Secretary of State can reasonably be expected to reach that decision on all the matters which the claimant's case raises by that date. Its determination may involve, for example, a further asylum interview. The Secretary of State is prepared to undertake to use her best endeavours to take a decision on the application in respect of the "Legacy" by 30 May 2013. On that basis, I refuse the mandatory order sought.
47. Finally, Miss Robinson invited me to stay this claim until after the Secretary of State had taken a further decision given the complaints about the delay.
48. Whether the Secretary of State had failed to deal with the application made to her in a reasonable period when this claim was issued is not a reason for staying this claim. The delay by the date of this claim was either lawful or unlawful. In truth, what the claimant is understandably concerned with is to be able to return to this court without delay to challenge any further adverse decision. That, in my judgment, is not a reason to stay the determination of this claim. If the Secretary of State takes any decision which does not constitute an immigration decision against which there is a right of appeal on the merits, the claimant's remedy is to bring a further claim for judicial review against that decision. Judicial review is not an on-going process of continuing oversight of any case which an authority may have to deal. It involves a claim with respect to the unlawfulness of a particular decision or a failure to act.
49. Accordingly, given the undertaking by the Defendant to make a further decision which I have mentioned, this claim for judicial review succeeds, and the Secretary of State's decision dated 21 February 2013 will be quashed.
50. MISS ROBINSON: My Lord, in respect of costs, could I make an application for the claimant's reasonable costs, if not agreed, to be assessed.
51. THE DEPUTY JUDGE: Miss Olley?
52. MISS OLLEY: My Lord, I am grateful for your Lordship's judgment. I do not resist the costs on principle. I am tempted to suggest that in respect of today we could have avoided the hearing, but I do not think that is a very attractive submission in the light of the circumstances, so I do not argue against the costs.
53. THE DEPUTY JUDGE: There will be an order that the Secretary of State shall pay the claimant's costs to be taxed, if not agreed.
54. MISS ROBINSON: I am grateful.
55. THE DEPUTY JUDGE: Is there anything else that I need to do?
56. MISS OLLEY: No.
57. MISS ROBINSON: Sorry, also, if you could order an assessment of any Legal Aid costs?
58. THE DEPUTY JUDGE: I will make the usual order for the assessment of Legal Aid costs.
59. MISS ROBINSON: I am grateful.
60. THE DEPUTY JUDGE: Could I thank both counsel for their assistance. Could you agree a draft order and give it to the associate? As you will recall, I gave you both leave to amend your grounds today and I suspect that ought to be recorded in the order, too.
61. MISS OLLEY: We will record that as well.
62. THE DEPUTY JUDGE: Thank you very much.