QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Sitting as a Judge of the High Court
| R (on the application of)
|Secretary of State for the Home Department
Mr Richard Moules (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 10 May 2013
Crown Copyright ©
His Honour Judge Anthony Thornton QC :
(1) 22. 23.4. 1999 C arrived in England and claimed asylum
(2) 10.1.2001 Asylum claim refused ELR granted until 22.5.2001
(3) 19.2.2003 C applied for extension of his leave
(4) 3.2.2005 Application refused
(5) 2006 Then Home Secretary made a commitment that UKBA 'must deal with the legacy of unresolved asylum cases no later than the summer of 2011". A 'conclusion' generally understood to mean a grant of ILR or removed from UK. (CI of Borders and Immigration in March July 2012 report).
The description of such cases as "legacy cases" is taken from the Home Secretary's House of Commons statement. The CRD was set up soon afterwards within the UKBA to process "the legacy of unresolved asylum cases".
(6) 5.3.2007 Cut-off date for asylum applications leading to referral to CRD legacy process
(7) April 2007 Amendments to Chapter 53 of the EIG
(8) August 2009 Amendments to Chapter 53 of the EIG: "This gave caseworkers scope to consider granting persons permission if they had been in the UK for six to eight years rather than ten to twelve years as previously stated." And "almost all of the cases that have been granted were all individuals who had been in the UK in excess of 6 years" (UKBA witness statement quoted in Hakemi, paragraph 15)
(9) 26.10.2009 C submitted further representations
(10) 8.6.2010 C submitted further representations
(11) 14.7.2010 D informed C his case would be considered under the Legacy Programme
(12) 1.9.2010 C submitted further representations
(13) 29.10.2010 D internal email memo: "where a case is genuinely borderline most often if the negatives associated with an applicant are associated with non-compliant behaviour rather than criminality it is more likely that we would err on the side of granting. But we do apply the guidance on non-compliance as detailed in chapter 53 of the EIG."(UKBA internal email memo quoted in Hakemi, paragraph 8)
(14) 28.3.2011 C submitted further representations
(15) 31.3.2011 CRD completed its internal review of all legacy asylum cases
(16) 16.5.2011 C submitted further representations
(17) July 2011 CI of Borders and Immigration (March July 2012 report): "I consider that applicants who had been told that their case would be dealt with by July 2011 had a reasonable expectation that their cases would be resolved by that date".
Transfer of estimated 116,000 "rump" of CRD cases to CAAU including estimated 18,000 active cases
(18) 13.7.2011 C submitted further representations
(19) 20.7.2011 IRs amended: Applications to remain to be determined by reference to new Rules
EIG amended: appropriate duration of leave following a favourable consideration of paragraph 395C changed; maximum grant of DLR 3 years; no transitional periods
(20) 31.8.2011 4,800 of the 18,000 active cases: "apply the following criteria under paragraph 395C use the lowest limit of 4 years' residency for single applicants use the lower limit of 3 years' residency for families."(UKBA internal email memo quoted in Hakemi, paragraph 9)
(21) 31.1.2012 C's PAP letter
(22) 19.1.2012 Paragraph 395C deleted from IRs and replaced with paragraph 353B
(23) 9.7.2012 EIG amended: in determining whether or not exceptional circumstances exist, 353B factors should be considered as a whole; DLR should be a maximum of 30 months (3 years in exceptional cases)
(24) 27.2.2012 C's claim form filed
(25) 22.3.2012 D agrees to consider further reps within 3 months
(26) 3.8.2012 D refused representations and refused to treat them as a fresh claim
(27) March 2013 Target date for resolution of all cases where individuals remained in the UK
This C's relevant circumstances
Basis of claim for challenging the refusal of representations
" it is not considered that your length of residence on its own suggests that you should benefit from a grant of leave. Consideration has also been given to your strength of connections in the UK but you have not submitted anything to suggest that you have ties here which are strong enough to give rise to a grant of leave. Furthermore, it is believed that there are no compelling compassionate circumstances in your case which would give rise to a grant of leave."
Claimant's case in summary
(1) Basic fairness required the defendant to treat all "legacy" cases alike and not to close the CRD or to shut off the prevailing CRD approach to decision-making in such cases before the files in all those cases had been completed and closed. The defendant should have adopted a system in July 2011 for decision-making in open legacy cases whereby those who were adversely affected by the closure of the CRD, and by the imposition of an arbitrary cut-off from CRD decision-making, should have been provided with transitional arrangements so as to ensure that their outstanding open files would be dealt with in the way that the CRD would have dealt with them. The failure to implement such transitional arrangements is unconscionable, unfair, unlawful, a breach of article 8 (private and family life), disproportionate, arbitrary and a failure to give effect to the legitimate expectation of those with outstanding open files.
(2) The claimant's case is similar to Mohammed where judicial review was granted and is not excluded by Hakemi since the periods of residence in 3 of the 4 cases considered in Hakemi were less than 6 years and the fourth case was ruled out on the basis of that claimant's significant deception. In this case, there is nothing of any note which could reasonably found a refusal of leave given the claimant's unblemished and lengthy period of residence.
(3) The large and growing number of cases relying on this "legacy principle" shows that there is a new and developing type of case which is loosely labelled "legacy" which appears susceptible to judicial review for which none of the present categories of judicial review are fully adequate to address. This type of case has hallmarks of the need for consistency and the treatment of similar cases in similar ways, legitimate expectation, the need for rational and structured decision-making, a change of policy and practice without giving thought to the "transitional cases", the failure to address article 8 (both private and family life) in the context of the consequences of the Reid "legacy" solution to the Home Office and UKBA's inability to cope with the backlog of asylum claims in 2007 and the shortcomings of the Immigration Rules process which is a unique form of legislation created by informal parliamentary approval rather than by enactment.
(4) This judicial review melange is further added to by the UKBA's present stance that there is no such thing as a "legacy" case and that the Secretary of State may and does change policy with immediate effect without affected individuals being entitled to complain or to seek to rely on a transitional regime. Moreover, all "legacy" claimants were living unlawfully in the UK and should have left the UK and "gone home" as soon as they became appeal rights exhausted. All these assumptions or contentions are open to challenge.
1. Permission will be granted.
2. Expedition will be ordered
3. The court will send to the parties directions for the hearing following the hand down.