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
		24 July 2013

Lord Carlile of Berriew QC :

1. The Claimant applies for Judicial Review of the decision of the Defendant Secretary of State. The decision, dated the 10 February 2012, refused the Claimant leave to remain in the United Kingdom under the 'legacy' programme and/or to consider the representations of the Claimant as a fresh claim.
2. The decision was supplemented by a letter dated the 29 May 2013 confirming the February 2012 decision.
3. After consideration by two judges earlier in the process, permission to apply for Judicial Review was granted by Stadlen J at an oral hearing on the 5 December 2012.
4. The basis of the claim was that the Defendant created a legitimate expectation that the Claimant's case would be reviewed and concluded by July 2011; that the Claimant was entitled to indefinite leave to remain under Immigration Rules paragraph 395C; that removal from the UK would be disproportionate having regard to private and family life issues (ECHR Article 8); and that the delay by the Defendant in communicating the legacy decision with reasons and the refusal of leave were irrational and unlawful.
5. The Defendant responded saying the matter had been considered at the time of the original refusal, and reconsidered in May 2013; that it was not a marginal decision; that it was considered in a timely manner having regard to the challenging administrative context of the legacy programme; and that the correct legal principles had been applied.
6. The last paragraph of the Defendant's letter of the 29 May 2013 was relied upon in particular as the encapsulation of the Defendant's decision:

'For completeness, the case has been considered on the basis of your claimed period of residence. The disputed period consist of illegal residence after an illegal entry to the UK following removal after a failed asylum claim. Whilst the period is of some length, given the circumstances in which the alleged residence is said to have been achieved, the adverse factors weigh against such significance being attached to that period as would lead to a different result if the period were substantiated. Bare unlawful residence accrued whilst out of contact with the UK immigration authorities after illegal entry cannot be considered to be significant in itself in this case and there are no other factors identified by paragraph 395C which would assist in justifying a decision not to pursue removal in this case. In particular, the independent judicial assessment was that there had been minimal integration into UK society. No independent cogent evidence is provided of special features associated with age, domestic circumstances, strength of connections with the UK, compassionate circumstances or personal history (including character, conduct and employment) to which substantial weight could be given. It is noted that there is no negative factor of known convictions in the UK but that does not justify a decision not to pursue removal in this case where there has been persistent and substantial disregard for UK immigration law.'

7. The Claimant's relevant history commenced with his entry into the UK on the 2 October 1997, when he claimed asylum. Asylum was refused. He was removed to Pakistan on the 18 May 2000. It was claimed that he returned on the 1 September 2001, to the knowledge of the Home Office. This latter fact appeared to be accepted by a letter dated the 4 September 2009 written by a UK Border Agency Official to the Claimant's solicitors. However, there were no records to indicate that the Defendant had knowledge or notice of such entry, and in my judgement the material part of the letter was a poorly phrased reflection of, rather than an acceptance of the claim that re-entry had occurred on that date.
8. A further application for asylum was pursued more recently, but rejected by the First-tier Tribunal on the 25 August 2010. The Immigration Judge found the Claimant not to be a credible witness.
9. There remained a dispute as to when the Claimant re-entered the UK. The decision of the Defendant was based on such evidence as she was given by the Claimant's solicitors. Before this Court various documents, including attendance records from private medical appointments, suggested that he was in the UK at various times between 2003 and 2007. These records formed no part of the Defendant's decision, as for reasons unexplained the Claimant's solicitors did not place them before the Defendant. Home Office routine records appeared to show as a fact knowledge on the part of the Department that the Claimant was in the UK in 2008.
10. That said, the dates of the Claimant's presence in the country become a side issue given the Defendant's approach as described in the letter quoted above, namely that the matter was considered on the basis of continuous, albeit unlawful presence since 2001.
11. Permission was granted by Stadlen J on a narrow question of whether the Defendant had provided adequate reasons to demonstrate that regard had been given to the guidance in Enforcement Instructions and Guidance [EIG] Chapter 53 on the significance that can be attached to length of residence in the UK when considering whether to exercise the broad discretion to grant leave to remain outside the Immigration Rules (in cases where an individual has no grounds to entitle them to protection under the ECHR).
12. The edition of Chapter 53 in use at the material time has now been revised: without reproducing the applicable version in its extensive text, it set out a number of factors to be considered in cases such as this, such factors intended to be the same as those outlined in Immigration Rules paragraph 395C. The particular considerations were age (youth), length of residence in the UK, residence accrued as a result of non-compliance by the individual, residence accrued as a result of delay by UKBA, personal history (including character, conduct and employment record), strength of connections with the UK, domestic circumstances, and compassionate circumstances.
13. Counsel for the Claimant Mr Pretzell relied heavily on the decision in R (Mohammed) v SSHD [2012] EWHC 3091 (Admin). In that case the learned deputy High Court Judge said:

"[75] ... 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 judgement the caseworker in .. the present case should have consciously taken into account."

14. The Claimant relied too on the proposition that the decision letters showed no specific engagement with Chapter 53, which should have been spelled out and dealt with point by point in conveying the decision.
15. As against that, the defendant relied on R (Baser) v SSHD [2012] EWHC 3620 (Admin). In that case Eady J said:

"[16] It is important to note that this Claimant was an illegal entrant and paragraph 395C accordingly has no direct application to his case. Nevertheless, , even in such cases, it has been recognised that it would be relevant for caseworkers to have regard to the considerations listed in Chapter 53, as guidance, while always remembering that the discretionary exercise requires a 'holistic' evaluation of cases based on a range of factors – both positive and negative: see Hakemi [2012]EWHC 1967 (Admin) at [8] and [15]."

16. In my judgement no principle is to be derived from the decision in Mohammed, and the learned Judge claimed none. Ms Anderson, Counsel for the Defendant, suggested that the case was wrongly decided. I do not draw that conclusion, but rather find it a decision on its own facts, which differ from those in the instant case. My task is to examine whether the decision was 'holistic' and taken in the round, having regard to the period between 2008 and the decision under review, and any undue delay to be laid at the Defendant's door. I do so on the basis of the 29 May 2013 letter, taking as material the full claimed period of residence, and that on the evidence the Department was aware of the Claimant's presence from February 2008.
17. As Ms Anderson reminded the Court, Chapter 53 decisions are not immigration decisions (as compared with, for example, an asylum application). Chapter 53 cases start from the standpoint of a policy to remove. The question for the Secretary of State is whether, on application of the Chapter, there are sufficient reasons to justify a stay on removal. In this case the only exceptional factors were the period of time spent in the UK, much of it illegally (2001-2008), and such delay thereafter as could be regarded as worthy of criticism given the special administrative demands connected with the legacy programme.
18. The Defendant submitted too that it was plain from the decision letters that the Chapter 53 factors had been taken fully into account, without the Chapter being tabulated and refutation provided issue by issue. Ms Anderson asserted that there was plain evidence that the decision was 'holistic', in the round, and that it was well within the appropriate and lawful discretion of the Secretary of State.
19. In essence, said the Defendant, this was a case in which the Claimant had practised deception on the immigration system by lying low as an illegal entrant for 6 to 7 years, and lacked credibility as the First-tier tribunal found in 2010.
20. In my judgement the Defendant's submissions were preferable. Helpfully, in the single paragraph quoted in paragraph 6 above the reasons were given very clearly and concisely. The decision was well within the rational discretion of the Secretary of State, which was applied on correct principles and took into account all the material factors. She was not required to tabulate Chapter 53 and check off each factor listed, with separate reasons for each factor, as long as it is clear on the evidence that she applied the Chapter. In my judgement she did.
21. In those circumstances, this application for Judicial Review is refused.