England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/09/2013

MR C M G OCKELTON :

1. This is an application for judicial review. Permission was granted by Mr Jeremy Stuart-Smith QC, sitting as a Deputy Judge of this Court. The Claimant challenges the Defendant's decision of 13 September 2011 granting him three years discretionary leave to remain and the Defendant's failure to grant him indefinite leave to remain.

The Claimant's Immigration History

2. The Claimant is a national of Iraq, born there on 1 July 1983. On 20 March 2003 he came to the United Kingdom. He entered illegally and claimed asylum. The Secretary of State refused his claim on 19 July 2006 and made a decision to give directions for his removal as an illegal entrant. The Claimant appealed against that decision. His appeal came before an Immigration Judge in September 2006. The Immigration Judge heard evidence from the Claimant: the Defendant was not represented before him. The Immigration Judge noted that he had given various inconsistent accounts of the events leading to his decision to leave Iraq, which was said to have taken place shortly before his departure in 2003. The Judge concluded that the Appellant before him had "deliberately decided to tell a completely different story in his asylum interview and in his later statement", and that he "completely lacks credibility". His appeal rights were exhausted by the end of October 2006. He made further representations to the Secretary of State by letters in 2007, 2008 and 2009. On 22 September 2009 the Secretary of State responded to all those representations, concluding that they did not give any good reason for reversing the previous decision and the conclusion of the Immigration Judge, and that the submissions did not amount to a "fresh claim" within the meaning of paragraph 353 of the Statement of Changes in Immigration Rules, HC395. the letter concluded by saying that it followed that the Claimant had no lawful basis for staying in the United Kingdom and that he should make arrangements to depart. There was no challenge to that decision, nor was there any suggestion that the Secretary of State had an obligation to make an earlier decision on the various further representations that had been made in the period since the dismissal of the Claimant's appeal.
3. On 8 October 2009 removal directions were set. There was no challenge to the decision to remove the Claimant: indeed he applied for Assisted Voluntary Return, but that application was rejected because of the terms of that scheme.
4. On 15 October 2009, in accordance with the directions, the Claimant was removed to Iraq, but on arrival there it was discovered that the Iraqi authorities would not accept him. He was returned to the United Kingdom on 16 October 2009, and was detained for a short period before being granted temporary admission.
5. Some time in the spring of 2010, the Claimant left the Untied Kingdom. He hid himself in a lorry in order to travel to Belgium, entering both that country and, apparently, France en route, unlawfully. He has said that the purpose of his journey was to claim asylum in Belgium. There is no doubt that he voluntarily and unlawfully travelled to Belgium: he was returned by the Belgian authorities under Dublin II arrangements on 19 June 2010. He has, however, never been prepared to give full details of this trip. He has consistently said that he departed the United Kingdom in March, but it appears that he was seen by a doctor and subsequently a psychiatrist on 18-19 May in the United Kingdom, although on 28 May 2010 his social worker informed the Secretary of State that the Claimant had left the United Kingdom. On 11 June 2010, however, (well before his Dublin II return) he telephoned an officer of the Secretary of State, saying that he was afraid to comply with his reporting conditions in case there was a further attempt to remove him. It does not appear from the minute that he admitted being outside the United Kingdom (and therefore unable to report without making a further unlawful entry) at the time that the call was made. His claim to asylum in Belgium does not appear to have been made until shortly before his removal from that country. I have been given no reason to suppose that the information given by his social worker was incorrect at the date it was given.
6. Nothing before me suggests that any information deriving directly from the Claimant is worthy of credit. He may have made more than one journey to Belgium. Although the only reason given for going to Belgium is to claim asylum, I can see no good reason for saying that he made such a claim promptly after arriving there. And it does look as though he must have been telephoning from outside the United Kingdom in June 2010 and being very much less than candid about where he was: the author of the minute was able to take the view that "it does appear that he still lives somewhere in Southampton". A further minute on 6 July appears to indicate that on that date an officer dealing with the Claimant's case thought that the Claimant could be removed from the United Kingdom to Iraq relatively soon, but two days later a note referring to "arrival directions and laissez passer" would tend to show that the author of that note was aware that the Claimant was abroad and imminently returning to the United Kingdom.
7. On the Claimant's return to the United Kingdom on 19 July he claimed asylum again. He was interviewed again. A letter was prepared on 9 October 2010 noting that the Claimant had specifically said that his claim was the same as before, although there were now some extra documents. The letter considers the claim, the Claimant's history and the new documents, concludes that the submissions do not amount to a fresh claim, and state that the claim is clearly unfounded within the meaning of section 94(2) of the Nationality, Immigration and Asylum Act 2002 and that "a certificate is issued" under that section. The affect of such a certificate is that the Claimant would have a right of appeal, but only from outside the United Kingdom.
8. It appears that that letter was not served. On 29 October an MP wrote to the Secretary of State asking for an update on the Claimant's position, and was told on 19 November that the Claimant had no outstanding applications. That was presumably because of the letter of 9 October. The Home Office minutes six months later indicate investigations as to whether the letter had been sent out, and a conclusion that it had not. But on 5 December 2010 a letter had been sent to the MP correcting the previous one, and indicating that there was a claim outstanding. The letter dated 9 October 2010 was eventually served on 5 April 2011. Meanwhile, in an undated letter apparently sent on or about 15 December 2010 the Claimant's solicitors were told that there were outstanding representations: the previous statement was "due to an administrative error with our records which has now been rectified". The letter continued by saying that "upon reviewing your client's Home Office file it has now been sent to our Case Resolution Department".
9. The Case Resolution Department (CRD) was therefore responsible for sending out the letter of 9 October 2010, and was evidently content that it be served, although having been made by a different branch of the UKBA. The CRD was the office primarily responsible for determining "legacy" cases (see below).
10. There were further submissions by the Claimant. Home Office minutes show that, following his return from Belgium, he had made appointments to make further submissions on 2 August and 21 October 2010 but failed to attend; however on 10 May 2011 he attended and made further representations. In July 2011, on the closure of CRD, the Claimant's case was transferred to the Case Assurance and Audit Unit (CAAU). On 13 September 2011 the Secretary of State granted the Claimant Discretionary Leave to Remain (DLR) for three years. The reasons were noted as follows:

"Initial delay in deciding asylum claim was an error on UKBA's behalf. The applicant has also departed the UK, but through no fault of his own, was turned back from Iraq. It also appears that further submissions decision of 9/10/10 was only served to file.

The applicant has a girlfriend in the UK. He has also been treated for mental illness after several suicide attempts.

After assessing all of the evidence I deem it appropriate to grant Mr R discretionary leave on the basis of eight years residency which can be mainly attributed to delays caused by UKBA."

11. Just under three months later the Claimant issued these proceedings, challenging the failure to grant him indefinite leave to remain (ILR). In January 2012, an officer dealing with the Claimant's pre-action protocol letter noted as follows:

"It is unclear why this Claimant was granted DL as he claimed asylum in Belgium in 2010 and spent over four months there.

It would appear that the file was not requested, so this information was not noticed"

Other Matters

12. There are other factual matters which it is convenient to set out here. The first relates to the Claimant's family life. The evidence shows that he had a relationship with a woman, leading to the birth of a son in October 2005. At his interview in July 2010 he did not know whether that son was in the Untied Kingdom or Spain: he had infrequent contact with him and had previously seen him "when he was three months old" that is to say about Christmas 2005. By the time of that interview another woman was described as his girlfriend. He said he was in a relationship with her and that she had been to Belgium when he was there. At the time of the hearing before me it was not said that that relationship still subsisted. I do not know who it was to whom the decision-maker granting the Claimant leave referred as his girlfriend, nor do I know whether at the date of that decision the Claimant had a relationship with anybody. It does not appear to be asserted that, at the date of the decision under challenge, the Claimant had an active relationship with anybody that is relevant to the determination of the present application.
13. Secondly, Mr Turner relies to a considerable extent on evidence relating to the Claimant's health. In relation to his original asylum application and appeal, he claimed that he was suffering from Post Traumatic Stress Disorder (PTSD). The Immigration Judge considered the evidence on that issue in some detail. There was a report from the Medical Foundation, which the judge concluded was "tepid" in its diagnosis of PTSD. In particular, although the examining doctor recorded the number of symptoms reported by the Claimant, he did not reach concluded views on them:

"I do not think" (wrote the judge) "Doctor Bale would use inexact language through carelessness and when he states that the appellant has "shown symptoms of PTSD (WHO ICD-10 F43.1)" he fails to make a specific finding. The doctor also states that the appellant has exhibited suicidal behaviour but fails to make any evaluation or assessment of that behaviour".

14. Before the Claimant left the United Kingdom for Belgium, there had been an incident in which he had found a tablet lying on the floor of a store and "decided to take an overdose", although there does not appear to have been any evidence of what the tablet was. He wrote a suicide note, called a friend, refused to go to hospital, slept, and woke up with projectile vomiting. Doctor Osinowo, a local staff grade psychiatrist, who saw him the following day, heard from him that he found the uncertainty of his status in the United Kingdom frustrating; he dreaded being returned to Iraq. He proposed to make a public exhibition of committing suicide. On the other hand, he denied having any further suicidal thoughts. Arrangements were made for him to have moral support from a friend and support from his social worker. The doctor summarised "current risks" as "no risk of harm to self or others".
15. There does not appear to have been any subsequent evidence from any medically-qualified person. On his return to the United Kingdom, the Claimant said at his interview that he had "Post Traumatic Stress Syndrome", that he was receiving medication for it. He had psychological problems only: "I don't hurt other people, just myself". The Claimant's then girlfriend phoned the Home Office to say that the Claimant "self harms due to anxiety and not out of attention seeking". She asked for that to be noted, which it was. There appears to be no further evidence, even of a non-professional nature, relating to the Claimant's health.
16. The third matter to record is the Claimant's conduct or suspected conduct. This is not a case in which the Secretary of State says that the Claimant's conduct should affect any grant of leave to him, but bearing in mind the assertions made on his behalf that the Secretary of State has delayed and mishandled the Claimant's case, it is worth recording that the Claimant failed to report after 13 December 2006 until contacting UKBA on 20 February 2007, but that contact did not include provision of his new address. He was an absconder until 25 November 2007. He may have complied with reporting conditions for a period in the winter of 2007-8, but in April 2008 he again contacted UKBA, said he had moved, and failed to provide an address. From 5 August 2009 onwards there are no concerns about his reporting, save in relation to the period of his absence in Belgium. On 24 November 2010 the Claimant was arrested on suspicion of having committed an offence of criminal damage. In the middle of the following month the local police force made enquiries about his immigration status. The charge was not proceeded with and it is clear it has no substantive relevance to the Claimant's position: the queries being raised may, however, do something to explain the passing around of the file and any confusion at that stage.

The "Legacy Scheme".

17. There was very little enforcement of negative immigration decisions in a considerable period leading up to 2006, and in that year the Secretary of State announced that the backlog of asylum cases, including unenforced decisions and cases in which no decision had been made, were going to be dealt with by the CRD, which was created for the purpose. The original idea was that the exercise would be concluded by July 2011, although there was clearly no specific undertaking that every case would be concluded within a five-year period. The CRD dealt with those who had made an asylum claim before 5 March 2007. It examined cases individually, considering whether the person should be removed, or should be granted some sort of leave. The rules and policies applied were those that were generally applicable: there was no different policy in relation to those considered by the CRD. In fact, the vast majority of decisions made by the CRD were to grant indefinite leave to remain.
18. The CRD was wound down in 2011 and outstanding cases were transferred to the CAAU. Both the CRD and the CAAU appear to have received a certain amount of advice on how to apply the relevant policies and rules. On 20 July 2011 there was an amendment to the guidance in chapter 53 of the Enforcement and Instruction Guidance, indicating that where removal was not considered appropriate under paragraph 395C of the Statement of Changes in Immigration Rules, the appropriate grounds of leave should not be ILR but should be three years. The grant of leave to the Claimant was, of course, after that date.
19. The policies and practices of the CRD and the CAAU have been examined in a number of judgments of this court, where the relevant documents are also set out: FH and others v SSHD [2007] EWHC 1571 (Admin) (Collins J); Hakemi and Others v SSHD [2012] EWHC 1967 (Admin) (Burton J), and most recently, Geraldo and others v SSHD [2013] EWHC 2763 (Admin) (King J). The last of those decisions was given after I heard argument in the present case. Mr Turner had applied for an adjournment of the present proceedings on the basis that the proceedings before King J amounted to a "lead case", the outcome of which could affect this case. Geraldo and others had not, however, been designated a "lead case", and I was not made aware of any arrangements to ensure that the proceedings before King J had been the subject of any selection or special administrative arrangement. I have delayed drafting this judgment until King J's judgment was available: if I had thought that that judgment contained anything which might assist the Claimant I should have restored the case to court for further argument, but I do not.
20. The Claimant's case is based firmly on the Legacy Scheme. He says that his case fell for consideration under the Legacy Scheme, that it was mishandled and subject to unjustifiable delay: it should have been considered before July 2011. If it had been considered before 2011, because of the guidance in force before then, there would have been a grant of indefinite leave to remain. In the circumstances, the Claimant argues that the grant of three years leave to remain defeats his legitimate expectation and that he still awaits a lawful decision under the Legacy Scheme.
21. The assertion that the Claimant's case fell within the Legacy Scheme is derived from the following facts. First, the Claimant did make an asylum application before 5 March 2007. Secondly, despite his lack of success in that claim, he was not removed from the United Kingdom: the unsuccessful attempt to remove him to Iraq clearly does not count as removal for these purposes. Thirdly, he received a letter saying that his case file had been transferred to CRD, and it is not said that CRD had any role except in administering the Legacy Scheme. Fourthly, his grant of leave was made by CAAU, which had inherited the work of CRD: for the same reason therefore, it is said that his grant of leave must have been made under the Legacy Scheme.
22. Mr Turner has researched the operation of the Legacy Scheme in great detail. The problem as I see it is that although his account of the scheme is very detailed, it is in important respects incomplete: it does not take account of overarching principles and guidance. In order to show that his case fell within the parameters of the scheme, the Claimant has to rely on a claim for asylum, made before 5 March 2007, and not concluded by a grant of leave or his removal.

What happens when a person leaves the United Kingdom?

23. The Secretary of State's clear, and published, position is that a person's asylum claim is concluded if he either requests his passport from the Secretary of State for the purposes of travel or if he leaves the United Kingdom. The former principle is currently found in paragraph 34J of the Immigration Rules; the effect of section 104 of the Nationality, Immigration and Asylum Act 2002 is that if a person leaves the United Kingdom whilst his appeal is pending the appeal is treated as abandoned save in a few exceptional cases. So far as guidance is concerned, the evidence before me includes a witness statement by Alistair Cairns, an official of the Secretary of State, exhibiting current guidance headed "Travel Abroad" including the following passage:

"Asylum claims will automatically be deemed to have been withdrawn when the Claimant's passport is sent back to them at the Claimant's request, for travel outside the CTA (Common Travel Area). Where the Claimant travels without first requesting the return of a passport for this purpose, the asylum, claim will normally be treated as withdrawn upon embarkation for any destination outside the UK, irrespective of the documentation produced, even if that destination is within the CTA".

24. Specifically in relation to the Legacy Scheme, the CRD and the CAAU, Mr Cairns exhibits an information sheet produced by the Immigration Law Practitioners Association (ILPA) dated 3 August 2011, containing basic information on the operation of the Legacy Scheme. The relevant passage is as follow:

"The Case Resolution Directorate (now closed) was set up to conclude all the legacy cases within five years. In September 2008, the Directorate confirmed that conclusion meant one of the following:

A grant of indefinite leave to remain

An enforced removal or voluntary departure

A closure of the case for one of five reasons

These five reasons for closing a case (that would count as a conclusion) were:

It was confirmed that the person had already left the country…."

25. A letter from the Chair of ILPA, dated 25 August 2011 to a Home Office official confirms ILPA's understanding, from September 2008 at least, that 'voluntary departure' was included within the notion of 'removed from the country' for the purposes of determining whether a case had been 'concluded".
26. That, as it seems to me, is a complete answer to the Claimant's submissions in relation to a legitimate expectation based on his asylum claim before 5 March 2007 and the existence of the Legacy Scheme. His own history, of which he was fully aware, meant that he could have no legitimate expectation of being considered under the Legacy Scheme after his departure to Belgium. A legitimate expectation cannot be derived from selective reading of published policies, and when the published policies are all read the position is clear: by leaving the United Kingdom the Claimant terminated any continuing effect of his pre-2007 asylum claim and indeed any other claims raised before his departure.
27. Any assertion now in relation to the Secretary of State's treatment of his claim and his case before the Claimant's departure from Belgium would have to be based on an assertion that the Secretary of State was obliged to consider his claim before his departure for Belgium; it is difficult to see precisely on what evidence such a claim would be based, but, in any event, it is hopelessly out of time. As Mr Barnes pointed out, no submissions objecting to any delay by the Secretary of State appear to have been made until after the decision presently under challenge.

Does the CRD letter make any difference?

28. It is clear that, following the correspondence with the Member of Parliament, the Claimant's representative was told that the Claimant's file had been sent to the CRD, "upon reviewing" it. It is to be noted that the letter did not make any reference to the general "Legacy Scheme" arrangements, did not give the hyperlink to the description of those arrangements, and did not describe the Claimant's case as being in a category of unresolved cases. It simply said that the file had been sent to the CRD.
29. Again, the position is that the Claimant knew his own history. The only expectation that he could legitimately draw from the sending of his file to the CRD was that if the CRD had no function other than within the Legacy Scheme, they would send it back; or, alternatively, that if they dealt with it, it would have to be outside the Legacy Scheme because of his departure to Belgium. Neither the letter saying that the file had been sent to CRD nor the eventual grant by CAAU could turn the Claimant's case into a legacy case or raise a legitimate expectation that it would be treated as one.
30. What appears to have happened is that after the file arrived at the CRD there was a delay, initially because of the Claimant's arrest; subsequently (and after the change of policy in relation to the length of grants of leave) it was dealt with by a person who did not trouble to inform himself of the full facts of the case. The grant of three years leave may or may not have been justified; but I cannot see that there is any ground for saying that a grant of three years leave was not more than enough to meet the circumstances of the Claimant's case. It removed any threat of his removal; it responded to the assertions made about family life and illness; it was the appropriate grant at the time it was made; and there was no asylum claim by the Claimant before 5 March 2007 that was "unresolved" or "unconcluded".

Conclusions

31. In these circumstances is does not appear to me that it is necessary to consider in very great detail the other issues raised by Mr Turner. He is entirely unable to show that the Claimant would have had a better outcome than he did have, if the Claimant's case had been properly dealt with by an officer who was fully aware of the Claimant's history. It seems to me that he can make his case only by ignoring either the Claimant's departure to Belgium, or the policies in relation to those who voluntarily depart, or both. For the avoidance of doubt, however, I should record two matters. First, the decision of King J in Geraldo and Others v SSHD clearly affords no assistance at all to the Claimant. Secondly, as I understand the position at the moment, there is no family relationship upon which the Claimant relies in order to found an Article 8 claim. The medical evidence is now very out of date and does not appear to point to circumstances likely to make the Claimant's removal from the United Kingdom unlawful. Whether he can in fact be returned to Iraq is a matter which will no doubt receive consideration on the expiry, in a little under twelve months, of the leave that he has been granted.
32. For the foregoing reasons I dismiss this application for judicial review.