QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| HAMZEH &OTHERS
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Ms Julie Anderson & Ms Rosemary Davidson (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 26th & 27th November 2013 & 13th December 2013
Crown Copyright ©
The Honourable Mrs Justice Simler DBE:
i) There was an unlawful failure (at the time of the decisions and/or on an ongoing basis) to conclude these cases.
ii) If not, the refusal letters in these cases cannot be lawful decisions in circumstances where there has been no consideration of removability and/or length of residence and delay.
iii) The Defendant has failed to seek to document or remove the Claimants or take any steps to assist them home resulting in a state of "limbo" which is unlawful and in breach of their Article 8 rights.
i) Was there an unlawful failure (or is there any ongoing failure) to conclude these cases by removal or grant of leave?
ii) Has there been a lawful legacy decision in these cases or does the fact that the Claimants claim to be 'irremovable' entitle them to leave under paragraph 395C or 353B of the Immigration Rules, or any other rule of law or policy?
iii) Has the Defendant's failure to remove (or to take steps to re-document etc) the Claimants led to them being in a state of limbo that constitutes a disproportionate interference with their rights to family or private life under Article 8 of the Convention?
iv) Was there a failure to give adequate reasons and/or any legal obligation to state specifically that 395C and/or chapter 53 EIG is being applied and/or to have regard to materially relevant considerations, namely length of residence and/or removability?
The Legacy Programme
"39. The Case Resolution Programme or the Legacy Programme, was instigated by the government in July 2006 to deal with a vast backlog of unresolved asylum claims, this is to say for the most part failed asylum claims, some going back many years in which the unsuccessful claimant had neither been removed nor a decision made to grant him or her leave to remain in the UK on some basis other than the claimed refugee statue either within the Immigration Rules or outside the Rules, and with many of whom the Home Office had lost contact. One of the problems was that as at July 2006 there were in the region of 400-450,000 electronic and paper records concerning such claims within the Home Office which had not been opened or reviewed (and indeed once the programme was under way further records came to be included, ultimately reaching a total caseload of some 500,000 – see the report of the Parliamentary Home Affairs Select Committee for April-July 2011) but which were recognised to be 'riddled with duplication and errors and cases of individuals who have since died or left the country or become EU citizens', (to quote the statement of the then Home Secretary Dr John Reid MP to Parliament in July 2006). As Mr Neil Forshaw told me, until the exercise of going through the vast archive of assorted records was undertaken to identify how many cases remained to be dealt with, the true nature of the task undertaken under the programme could not be known.
40.The programme was an operational programme only. That is to say it was a programme designed to deal with the backlog, with its own internal priorities and procedures, but it was always made clear that the programme did not involve any kind of amnesty and that cases handled within the programme would have applied to them the same generally prevailing law and policy which applied to all other immigration and asylum cases, being handled within other units elsewhere within the UKBA. I say at once that none of the evidence before me supports the proposition that there was a discrete 'legacy policy' different from that applied to other, for example, failed asylum cases not within the programme, where consideration was being given to the grant of leave outside the Rules (on this aspect see further the decision of Burton J in Hakemi and Others  EWHC 1967 (Admin)). In other words the programme did not purport to create any new substantive rights or new basis for the grant of leave.
41.To handle and work through the cases within it, the Casework Resolution Directorate (CRD) was established to review and make a decision (that is whether to remove or grant leave) in each of the cases over time. It was always recognised that this would take a number of years.
42.On any view of the contemporaneous material, the aim was to clear the backlog within five years, although whether the government ever undertook more than such an aspirational objective, and whether in any event a specific cut off date was contemplated, is at the heart of the proceedings before me. I deal with this issue and the relevant material relied on by the Claimants below.
43.The programme started work on selected cases on 1 November 2006. The CRD was created on 1 April 2007. Case records were allocated to case owners from December 2007. The programme dealt only with cases where the initial asylum claim was made prior to 5 March 2007. Applications made after that date were to be dealt with by other units within the UKBA under the New Asylum Model (NAM) aiming to decide cases much more speedily than before.
44.The essential organisational features of the programme were described in the briefing information paper placed in the House of Commons library (entitled Asylum: Legacy Cases) dated 10 August 2010, in these terms (any emphasis is the emphasis of this court):
- Information about the legacy programme is given on the UKBA website – this explains that legacy cases are those asylum applications made before 5 March 2007 which have not been concluded 'either because of errors in recording information or because there is still some action we need to take'. These include:
outstanding asylum applications;
asylum applications which have been refused but there is no indication that the applicant has left the UK;
in time applications for further leave to remain from applicants previously granted a temporary form of status such as Discretionary leave
'people cannot apply to be considered under the programme' as it is only for cases that have been in the system for a very long time already.
- The cases are being handled end to end by about 950 caseworkers in 40 regional teams. Each case is allocated to a case worker who is responsible for it until it is 'concluded (whether that is by granting leave or ensuring removal');
- 'once a case has been selected for consideration', the case worker may send a questionnaire to the individual with a deadline for its return. Applicants will only be sent a questionnaire if the case worker thinks they need more up to date information on the applicant's case before they review it. From 4 June 2008 CRD has notified individuals and their legal representatives when one of its teams begins actively considering their case, but there are exclusions from this policy;… all of the cases falling within the CRD caseload are believed to have been allocated to a CRD team by now.
- The UKBA website contains the following guidance for individuals wishing to contact CRD staff:
In all cases we would prefer to receive correspondence only if further or supporting evidence is to be provided. Enquiries about the progress of a case may slow down the consideration progress.
45.The CRD processed cases according to four published priorities (cases in which the individual concerned might pose a risk to the public; those who were in receipt of public support; those cases in which it was likely a decision would be made to grant leave; cases where the individual could easily be removed from the UK) but retained a discretion to deal with exceptional or compassionate cases out of turn.
46.The programme inevitably, given the size of the backlog, led to further delays in dealing in particular with those who had outstanding 'further submissions' but the process instigated by the Programme, including the adoption of the stated priorities, was nonetheless upheld as lawful by Collins J in FH & Others v SSHD EWHC 1571 (Admin). That decision considered the historic delays, but had regard to the sheer volume and complexity of the task being undertaken, and the wide discretion given to the Secretary of State in administering applications for leave to remain, in answering in the affirmative that which the court regarded as the critical question namely 'whether the manner in which the backlog is being dealt with is in all the circumstances as reasonable and fair' (see judgment at paragraph 21).
47.It is to be noted that the delays considered in FH (i) were in most cases a delay in decision making on further submissions ('… the majority of these claims involve applications which are said to amount to fresh claims following the rejection both by the Defendant and the appellate authority of the Claimant's initial asylum application') (paragraph 12), (ii) varied between 2 to 5 years, and that the court there held that although such delays were not to be condoned, 'none were so excessive as to be for that reason along unlawful' (paragraph 21).
Decision to grant leave inside the Rules and outside the Rules
48.Not all cases within the programme necessarily involved a fresh claim submission of the kind with which FH was concerned (which would involve consideration by the case worker of the fresh claims and paragraph 353 of the Immigration Rules), and as Eady J pointed out when himself considering the workings of the legacy programme in Baser v SSHD  EWHC 3620 (Admin), at para 15, the mere fact that an individual was being considered under the programme did not entail an immigration decision since 'that would only arise if a fresh application (for leave to remain) had to be considered'. In some cases consideration under the programme would simply lead to a confirmation, where no further applications or submissions had been received, that the applicant in question still had no basis for leave to be granted and should be removed. The case worker did still however, even if there were no application for leave to remain within the Rules, on the basis of for example a fresh claim have to consider whether or not to make a decision to remove the individual.
49.This tension between a decision whether or not to grant leave within the Rules and if not, whether to grant leave outside the Rules in the exercise of the defendant's general discretion under section 4(1) of the Immigration Act 1971, has been emphasised throughout the Defendant's evidence before me in support of the submission that the CRD was concerned with both types of decision, albeit the majority, in so far as a grant were made, were a decision outside the Rules. I would accept that evidence. Again to quote the House of Commons Paper:
'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… where applicants do not fit any of the specific criteria for being granted leave to remain, UKBA workers must also consider whether their case falls within any of the general considerations which would prevent removal.'
"60. As already indicated by reference to the Lin Homer letters, the Case Resolution Programme was monitored by a parliamentary select committee (HASC). B the time the CRD was would up in 2011, HASC in its report of April – July 2011 (published November 2011) noted a final position of '500,500' records of which 479,000 cases were said to be 'concluded' of which 172,000 had been granted 'leave to remain', 37,500 had been removed, and 268,000 were 'others' which included supplicate records, errors or cases in the 'controlled archive' which then stood at 98,000 to which 500 would be added if not traced within 6 months. 3,000 stood to be granted subject to security checks.
61.The then 18,000 legacy cases then identified as still outstanding, together with the controlled archive, were transferred to the CAAU in Liverpool to be resolved by that unit. Mr Forshaw's evidence (second w/s paragraph 20) was that the arrangements for transfer were made well before July 2011 and the CRD closed in March 2011. It is clear that the evidence to the HASC from the Home Office (in particular Jonathan Sedgwick, Acting Chief Executive of the UKBA on 13 September 2011), was that all of these 'non concluded cases' were cases which had been 'reviewed' under the programme and a decision had been made, but for one reason or another removal had still to be completed with the explanation being ongoing litigation, impending prosecution, incomplete legal or criminal proceedings, non compliance and offenders from 'difficult to remove countries' (see HASC report at para 15). In similar vein the response of the government to the HASC's 9th report of session 2010-12 ('On 31 March 2011 the UK Border Agency had reviewed all cases in the asylum backlog, ahead of schedule').
62..In fact, not long after, it emerged that this was an inaccurate statement to Parliament and there were a number of cases which had not been reviewed at all, albeit they were available to be reviewed. How many unresolved cases fell into this category is by no means clear. In his highly critical report for the quarter ending July 2012, the Independent Chief Inspector of Borders and Immigration, John Vine, spoke of 9,393 cases as having been identified by the CAAU as 'where reviews had not been carried out'. However Miss Anderson makes the point that this has been shown to be 'loose language' (referring to the evidence drawn to my attention of Mark McEvoy, Assistant Director of the CAAU, in Hakemi). She herself also drew my attention to the evidence of ILPA to the Home Affairs Committee that the unreviewed cases may be 'hundreds possibly more'.
63.The critical point to be made at this stage however is that this has been acknowledged by the defendant for some time. To quote Mr Forshaw at para 15 (first w/s):
'In evidence to HASC on 13 September 2011 it was stated that as at that date there were still a number of cases which were not concluded (i.e. leave granted or actually removed). It is recognised however that at this time it was stated that all the legacy cases had been reviewed. This was a regrettable inaccuracy for which UKBA has accounted to Parliament. UKBA now recognises that there are cases that were not fully reviewed by CRD but should have been, and cases that were placed in the controlled archive (and therefore not fully reviewed by CRD) even though some contact had been maintained.'"
The legal and policy framework
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 UK spent 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 UK is no longer appropriate."
i) it makes use of the factors set out in 395C/353B, giving more detailed guidance under each listed factor.
ii) It expressly states that the list is not exhaustive.
iii) Consideration of relevant factors needs to be taken as a whole rather than individually – referred to by the Defendant as a holistic consideration.
iv) Discretion not to remove on the basis of exceptional circumstances will not be exercised on the basis of one factor alone.
"53.1.1 Exceptional circumstances – Relevant Factors
Relevant factors are set out below, but this list is not exhaustive.
The consideration of relevant factors needs to be taken as a whole rather than individually. When determining whether or not exceptional circumstances exist, considerations of the relevant factors in 353B needs to be taken as a whole. Discretion not to remove on the basis of exceptional circumstances will not be exercised on the basis of one factor alone.
i) Character, conduct and association including any previous criminal record and the nature of any offence of which the applicant 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
Where there is evidence of an attempt by the individual to delay or frustrate the decision-making process, frustrate removal, or otherwise not comply with any requirements imposed upon them, then this will weigh against the individual.
Caseworkers must also take account of:
·Evidence of deception practiced at any stage in process;
·Failure to attend interviews as requested;
·Failure to supply information as requested (eg for re-documentation);
·Failure to comply with reporting conditions;
·Whether they have worked illegally
·Any other type of fraud or deception, such as benefit fraud or NHS debt;
·An individual's lawful employment history and how they have supported themselves and/or their family;
·A sustained history of compliance with every requirement UKBA has made of them. Including providing full information in their application, attending interviews, compliance with reporting requirements.
Caseworkers must assess all evidence of compliance and non-compliance in the round, but repeated non-compliance and/or lengthy periods of absconding will generally mean that an individual cannot benefit from exceptional circumstances, unless there are strong countervailing reasons in their favour.
iii) Length of time in the UK accrued for reasons beyond the migrant's control after their human rights or asylum claim has been submitted or refused;
The length of residence in the UK is a factor to be considered where residence has been accrued by an unreasonable delay which is not attributable to the migrant. Periods of residence which are caused by actions of non-compliance attributable to the migrant will not count in the migrant's favour. More weight should be attached to the length of time a child has spent in the UK compared to an adult.
Provided that the factors outlines in "Character" or "Compliance" do not weigh against the individual then caseworkers should also consider where there have been significant delay by UKBA, not attributable to the migrant, in deciding a valid application for leave to remain on asylum or human rights grounds or where there are reasons beyond the individual's control why they could not leave the UK after their application was refused. For example:
'Family' cases where delay by UKBA, or factors preventing departure, have 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 the factors outlined in "Character" and "Compliance" do not weight against the individual, family cases may be also be considered exceptionally on grounds of delay where the dependent child has lived in the UK for more than 3 years or more whilst under the age of 18.
Any other case where the length of delay by UKBA in deciding the application, or where there were factors preventing departure, the case worker following an individual assessment of the prospect of enforcing removal and where the factors outlined in "Character" and "Compliance" do not weight against the individual, concludes that the person will have been in the UK for more than 6 years.
53.1.2 Grants of Leave to Remain in Exceptional Circumstances
If having considered the factors set out in the guidance in 53.1.1 above removal is no longer considered appropriate then Discretionary Leave to Remain should be granted…
Challenge to principles established by case-law in Legacy cases
"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."
"The aim in dealing with the legacy cases is to review every case that is capable of being reviewed and to conclude cases wherever possible, through either a grant of leave or removal from the UK. … As such, a case that previously fell within the cohort of legacy cases, would be regarded as concluded at the point an individual chose to voluntarily depart from the United Kingdom (as long as they did leave)" ..
The legal consequences of being "irremovable"
Issue 1: Was there an unlawful failure (or is there any ongoing failure) to conclude these cases by removal or grant of leave?
Issue 2: Has there been a lawful legacy decision in these cases or does the fact that the Claimants claim to be 'irremovable' entitle them to leave under paragraph 395C or 353B of the Immigration Rules, or any other rule of law or policy?
Issue 3: Has the Defendant's failure to remove (or to take steps to re-document etc) the Claimants led to them being in a state of limbo that constitutes a disproportionate interference with their rights to family or private life under Article 8 of the Convention?
"19. I reject the submission that because the Secretary of State was at the date of the decision of the Upper Tribunal unable to enforce the return of the Appellant to Saudi Arabia, article 8 required her to grant him leave to remain. Article 8 does not confer a right to reside in the country of one's choice. The Appellant chooses to seek to reside in this country, but was not compelled to come here by any threat of persecution. Mr Jacobs accepted that if the Appellant could be returned, he could have no article 8 claim to remain here. That is doubtless because there was no evidence before the Upper Tribunal that he had established any personal or family life here. ….
22. I would dismiss this appeal on the ground that the Immigration Judge was entitled to conclude that at the date of his decision Article 8 did not require the Secretary of State to grant the Appellant leave to remain while seeking to secure his return to Saudi Arabia. If Article 8 was engaged, there could be only one answer to the balancing exercise required by Article 8.2, namely that the Secretary of State's refusal to grant leave to remain was justified by the need to maintain a system of sensible immigration control.
29. My second observation concerns the length of time for such inquiries before the "limbo" argument could conceivably come into play. I consider that, in this context, some assistance can be gained from the decisions concerning the legality of the detention of persons the Secretary of State seeks to deport while efforts are made to establish their nationality or to obtain the requisite documentation of their nationality. One of the factors which has been held to affect the period of detention which is lawful is whether the detained person has co-operated with attempts to obtain documentation: see, for example, R (MH) v SSHD  EWCA Civ 1112 at  and [68(iii)], per Richards LJ. Similarly, the time after which the "limbo" argument can come into play may depend on the attitude of the individual concerned to efforts to establish his or her nationality or to obtain documentation."
Issue 4: Was there a failure to give adequate reasons and/or any legal obligation to state specifically that 395C and/or chapter 53 EIG is being applied and/or to have regard to materially relevant considerations, namely length of residence and/or removability?
"However, a holistic assessment is still required. It will not be appropriate to grant leave on the sole basis that it is not currently possible to enforce return to the applicant's country of origin."
"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  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."
Mr Hamzeh's claim
Mr Abdullahi's claim
Mr Nejad's claim
Mr Jaffar's claim
Mr Ahmadi's claim