England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

		Manchester Civil Justice Centre
		18/12/2013

The Honourable Mr Justice Blake:

1. This renewed application for permission to apply for judicial review was heard on 18 December 2013. The claim form had been lodged on 5 March 2012. Permission to bring judicial review proceedings was refused on 4 September 2012 and the renewed application was thereafter adjourned from time to time pending judicial decisions on similar cases.
2. There have been many developments in the case law since the claim form was first drafted. At the time of the hearing the most recent was the decision of King J in R ota Geraldo v SSHD [2013] EWHC 2763 (Admin) 6 September 2013. This decision on a rolled-up permission hearing established or affirmed the following legal principles:-

i) A decision relating further leave to remain in the United Kingdom should take into account and apply the policies in existence at the time of the decision rather than the policies in force when the application was first made.

ii) There was no expectation that decisions made by the Case Resolution Directorate of 'legacy cases' where asylum claims made before 5 March 2007 were unresolved would be decided by 19 July 2011, when the previous practice of the Home Office changed.

iii) There was no legitimate expectation, conspicuous unfairness or any other basis of challenge available to the claimants in this group of cases that they should have been granted ILR as opposed to 3 years DLR where:

a) In Geraldo's case an application made in October 2010 was decided in March 2012, a period of under 18 months, seven of which fell after the July 2011 changes;

b) In Aroun's case, representations made in June 2009 led to a decision in May 2012, a period of under three years;

c) In Iqbal's case representations made following his arrest as an overstayer led to an immigration decision in May 2012, again a period under two years.

iv) In considering a challenge to the legality of the decision based on the passage of time, it was not sufficient that there had been general maladministration in the defendant's department, something more specific to the individual claimant would be needed, so as to result in maladministration being causative of injustice to the claimant on a kind that would entitled this court to intervene.

3. A further skeleton argument was lodged by the claimant on 15 December 2013 seeking to address this decision and distinguish it; an application was also made for the matter to be yet further adjourned pending an application for permission to appeal to the Court of Appeal in Geraldo. I refused this application and further indicated that insofar as this claim continued to be advanced on grounds that were considered and rejected in Geraldo, I did not consider that arguable grounds with reasonable prospects of success had been made out. Since the hearing I have had the advantage of reading the decisions of Ouseley J in Jethu [2014] EWHC 605 (Admin) and Simler J in Hamzeh [2013] 4113 (Admin) both affirming the principles of Geraldo.
4. However, in the course of submissions, a point of potential distinction between the claimants in the Geraldo group did emerge, that led me to conclude that in respect of that point, the threshold test for permission had been met, but as the matter had not been clearly articulated in the Claimant's grounds and amended skeleton argument, I acceded to Mr Karim's request that the point be given further consideration by the defendant and that directions were accordingly given for further representations in writing to be made by 29 January 2014 by the defendant and a reply thereto to be made by 12 February 2014.
5. In the event, time for the defendant's representations was by consent extended and they were made on 8 February 2014. No representations were received by the claimant until 8 April 2014. No explanation has been supplied to me by the claimant's representatives for the very late submissions made and they could have had no complaint if I had decided the mater by the end of February 2014 as originally envisaged without the benefit of their representations.
6. The claimant arrived in the UK from Afghanistan on 23 June 2006 and claimed asylum. It is accept that he has a date of birth of 10 May 1992 and so would have been 14 at the time of his claim. His asylum claim was promptly rejected on 18 August 2006, but in accordance with the Secretary of State's policy with respect to unaccompanied child asylum seekers he was granted discretionary leave to remain to 18 August 2009. There was no appeal against the statutory asylum decision.
7. On 14 August 2009, an application for an extension of DLR was made on his behalf by his then representatives. The claimant was then 17 years 3 months, he done very well in his education in the UK and was then studying A levels with a view to going on to university. The representations repeated his contention that he had a well founded fear of persecution/other protection grounds in Afghanistan, but also relied on his residence, private life and degree of integration in the United Kingdom.
8. On 4 May 2010, a week before the claimant's 18^th birthday, there was a response to this application by the defendant. The letter was from the Case Resolution Directorate of the Home Office, and explained that the application under consideration by this directorate for decision as a backlog case. The aim was to resolve these cases by either removing the claimant or granting exceptional leave in accordance with existing law and policy, details of which were drawn to the claimant's attention on the home office web site for asylum/older cases. The letter asked for current photographs and other documents of identity or current employment and marital status. The photographs requested were promptly submitted on 21 May. On 3 November 2011 a letter in identical terms was sent to the claimant again asking for passport photographs. By this stage he was over 18 and had been resident in the UK for 4 years and 4 months. Again the photographs requested were sent. In February 2011 the claimant was informed that he would be interviewed on his application on 4 March 2011. On 31 July 2011 the claimant received a letter from the Case Assurance and Audit Unit to which his case had been transferred and it was said that it was receiving consideration and for a third time a request was made to supply photographs and further photographs were supplied on 19 August 2011. On 6 December 2011 the claimant was granted 3 years Discretionary Leave to Remain until December 2014.
9. The point on which I invited further submissions from the defendant was as follows. The conduct of the UKBA in asking for photographs of the claimant on three occasions over a 14 month period between May 2010 and July 2011 seemed inexplicable save for an inference of maladministration: either photographs previously supplied had been lost or someone else in with conduct of the case was making a repeated request not realising that the material sought had already been supplied. This was the kind of maladministration that had been noted the Chief Inspector (Mr Vine) in his critical report of departmental activity in the relevant period. If there was maladministration it had specific impact on the claimant's individual case. The final decision was made in December 2011 five months after the change in policy. If a decision had been made before the end of June 2011 it was probable that it would have resulted in the grant of indefinite leave to remain applying the criteria as they then stood. The delay between May 2010 and November was particularly important as it was a period of six months. If the claimant had been called for interview in August 2010 three months after he had supplied the photographs it seemed highly probable that a decision would have been made within three months thereafter (i.e. November 2010). This was not a complicated case: there was no absconding, criminal conduct, or non compliance with conditions of entry. By contrast with the claimants in Geraldo, this claimant was an unaccompanied minor who had resided lawfully in the UK for nearly five and a half years as of November 2011 when his extension application had been outstanding for 15 months who would have had a stronger claim to more favourable treatment with respect to both priority of consideration, continuity of residence and the effect of any administrative delay on such a claim to remain. It was clearly regarded by the defendant as a legacy asylum case, and a case where the claimant's removal when he reached 18 (10 May 2010) was not considered appropriate at any time from May 2010 to December 2011. In the circumstances it was arguable that maladministration in an application for extended stay submitted by an unaccompanied child whose best interests required reasonable prompt decision making as to his educational future had caused his case to be decided after a change of policy had removed the basis when he would probably have received indefinite leave to remain as had 97% of those whose cases had been decided under the legacy programme where removal was not considered appropriate.
10. The supplementary submissions received by the defendant repeat many of the points made previously in the AOS and decision letters; this was not the purpose of the opportunity to make written submissions. Three particular points are made relevant to the challenge as it emerged at the oral hearing:

i) this was never a legacy case in the first place applying the terms of the policy announced in July 2006;

ii) there is no reason to believe that the claimant's photographs sent in May 2010 were lost and therefore no question of maladministration.;

iii) there is no prejudice as the claimant has merely enjoyed the benefit of a longer period of leave to remain by any maladministration that did affect his case.

11. In my judgment there is an arguable challenge to the particular decision refusing the claimant indefinite leave to remain, notwithstanding the written submissions received.
12. I accept that it might have been argued that there was no obligation to have treated this case as a legacy case where the initial asylum decision was considered in two months, but the May 2010 unambiguously states that it will be treated as a legacy case and the criteria for doing so are set out. This was doubtless why Mr Karim did not argue that it was not a legacy case and so the revival of this point is surprising. It is not suggested that the May 2010 letter was sent without authority or some sort or some exceptional reason is given why it should not bind the public authority on whose behalf it was sent, if a decision was made to treat it as such it should properly be treated as such.
13. The defendant's response to the maladministration contention is equally unconvincing. If the photographs were not lost no explanation is given why the request for them was repeated six months later. The claimant's case does not depend on proving that the defendant lost them; it would equally be maladministration if the process was delayed by six months because an unnecessary duplicate request for information already in the possession of the department was being made.
14. Finally, the defendant's submissions on prejudice miss the point that the particular period of delay covers the end of the old policy and the beginnings of the new and it is the loss of the ability to have a decision made under the old policy that is the prejudice. Like King J at [121] I consider it certainly arguable that a legacy decision not to remove an applicant made before July 2011 would have resulted in the grant of ILR absent some countervailing factor that might explain the 3% of cases that did not have that result. No such factors are suggested to be present in this case whilst there is no general obligation to explain why a particular period of leave has been granted the failure to explain a decision that is markedly out of line with similar decisions on the point, may enable the court to draw certain inferences.
15. For these reasons, I consider the ground of challenge set out at [9] is arguable and I grant permission. This is a decision that rests on its individual facts and is not a generic challenge about the legitimate expectation of any person who made a pre-2011 application that was treated as a legacy case and who has been given something less than indefinite leave to remain. I recognise that legacy challenges have generally not been successful on substantive determination and the grant of permission is not administratively convenient given the delays that have occurred since the claim was first lodged and the six weeks delay by the claimant in responding to the defendant's representations. I further recognise that the claimant's current leave expires in eighth months times, I would be unenthusiastic about a course that delays a final decision on where his future lies, but none of these concerns are a sufficient reason to refuse permission.
16. Having embarked on the somewhat unusual course of a reserved judgment on a permission application, I expect the parties to apply their minds promptly to consequential directions and endeavour to agree them to ensure speedy final determination of this claim. In particular they should consider:

i) Does the defendant intend to file evidence and lodge detailed grounds and if so within what timetable?

Is this a case where discretionary transfer to the Upper Tribunal is possible or desirable, or can the final hearing come on more speedily in the Manchester Civil Justice