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
		8 May 2014

Philip Mott QC :

1. On 10 January 2012 the Claimant was sent a letter from the UK Border Agency telling him that, subject to final security checks, he would be granted leave to remain in the UK in line with current Immigration Rules. A similar letter was sent on the same day to his MP. Despite this, on 7 September 2012 he was refused leave to remain. Not surprisingly, on 20 December 2012 he was given permission to apply for judicial review of that decision. The Defendant sensibly agreed to withdraw the decision and issue a new one. That new decision came on 12 June 2013 and granted the Claimant limited leave to remain for 30 months until 12 December 2015.
2. Under the terms of a consent order the Claimant was allowed to proceed with his claim and amend his grounds for judicial review. He did so, though a little later than allowed for in the consent order. He challenged the fresh decision on the basis that it should have granted him indefinite leave to remain, rather than limited leave.
3. The basis of the new challenge is an interpretation of what is known as the "legacy programme" which is inconsistent with that in R (Geraldo) v SSHD [2013] EWHC 2763 (Admin) and a number of cases since which have followed it. Ms Braganza, for the Claimant, frankly accepted that her arguments could only succeed if Geraldo was wrongly decided.

Application to adjourn

4. On 17 March 2014 the Claimant's solicitors applied for the hearing to be adjourned on the basis that an application for permission to appeal the decision in Geraldo is listed for oral argument in the Court of Appeal on 1 April 2014. I refused that application on paper, but it was renewed before me at the outset of this hearing.
5. In relation to Geraldo permission to appeal has been refused by the judge at first instance, and also on paper by a single judge of the Court of Appeal. The hearing on 1 April is therefore a renewed application to the full court. Even if it is successful, the grant of permission gives no clue as to the final outcome and the full hearing is likely to be many months away.
6. My attention was drawn to the case of Kazi v SSHD in which permission to appeal has been granted by McCombe LJ. But that is an appeal against a refusal on paper with no right to renew to an oral hearing in this court. The reasons make clear that the single judge would have liked to have an oral hearing with attendance by the Respondent, but could not order that. He states specifically that he is far from satisfied that the appeal has real prospects of success.
7. My attention was also drawn to the case of BA (Ethiopia) in which permission to appeal has also been granted, but no details of that case were provided beyond what was set out in the order of Elias LJ of 10 February 2014.
8. The arguments put forward in this case are not new. They have been raised in a large number of applications which have come before me, either on paper or on oral renewal. The total number of similar cases in this court must run into hundreds. If every one were to be stayed pending a possible appeal in Geraldo, a logjam would be caused. The Court of Appeal has given guidance on such stays in AB (Sudan) v SSHD [2013] EWCA Civ 921. In general they should not be granted, only when it is necessary in the interests of justice.
9. In this case a stay is not required in the interests of justice. First, the rejection of the Claimant's case in reliance on Geraldo would not affect his immediate status. He has the right to remain in the UK until December 2015. Secondly, the case was listed for hearing by the time the application was first made. An adjournment would simply leave a hole in the list, without time for it to be filled. Thirdly, the Claimant could make realistic concessions based on Geraldo and subsequent cases without losing the ability to pursue an appeal if Geraldo were overturned on appeal.
10. Accordingly I refused the Claimant's application for an adjournment.

Application to amend the claim

11. Ms Braganza next applied for permission to add a ground alleging that the grant of leave, even if limited, should have been for 3 years rather than 30 months. This is because the letter of 10 January 2012 was sent at a time when the policy was to grant 3 years discretionary leave, and this was only changed to 30 months on 9 July 2012.
12. Whilst arguable, this ground was entirely new. It had not been raised in any correspondence, did not appear in the original or amended claim, and was not mentioned in the Claimant's skeleton argument. In effect it seems to have arisen from exchanges during consideration of the first application to adjourn. In my judgment this was far too late to complain of something which was quite apparent from the information known at the time of the June 2013 decision, and to raise it almost 9 months later should not be permitted.
13. Accordingly, I refused the Claimant's application to amend his claim.

Factual background

14. The Claimant was born in August 1984 in Palestine. He left there at the age of 9 and travelled via Egypt and Turkey to Italy, where he stayed for 5 years. In 2001 he arrived in the UK, at the age of 17, as an unaccompanied minor. He has been here ever since.
15. On 19 July 2001 he claimed asylum. This was refused on 7 March 2003, and he did not appeal. Thereafter he came to the attention of the police in 2004 for an alleged assault; he failed to report to police bail and was convicted of absconding, having spent 4 or 5 months detained on remand; at some point he was also convicted of possession of cannabis. Nothing else seems to be known until 23 August 2010, when he was sent a standard form letter telling him that his case was in the legacy programme and asking for documents. At that point he had no outstanding applications, but his case was unresolved in the sense that he had not left or been removed from the UK since he became appeal rights exhausted in 2003.
16. The delay following this letter in August 2010 was not great by legacy standards. It was less than 17 months until he was sent the letters of 10 January 2012 indicating that he would be granted leave. The first decision came just over two years after August 2010, although it was unfavourable. The second decision came about 9 months later.

The Claimant's submissions

17. Ms Braganza set out the Claimant's grounds for challenge under 15 headings in her skeleton argument. The root of all was the premise that the legacy programme contained a commitment to 'conclude' each case, and that 'conclusion' meant either removal or the grant of indefinite leave to remain. Without doing injustice to her arguments, the 15 grounds can be summarised under four broad heads as follows:

i) There was a legitimate expectation that the Claimant's case would be dealt with by 19 July 2011, and that if any leave to remain was granted it would be indefinite leave. That expectation arose from statements to Parliament by Dr John Reid, then Secretary of State for the Home Department; from material emanating from the UKBA generally, or the Case Resolution Directorate specifically; and from the contents of the Report by John Vine, the Independent Chief Inspector of Borders and Immigration, published in November 2012. Ms Braganza also relied on evidence set out in the judgment of Burton J in Hakemi v SSHD [2012] EWHC 1967 (Admin).

ii) The Claimant could rely on historic injustice, in that his claim had been subject to delay and mishandled. The same matters set out above gave rise to an injustice in that the case was not resolved by July 2011, up to which time the Claimant would have been granted indefinite leave to remain. Ms Braganza further relied on the letters of 10 January 2012 and the flawed first decision of 7 September 2012. The Claimant had to wait for 17 months from the assurance in the letters to the grant of leave to remain, and in the meantime had the stress of a decision letter refusing him leave.

iii) The Defendant had failed to give any reasons for not granting indefinite leave to remain, and thereby to show that consideration had been given to the undoubted residual discretion to make such a grant.

iv) In any event, the decision was unfair and irrational because the Claimant ought to have been granted indefinite leave to remain.

The law on legacy

18. Since Geraldo there have been a string of cases following its findings, and building on them. Significant amongst these are Hamzeh v SSHD [2013] EWHC 4113 (Admin), Simler J; Mohammed v SSHD [2014] EWHC 98 (Admin), Lewis J; Nzangane v SSHD [2014] EWHC 555 (Admin), Green J; and Omokayode v SSHD [2014] EWHC 594 (Admin), Andrews J. The latest authority is from the Lead Judge of the Administrative Court, Ouseley J, in Jaku, Prenga & Khaled v SSHD [2014] EWHC 605 (Admin).
19. It may sound presumptuous for a Deputy Judge to add his agreement with such decisions, but it is impossible to sit with any frequency in this jurisdiction, as I have, without following the development of legacy arguments as they are put forward by advocates and dealt with by other judges, and forming a personal view. In my judgment Geraldo and the other cases cited above are clearly right, and I follow them not only in the interests of judicial comity.
20. In view of the concession by Ms Braganza that her arguments can only succeed if Geraldo is wrongly decided (or at least if I were to decline to follow it), it is unnecessary for me to set out at any length the principles from those cases. I adopt, for convenience, the summary in Ouseley J's most recent judgment, in which Ms Braganza appeared for one of the Claimants.
21. As a result, this claim must fail for the following reasons:

i) No clear and unambiguous promise can be derived from the material relied upon so as to give rise to a legitimate expectation, save for an expectation that the Claimant's case would be considered under the law and policy as it stood at the time of decision. This was the general law and policy, there being no special rules applying to legacy cases. The Claimant's case has been properly decided on this basis.

ii) The only specific promise in this case was in the letters of 10 January 2012 to grant leave in line with current Immigration Rules, subject to final security checks. Although the initial decision was not to grant leave, this has now been remedied, and the leave granted is in line with the Rules as they existed at the date of both decisions, in September 2012 and in June 2013.

iii) There is nothing giving rise to an historic injustice, arising from an unlawful decision or a failure to carry out a duty. The delay in this case is not great by legacy standards, and certainly not enough to amount to unlawful conduct. The flawed first decision has been remedied without leaving any historic injustice. It is not arguable that the need for a second decision makes it unreasonable not to grant indefinite leave to remain.

iv) There is no requirement to give reasons for not exercising a discretion reserved for exceptional cases. To adopt the words of Green J in Nzangane, the facts identified by the Claimant here do not scratch the surface of exceptionality.

v) As a result, there is nothing unfair or irrational about granting only limited leave to remain.

22. In the end, the Claimant's case stands or falls on the mantra that legacy cases are special, that effectively the only two choices are removal or indefinite leave to remain, and that anyone who happens to have been accepted as a legacy case is entitled to benefit from that special treatment. That has been comprehensively rejected in this Court, for reasons which have been extensively set out in earlier judgments.

Conclusion

23. I shall dismiss the Claimant's application for judicial review. This judgment is unlikely to be handed down before the hearing of the application for permission to appeal in Geraldo on 1 April. Even if permission were granted, that would make no difference to the law as it now is, or my conclusion in this judgment. At best, it may improve the Claimant's chances of obtaining permission to appeal this judgment from the Court of Appeal.
24. I shall leave the parties to agree any consequential orders, if possible. In default of agreement, I shall deal with such matters on written submissions.
25. For completeness I note that, since this judgment was circulated in draft, I have been informed that permission to appeal was refused in Geraldo.