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
		10/07/2014

Christopher Butcher QC:

1. This is an application for Judicial Review brought by Aklilu Tesfay, to whom I will refer as "the Claimant". The Judicial Review Claim Form was lodged on 25 June 2012. The decision which it was said should be reviewed was "UKBA's failure to make a legacy decision and grant Indefinite Leave to Remain ("ILR") to the Claimant". It was said that no date could be ascribed to the decision, because the Judicial Review "relates to a failure to make a decision".
2. The substantive remedy sought in the Claim Form was as follows:

"1. A Mandatory Order compelling the Defendant to consider the Claimant's case under the legacy.

2. A Declaratory Order that the Defendants delay is unlawful.

…

4. Any other relief the honourable Court may deem appropriate."

3. Permission to apply for Judicial Review was refused by Hickinbottom J on paper on 14 November 2012, but was granted at a renewed oral hearing by James Lewis QC, sitting as a Deputy High Court Judge, on 24 May 2013.
4. The Grounds relied on in the Claim Form were essentially two fold, namely: (1) "that the failure to make a decision on the Claimant's outstanding application under the Legacy Scheme is unlawful"; and (2) "that the failure to grant 'ILR' is unlawful."

The Claimant's Immigration History

5. The Claimant entered the United Kingdom illegally on 16 December 2003, and claimed asylum. The foundation of the claim for asylum, as it is summarised in the Home Office's letter of 3 February 2004, was that the Claimant had a fear of persecution in Ethiopia. This was on the basis that, having an Eritrean mother, and having resided in Eritrea until – as he alleged – he was deported from Eritrea to Ethiopia in April 2003, he would face mistreatment due to his race if returned to Ethiopia.
6. The application for asylum was refused on 3 February 2004. The Immigration and Nationality Directorate of the Home Office wrote to the Claimant on that date, stating that it had been concluded that he did not qualify for asylum or Humanitarian Protection. The Reasons for Refusal Letter stated that it was not accepted that the Claimant had been deported to Ethiopia in April 2003, and that it was not accepted that what the Claimant said had subsequently happened in Ethiopia was true. The letter stated that:

"The opinion is held that you have fabricated that you were forcibly deported from Eritrea to Ethiopia in an attempt to enhance your asylum claim. It is considered that this fabrication undermines the credibility of your entire asylum application and accordingly it is not accepted that you were ever detained and mistreated by the Ethiopian authorities."

7. Also on 3 February 2004, the Claimant was informed of the availability of an appeal. The Claimant brought an appeal, on asylum and Human Rights grounds, which was lodged on 24 February 2004.
8. By a Determination Promulgated on 2 June 2004 the Adjudicator in the Immigration Appellate Authority dismissed the Claimant's appeal. In the course of the Determination and Reasons, the Adjudicator stated that there were a number of matters which cast doubt on the Claimant's credibility (paragraph 30), and stated that he was not satisfied that the Claimant had been forcibly deported from Eritrea; that if the Claimant was in Ethiopia, it was on a voluntary basis; and that he was not satisfied that the Claimant had been detained as claimed. The Adjudicator stated that he believed that the Claimant's account had been fabricated for the purposes of the appeal.
9. On 29 September 2004, the Claimant was granted permission to appeal from the decision of the Adjudicator. The Appeal was heard on 8 August 2005, and the Determination of the Asylum and Immigration Tribunal was Promulgated on 18 August 2005. The appeal was dismissed. As part of the Determination and Reasons the Tribunal stated:

"We consider that the Adjudicator was perfectly justified when he found that he could not be satisfied the appellant was forcibly deported from Eritrea, and that in fact the account had been fabricated for the purposes of the appeal."

10. The Claimant became appeal rights exhausted on 6 September 2005. He did not, however, leave the United Kingdom. He submitted further representations on 1 March 2006. These were refused by the Defendant on 8 April 2008. The Claimant did not seek to challenge that refusal by way of Judicial Review. On 2 March 2009, the Claimant made further representations for a second time. Those second set of further representations were refused on 29 March 2011 ("the 29 March 2011 decision").
11. That decision to reject the further representations was notified by a letter from the UK Border Agency with an attached Consideration of Submissions form (together "the 29 March 2011 letter"). The Consideration of Submissions was in three parts: (1) "Submissions that have previously been considered"; (2) "Submissions that have not previously been considered but which do not create a realistic prospect of success", being firstly Protection based Submissions, and secondly Non-protection based Submissions involving a consideration of the Claimant's Article 8 ECHR claim; and (3) "Consideration of compassionate circumstances", making reference to Paragraph 395C of the Immigration Rules and the factors there set out.
12. The 29 March 2011 letter contained the following:

"I am writing to inform you that your case has now been fully reviewed by CRD and the outcome is that you have no basis of stay in the United Kingdom. You should make arrangements to leave the United Kingdom without delay.

In all circumstances we prefer that those with no basis of stay in the United Kingdom leave voluntarily, but should you fail to do so, then your removal may be enforced."

13. No challenge was made to the decision of March 2011 at the time. As already set out, the present proceedings were lodged only in June 2012, alleging a failure on the part of the Defendant to make a "legacy decision".
14. On 22 August 2013, the Older Live Cases Unit ("OLCU") of UK Visas & Immigration sent to the Claimant an "Article 8 supplementary refusal letter". This contained a supplemental consideration of the Claimant's Article 8 submissions, and concluded that the decision to reject those submissions should be maintained. On 29 August 2013, the Defendant sent to the Claimant a supplementary refusal letter ("the 29 August 2013 letter") which considered the position of the Claimant by reference to Paragraph 353B of the Immigration Rules. The letter stated that the Defendant had considered all the relevant factors "and is content that your removal from the United Kingdom remains appropriate".

The Claimant's Contentions

15. While there are some issues as to the extent to which the Claimant has permission to rely on the grounds advanced, it will be helpful here to summarise the nature of the contentions put forward by Mr Paul Turner on behalf of the Claimant.
16. Four grounds were advanced in support of the contention that the Defendant had acted unlawfully. They were as follows:

i) That the Defendant had failed to conclude the Claimant's case "as a legacy case".

ii) That the decision of 29 March 2011 "cannot be construed as a lawful decision/conclusion of [the Claimant's] case under the legacy criteria". In this context it was said, in particular, that there had been no proper consideration of: (a) his length of residence; (b) the Defendant's own delay in deciding his previous fresh claims; and (c) his "unremovability".

iii) That the 29 August 2013 letter was no answer to the claim, on the basis that it: (a) was factually flawed; (b) failed to have regard to all the relevant factors in the Claimant's case; (c) failed to have regard to his length of residence; and (d) failed to have regard to his "unremovability".

iv) That the Claimant has been left in a state of "limbo". It was contended that, as an undocumented Eritrean he was not removable, and nor could he depart voluntarily; and that, in consequence, the Defendant should have granted some form of leave to remain in order that he was not "in limbo".

The Legal Framework

17. The basic legal framework was summarised by Simler J in R (Hamzeh and Others) v SSHD [2013] EWHC 4113, and I adopt her analysis.

"The legal and policy framework

16. Section 4(1) of the Immigration Act 1971 confers on the Defendant [viz the Secretary of State for the Home Department] the power to grant leave to remain in the UK, and to determine the period of any such leave. By s. 10 Immigration and Asylum Act 1999 (the "IAA 1999"), the Defendant has power to remove those who fail to comply with conditions attached to their leave to enter or remain beyond the time limited by their leave, or use deception in seeking leave to remain.

17. To enable some degree of consistency, decision-makers on behalf of the Defendant exercise their discretion in accordance with the Immigration Rules and guidance issued by the Defendant including in the form of Asylum Policy Instructions. The Immigration Rules are not subordinate legislation. They are to be seen as statements by the Secretary of State as to how she proposes to control immigration. But as the Supreme Court held in Alvi v SSHD [2012] UKSC 33, the scope of her duty is now defined by statute. The obligation under section 3(2) of the 1971 Act to lay statements of the rules, and any changes in the rules, cannot be modified or qualified in any way by reference to the common law. Everything in the nature of a rule as to the practice to be followed in the administration of the Act must be laid before Parliament.

18. It is generally well established that the Defendant is entitled to apply policy applicable at the date of the relevant decision and to consider each case on its own merits in accordance with current policy. There is no general principle of public law requiring the Defendant to ignore current or changed circumstances in making a decision so that if the decision had been made earlier and would have resulted in a more favourable outcome for an individual, whatever the changed circumstances, the more favourable outcome is to be given. …

19. The policy of the Defendant is to remove illegal migrants from the UK unless it would breach the Refugee Convention or the ECHR, or there are exceptional circumstances (or compelling reasons) in an individual case for not doing so. Accordingly, before the power to remove under s. 10 IAA 1999 is exercised, paragraph 395C of the immigration rules (in force until 12 February 2012) provided a non-exhaustive list of relevant factors to be considered if known, including age, length of residence in the UK, strength of connections with the UK, personal and domestic circumstances, criminal record, compassionate circumstances and representations received on the individual's behalf.

20. With effect from 13 February 2012, paragraph 353B replaced paragraph 395C … [quotation of 353B omitted].

21. The non-exhaustive factors listed in paragraph 395C (and subsequently 353B) are to be considered in deciding whether, notwithstanding that the applicant has no right to be in the UK and is liable to be removed under s. 10 IAA 1999, he or she should nevertheless not be removed. It provides for an exception from removal on exceptional, compelling or compassionate grounds outside the Rules.

22. In TE (Eritrea) v SSHD [2011] EWCA Civ 811 the Court of Appeal observed in relation to paragraph 395C that (i) the factors listed are not requirements to be met by an individual: they are matters that are relevant to the making of the decision whether or not to remove the applicant – factors to which regard must be had; (ii) since they are not exhaustive, other factors may weigh both for and against the applicant; and (iii) the process is described as weighing the liability to removal, and thus the maintenance and enforcement of sensible and effective immigration controls, against the largely personal factors which make it appropriate to allow the applicant to remain.

23. Published guidance on the exercise of discretion in paragraph 395C (and 353B) is contained in chapter 53 of the Enforcement Instructions and Guidance ("EIG"). The EIG contains generally applicable guidance across the whole of what was the UKBA and is not limited or specific to cases considered by CRD or as part of the Legacy Programme.

24. Changes are made to chapter 53 EIG over time, independently of the operation of the Legacy Programme. For example, prior to April 2009, there was no period specified in the section of the EIG dealing with length of residence – length of residence was simply a factor to be considered alongside others. Chapter 53 was revised in August 2009, for all cases (not just legacy cases) to allow caseworkers across the UKBA to take account as potentially significant, periods of residence of 6 to 8 years with a lower limit of 4 years (in the April 2009 guidance the potentially significant periods of residence were 10 to 12 years). The guidance was revised again in July 2011 following the introduction of the discretionary leave (DL) policy, and again, this change applied across all areas of the UKBA.

25. When paragraph 395C was replaced by paragraph 353B, chapter 53 EIG was revised, placing the onus on the applicant to raise factors (including compassionate factors or protection issues) that may be relevant to whether removal is appropriate."

The Legacy Programme and its case law

18. The Claimant's case is one which fell within the so-called Legacy Programme. This has already been the subject of a considerable number of judgments of this court. Amongst the cases which have considered it, those which are of particular relevance in the present context are R (Che) v SSHD [2013] EWHC 2220; R (Geraldo) v SSHD [2013] EWHC 2763; R (Hamzeh) v SSHD [2013] EWHC 4113; and R (Jaku) v SSHD [2014] EWHC 605.
19. In Geraldo King J described the Legacy Programme as follows:

"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, that 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 status 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 …) 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'. … 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 [2012] 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.

…

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."

20. In Jaku, Ouseley J stressed that the fact that a case might be within the Legacy Programme made no difference to the policies which were applicable to it. At paragraph [49] he said:

"49. The first fallacy in Ms Braganza's submissions is that legacy cases are a distinct class of case to which different policies apply from those which would apply to those not in the Legacy Programme. The Legacy Programme is an operational process for dealing with the backlog of unresolved applications made on or before 5 March 2007. The NAM deals with applications lodged after that date. The same Rules apply to cases in the two programmes. There is no basis for the suggestion that a different policy applied to them. The EIG does not so suggest. They are not differentiated, as at the date of any decision or action, by the individual's date of arrival in the UK, length of residence, UKBA delays, or non-compliance. Legacy cases cover the same spectrum of cases with the full range of merits, or lack of merits, and of human circumstance as those claims in the New Asylum Model."

21. The issue of what might amount to a "legacy decision" was considered by Mr Mark Ockelton (sitting as a Deputy High Court Judge) in Che. At paragraphs [24]-[31] he said this:

"24. The 'legacy programme' has given rise to a considerable number of judicial review claims, and most of those who sit in this Court now have some experience of them. They seem to fall into two categories. In one category are cases in which the claimant complains that he has not received a 'legacy decision' granting him leave to remain. In the other category are cases in which the claimant has received a grant of leave and complains that he should have received a grant of indefinite leave to remain. Cases in the former category are typically argued on the following basis.

(i) The aim of the 'legacy programme' was to resolve all legacy cases by either a grant of leave or removal of the individual.

(ii) The claimant's case fell within the legacy: it was and is a 'legacy case'.

(iii) The claimant has not received a grant of leave; and he has not been removed.

(iv) Therefore the claimant has not had a 'legacy decision'.

(v) Therefore the claimant still awaits his 'legacy decision', which with luck will be (or is required to be) a decision granting leave."

25. The present case falls clearly within this category. …

27. Looking at the argument as set out above in general terms, it is usually possible for claimants to establish the first three steps. The fault of the argument is, in my judgment, at step (iv). Although the 'legacy programme' had as its intention the sorting out of the backlog of cases by granting some sort of leave or removing individuals, it does not follow that a person neither granted leave nor removed has not yet had a legacy decision. Why that is so appears from a moment's reflection on the processes for grant and removal.

28. A grant of leave is the result of an act of a decision-maker. The person affected is likely to know little about the precise progress of his case until he receives the letter indicating that leave is to be granted and granting it. No further action is required to put the decision-maker's decision into effect.

29. The position with removals is quite different. Removals are effected not be a decision-maker but by aeroplane. The decision-maker's task is in these cases to decide that leave is not to be granted and that removal is appropriate; to see whether it is necessary to serve formal notice of a decision to remove (which may carry a right of appeal); and in suitable cases to give removal directions. The law simply does not allow people to be removed instantly on a decision-maker's say-so: even if it did there would be practical problems booking seats and so on.

30. It follows from the legacy programme that a person not granted leave is to be removed. It follows from what I have said about the process for removal that unlike the granting of leave it will not be instantaneous but will be a process that may be lengthy and is likely to begin with the person's being notified that his removal is going to take place. At that point he is aware that he is not one of those whose legacy case is going to be concluded by his being granted leave but is (therefore) one of those whose case is going to be concluded by his being removed; and subject to any challenge to the notification that he has received, he can have only an expectation that his removal will in due course be effected, leading to his case being 'concluded' for legacy purposes.

31. For the above reasons it seems to me that step (iv) is wholly unarguable in cases in which the claimant has had a notification, under the auspices of those making 'legacy decisions', that he is not being granted leave but is to be removed. Although he is not a person who has yet actually been removed, his case has been reviewed, he has had his legacy decision, and the removal process, which has to start with such a notification has begun. Such a person does not get to step (v) of the argument: decision-makers have completed their task and only those charged with arranging the mechanics of removal have any further work to do on his case. In a sense, for the purposes of the 'legacy', he is being removed."

22. In Geraldo King J had to consider arguments about what constituted "conclusion" of a "legacy case". In that case, the claimants had been granted discretionary leave to remain, but argued that they should have been granted ILR. It was, therefore, a case falling within the second category as described by Mr Ockelton in paragraph [24] of Che. At paragraphs [57]-[59] King J rejected the contention that the only outcomes of legacy cases were removal or the grant of ILR, referring to the fact that there were grants of leave other than by ILR. He further considered and rejected the contention that a failure to grant ILR was inconsistent with the "rationale" of the Legacy Programme, saying, in paragraph [125], that "The essential flaw in this ground of challenge however is that it ignores the clear evidence to which I have already referred, that the legacy programme did not have its own substantive policies, that there was to be no amnesty and that each case falling within its cohort would be determined by reference to current law and policy (as set by the asylum policy directorate on the instructions of Ministers) applicable across the UKBA."
23. The issues of whether there was an obligation to "conclude" legacy cases, and what would constitute such a "conclusion" were further considered in detail by Simler J in Hamzeh. At paragraphs [41]-[46] of her judgment the following is said:

"41. Finally … the question of what is meant by the term 'a concluded case' for the purposes of the legacy programme has been raised by Mr Turner, as it was in Geraldo. There is nothing in the Immigration Rules that creates a free-standing obligation to conclude a case. In Geraldo, the claimants argued that for legacy cases a 'conclusion' meant either removal or a grant of indefinite leave to remain and that, either there was a promise at the outset or alternatively, given the very rationale of the legacy programme, if removal was not appropriate the only other outcome could be a grant of indefinite leave to remain. The focus there was on what was encompassed by 'the grant of leave' rather than considering what 'removal' meant for these purposes. However, this challenge failed in Geraldo: the argument that there was a policy, undertaking or promise from the outset to conclude a case by granting ILR where removal was not considered appropriate was not in the end pursued; and King J held that the failure to grant ILR was not inconsistent with the very rationale of the Legacy Programme for similar reasons as those which would have applied to the former argument. The fatal flaw in these arguments (as it was described by King J at [125]) was that they ignored the clear evidence that the Legacy Programme did not have its own substantive policies, that there was no amnesty, and that each case falling within its cohort would be determined by reference to current law and policy applicable across the UKBA.

42. Here, Mr Turner makes much the same submission: a case cannot be 'concluded' under the Legacy Programme otherwise than by removal or the grant of some form of leave, albeit he no longer contends that this has necessarily to be ILR. The material relied upon to support Mr Turner's argument is the same as the material considered and tested by cross-examination by the claimants before King J in Geraldo. In particular, Mr Turner relies on statements made by Emily Miles, Lin Homer and others to establish that the Defendant considered a 'conclusion' for these purposes to be either removal or a grant of leave. He also relies on [paragraphs in Mr Forshaw's second statement in that case]

43. As a matter of fact, it appears that the view as to what constituted a conclusion changed over time, particularly once the work on legacy cases was underway and practical issues began emerging. Moreover, it also appears that the term 'removal' had a wider meaning than simply enforced removals, encompassing voluntary departures and assisted voluntary departures as well: see paragraph 4.5 Chief Inspector Vine's Report July 2012.

44. However, it is undoubtedly correct that the Defendant aimed to deal with the legacy of unresolved cases in five years or less, bringing them to a conclusion. That this was the aim and the plan of those responsible is non-contentious. Moreover, there were targets in place to achieve this and in the July 2012 Vine report, he referred to the fact that the then Home Secretary, had made 'a commitment that the UK border agency 'must deal with' the legacy of unresolved asylum cases no later than the summer of 2011.'

45. However, there is a difference between an aim or aspiration to conclude unresolved cases and an obligation (whether as a matter of legal obligation or by reference to a policy) to do so. To succeed on this argument, the Claimants must establish a commitment the breach of which amounts to a public law error. The evidence does not establish anything more in my judgment, than an aim to consider every case and make a decision in every case that was capable of being decided. There was no binding commitment made by Dr Reid when the Legacy Programme was established, whether to Parliament, the public, or to each legacy applicant to conclude these cases, still less to do so by any particular date … Nor is there any material to establish a binding commitment or policy adopted to do so at any later stage.

46. Since inclusion of a case within the legacy programme gave rise to no new rights or additional expectation of the grant of leave, the only expectation an individual could have is to have his or her case considered in accordance with current law and practice, and if leave was not granted removal could therefore be expected. Accordingly, it is difficult to see why once a person has received a decision refusing the grant of leave and is therefore to be removed, but has not actually been removed, that person's case under the legacy programme should not be regarded as concluded by such a decision."

24. Simler J applied those conclusions to the argument that there was a failure in those cases to have concluded them by removal or the grant of leave at paragraphs [59]-[63]. Her reasoning was as follows:

"59. The Claimants contend that they are not currently removable as failed Iranian asylum seekers and/or have been treated as irremovable by the Defendant. They contend that there is a legacy policy that all cases must be concluded either by the grant of leave to remain or by removing an individual; and since the UK cannot currently enforce removal to Iran, there is accordingly a legal obligation to grant leave to remain under the legacy policy.

60. I have dealt with the absence of any evidence to establish a binding commitment or policy adopted under the Legacy Programme requiring the conclusion of cases by either a grant of some form of leave or removal. No such promise or binding commitment has been established here.

61. Although the Legacy had as its intention, the sorting out of the backlog of cases by granting some sort of leave or removing individuals, that aim or rationale does not entail that a person neither granted leave nor removed has not yet had a 'legacy decision' or a concluded case for these purposes.

62. The purpose of the legacy programme was to review the backlog and to divide cases into those who should be given leave to remain from those who ought to be removed. Moreover, since the legacy programme was operational only and gave rise to no additional rights or expectations of the grant of leave, if leave was not granted following a review, removal could be expected. But as the court held in Che, there is a difference between a decision granting leave and a refusal of leave resulting in a removal decision and the commencement of the removal process. Inevitably, the process of removal is not instantaneous and may be lengthy. However, it begins with notification that leave has not been granted and that removal will therefore take place. At this point, an individual so notified has received a valid legacy decision: his case has been reviewed, it has been concluded that leave is not appropriate, so that he has had his legacy decision, and the removal process, starting with notification has begun. The mere fact that an individual has not been removed (even after a number of years), does not alter this position and mean that his case under the legacy programme has not been concluded. Any delay in enforcing the individual's removal gives rise to no legal rights or unlawfulness – the individual is not only free to, but legally obliged, to leave the UK voluntarily.

63. Nor does the fact that a refusal decision and a removal decision are separate and distinct (which I accept), alter this conclusion or lead to the conclusion that Che is wrongly decided. Mr Turner asserts that this is the case, but sets out no reasoning to support this assertion."

25. The issue of when there has been a "legacy decision" was also considered by Ouseley J in Jaku. In that case, Ouseley J (at paragraph [48]) emphasised his agreement with the judgment of King J in Geraldo and that of Simler J in Hamzeh. At paragraph [55], referring to Mr Ockelton's decision in Che, he said this:

"55. I also agree with what he said about the nature of the decision-making in the Legacy Programme when a decision refusing to grant leave has been made but no removal decision has been made nor has the applicant been removed. He pointed out in paragraphs 30-31 that once a person has been refused leave, he is to be removed under the Legacy Programme but that process of removal takes time, although he knows that his case is not one of those to be concluded by a grant of leave. It would be wholly unarguable to say that such a person has not had a 'legacy decision'. The decision-making is over; it is only the mechanics of removal which remain."

26. With that introduction it is possible to turn to the specific grounds argued in this case.

The First Ground

27. The way in which the first ground was put by Mr Paul Turner appears in his Skeleton Argument. As paragraph 53 of that Skeleton says: "The Claimant's primary complaint is that the Secretary of State has failed to conclude his case as a legacy case." It was argued that, notwithstanding the 29 March 2011 letter and the supplementary refusal letters, "it is clear that the Claimant's case remain (sic) unconcluded within the legacy scheme and that for the Claimant as an undocumented Eritrean the only possible conclusions are either a grant of leave to remain or removal…" (paragraph 54).
28. This is essentially the same argument as to an alleged failure to "conclude" a legacy case which was rejected by Mr Ockelton in Che and by Simler J in Hamzeh. In my judgment, the argument is clearly incorrect and must be rejected in this case. This is for two particular reasons.
29. In the first place, the idea underlying this and cognate arguments is that a legacy case can be "concluded" only by actual removal or the grant of leave to remain and that unless there has been one or other of those results the case has not been "concluded", and the Secretary of State has acted unlawfully. This reasoning is, however, flawed. As Simler J said in Hamzeh at paragraph [45], there was no obligation on the part of the Defendant to "conclude" legacy cases or to do so by any particular date. Nor was there any obligation on, or commitment by, the Secretary of State to the effect that a legacy case would be concluded only by actual removal or the grant of leave. As Simler J said in paragraph [60] of Hamzeh, there was no promise, binding commitment or policy requiring the conclusion of legacy cases by either a grant of some form of leave or removal. Indeed, any such requirement would have been inconsistent with the fact that the programme was an operational programme only, and cases handled within it were to have applied to them the same generally prevailing law and policy which applied to all other immigration and asylum cases.
30. The material which Mr Turner sought to rely on to suggest that the rationale or aim of the Legacy Programme was such that cases within it could only be "concluded" by the grant of leave or removal fell, in my judgment, far short of establishing any obligation, the breach of which amounted to a public law error. He relied on passages in witness statements of Mark McEvoy, Emily Miles and Neil Forshaw; on an email from Emily Miles dated 19 August 2009; a passage from the "Asylum: 'legacy cases'" report dated 10 August 2010 placed in the House of Commons Library; passages from the March – July 2012 report of John Vine CBE QPM; the September 2008 Minutes of the UKBA Case Resolution Stakeholder subgroup; and CRD training slides dating from August 2009. Most if not all of this material was before King J in Geraldo and, as I understand it, all of it was before Simler J in Hamzeh. I reject Mr Turner's suggestion that Simler J did not properly consider it or its implications. Paragraphs [42]-[45] of her judgment show that she did consider the material. She decided, however, that it did not establish more than that it was an aim or aspiration to conclude the legacy cases. Even if this aim or aspiration was – at least at one time – to conclude those cases by a grant of leave or actual removal, that was not the subject of any binding commitment or policy.
31. I have considered the material Mr Turner referred to, and I agree with the conclusion reached by Simler J. The statements he relied on were essentially attempts to describe, and summarise, the aim of the Legacy Programme. But they were not commitments. Nor were they a statement of policy: indeed, I understood Mr Turner to accept that there was no relevant "Legacy policy". In the absence of any legislation, regulation, commitment or even policy to "conclude" legacy cases by a grant of leave or actual removal, I do not see the basis for a contention that there was a public law error in not doing so.
32. The second aspect relates to the fact that in this case the Claimant received the 29 March 2011 letter notifying him that it had been concluded that he should not be given leave to remain. In this context, I agree with Simler J in paragraph [62] of Hamzeh that the rationale of the Legacy Programme was sorting out the backlog of cases and dividing cases into those which should be given leave to remain from those who ought to be removed. Once a case had been reviewed and a decision had been made and notified to the individual concerned as to whether he or she should be given leave to remain or that there should be removal, all the decision-making necessary as part of the Legacy Programme had been completed. The individual at that point had a "legacy decision". He or she had no expectation of or entitlement to any further "legacy decision". The fact that the individual was not immediately removed does not alter this. In the present case, the Claimant had his "legacy decision" on 29 March 2011. He was not entitled to any further decision "under the legacy" as it is put in the Claim Form.
33. This conclusion on the point is the same as that in Hamzeh, which itself referred to Che with approval. In this context, it should be recorded that Mr Turner argued that the reasoning of Mr Ockelton in Che at paragraphs [29]-[31] was wrong because the judge equated the refusal decision with the commencement of the removal process and in doing so ignored the fact that there would need to be a separate decision actually to remove an individual.
34. I do not accept this argument. I consider that Mr Ockelton was – as would be expected - fully aware of the fact that for an individual to be actually removed, there might need to be a subsequent removal decision after the refusal decision. Indeed, that appears from paragraph [29] of the judgment. As I understand it, what Mr Ockelton was saying in paragraphs [30] - [31] was as follows. He had already, in paragraph [27], rejected the idea that there was a simple dichotomy in legacy cases between the grant of leave and removal such that a valid "legacy decision" must be one or the other. But in paragraphs [30]-[31] he went on to say that, even if that dichotomy were adopted, a decision to refuse leave should be regarded as constituting the latter. It is on that basis that, as he says, "in a sense, and for the purposes of the 'legacy'" the individual who has received such a decision can be regarded as being removed. The most important point, however, is that there is no expectation of or requirement for any further 'legacy decision'. It is significant that in paragraph [55] of Jaku, Ouseley J specifically agreed with Mr Ockelton in Che that once a decision refusing leave has been given, even though no removal has taken place, "it would be wholly unarguable to say that such a person has not had a 'legacy decision'". As Ouseley J said, at that point "the decision-making is over".
35. Mr Turner submitted that in the present case, the fact that the Defendant had issued the supplementary refusal letters of August 2013 indicated that the case had not been "concluded" by the 29 March 2011 letter, and that this showed that a "conclusion" was still necessary, which must be either removal or the grant of leave. In my view, this highlights the fact that Mr Turner's argument is essentially one which rests on giving a fallacious importance to the fact that a legacy case may not be, for all purposes, finally concluded. It may be the case that because the individual has not, even after his 'legacy decision' left the UK as required, other matters may arise in his case. But what is significant is that after his case has been reviewed and a decision reached as to whether he should be granted leave or not, the only decision-making process envisaged as part of the legacy programme has been completed, and the mere fact that the case was within the legacy programme can, of itself, have no arguable relevance to whether he should or should not, thereafter, be granted leave to remain.
36. One final matter remains to be considered in relation to the first ground. Mr Turner referred to the transcript of the exchanges of Counsel and Burton J on 18 July 2012 in an application for permission to bring an application for Judicial Review in R (Aberaham and Others) v SSHD, which resulted in a stay of the proceedings. Those exchanges did not form a judgment of the court. I do not read Burton J's remarks as seeking to express a concluded view on any issue which is live before me, and nor do I consider that there was any position taken by the Secretary of State for the Home Department on that occasion which is relevant to a determination of the present case.

The Second Ground

37. As already stated, this ground is that the 29 March 2011 letter did not constitute "a lawful decision / conclusion under the legacy criteria".
38. Insofar as the argument is based on an alleged failure to "conclude", it has already been addressed in considering the first ground. Equally, insofar as any suggestion was made that the "legacy criteria" were in some way different from those which applied to other decisions as to whether the power to remove under s. 10 IAA 1999 should not be exercised notwithstanding that the applicant had no right to be in the UK and was liable to be removed, it would have been rejected. Any such argument would be inconsistent with the findings in Geraldo, Hamzeh and Jaku that there was no different policy applicable to "legacy cases", 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.
39. In the event, I understood Mr Turner's submissions under this head to be a case that the 29 March 2011 decision was not a lawful decision because it did not involve a proper consideration of the matters which fell to be considered under paragraph 395C and Chapter 53 EIG, without relying on any alleged criteria specific to "legacy" cases.
40. It is helpful to recall the terms of paragraph 395C and well as of the relevant parts of Chapter 53 as it stood at the time of the 29 March 2011 letter.
41. Paragraph 395C, which was not directly applicable to the Claimant as an illegal entrant, but to which regard would be had, was in these terms:

"395C. Before a decision to remove under section 10 is given, regard will be had to all the relevant factors known to the Secretary of State including:

(i) age;

(ii) length of residence in the United Kingdom;

(iii) strength of connections with the United Kingdom;

(iv) personal history, including character, conduct and employment record;

(v) domestic circumstances;

(vi) previous criminal record and the nature of any offence of which the person has been convicted;

(vii) compassionate circumstances;

(viii) any representations received on the person's behalf. …"

42. Chapter 53 of the EIG in the form in which it stood in March 2011, included the following:

"53 Extenuating circumstances

It is the policy of the Agency to remove those persons found to have entered the United Kingdom unlawfully unless it would be a breach of the Refugee Convention or ECHR or there are compelling reasons, usually of a compassionate nature, for not doing so in an individual case.

53.1 Illegal entrants and persons subject to administrative removal action under section 10 of the 1999 Act

Full account must be taken of all relevant circumstances before a decision to remove is taken on a case.

The factors to be considered are the same as those outlined in paragraph 395C of the Immigration Rules.

53.1.1 Instructions on applying paragraphs 364 to 368 and 395C of the Immigration rules

Before a decision to remove is taken on a case, the case-owner/operational staff must consider all known relevant factors (both positive and negative). …

Relevant factors are set out in paragraph 395C of the immigration rules and in the guidance below, but this list is not exhaustive. …

53.1.2 Relevant factors in paragraph 395C

The consideration of relevant factors needs to be taken as a whole rather than individually, for example, the length of residence may not of itself be a factor, but it might when combined with age and strength of connections with the UK.

- Age

...

- Length of residence in the United Kingdom

For those not meeting the long residence requirements elsewhere in the immigration rules, the length of residence is a factor to be considered. In general, the longer a person has lived in the UK, the stronger their ties will be with the UK. …

Residence accrued as a result of non-compliance by the individual

Where there is evidence of an attempt by the individual to delay the decision making process, frustrate removal or otherwise not comply with any requirements imposed upon them, then this will weigh against the individual.

Residence accrued as a result of delay by UKBA

Case law has established that there are particular contributory factors involving delay that need to be present before it is considered significant enough to grant leave …

These include cases where;

- An application has been outstanding for over 2 years; and

- No decision has been received from the UK Border Agency during that time; and

- The individual has been making progress enquiries during that time; and

- In the meantime the delay has meant that they have built up significant private or family life or the delay has resulted in considerable hardship.

In addition to the foregoing, provided that none of the factors outlined in 'Personal History' weigh against the individual, then caseowners should also place weight on significant delay in cases where, for example;

…

- Any other case where delay by UKBA has contributed to a significant period of residence, Following an individual assessment of the prospect of enforcing removal, and where other relevant factors apply, 4-6 years may be considered significant, but a more usual example would be a period of residence of 6-8 years.

- Personal history (including character, conduct and employment record):

…

Caseowners must also take account of any evidence of deception practiced (sic) at any stage in the process, attempts to frustrate the process (for example, failure to attend interviews, supply required documentation), whether the individual has maintained contact with the UK Border Agency, as required, and whether they have been actively pressing for resolution of their immigration status. The caseowner must assess all evidence of compliance and non compliance in the round. The weight placed on periods of absconsion should be proportionate to the length of compliant residence in the UK. For example, additional weight should be placed on lengthy periods of absconsion which form a significant proportion of the individual's residence in the UK.

- Strength of connections with the UK

Family ties (including marriage/civil partnership and relationship akin to marriage) and other connections such as business or lawful employment must be considered. …

- Domestic circumstances

…

- Compassionate circumstances

Any compelling compassionate circumstances will be considered and given due weight. …

- Any representations received on the persons behalf:

These must always be considered and given due weight. Individuals may raise other relevant factors not listed above. These should be fully considered on a case-by-case basis."

43. The 29 March 2011 letter, in its Section 3 dealing with "Consideration of compassionate circumstances", after reciting the terms of Paragraph 395C, stated as follows:

"The Secretary of State has considered all the relevant factors in your case, and is content that your removal from the United Kingdom remains appropriate for the following reasons:

(i) Age;

Consideration has been given to your age. It is noted that you are 31 years of age and, on the evidence available, in good health. Your age is not a sufficiently compelling factor to justify allowing you to remain in the United Kingdom.

(ii) Length of residence in the United Kingdom;

It is noted that you have now resided in the United Kingdom for just over seven years. However, you have at no time been granted leave to enter or remain in the UK. You have also failed to comply with reporting conditions imposed on you following the exhaustion of the appeal rights against the refusal of your asylum application. In the circumstances, it is not considered that your length of residence is sufficiently compelling to justify allowing you to remain in the United Kingdom.

(iii) Strength of connections with the United Kingdom;

You have not provided any evidence of your strength of connections with the United Kingdom, other than to indicate that you have established links with the Eritrean community. In itself, this is not a sufficiently compelling factor which would justify allowing you to remain in the United Kingdom.

(iv) Personal history, including character, conduct and employment record;

You have not raised any issues or provided any evidence relating to your personal history, character, conduct or employment record (you have, in any case, never been granted permission to work in the UK). There are no sufficiently compelling factors which would justify allowing you to remain in the UK.

(v) Domestic circumstances;

No information has been provided relating to your domestic circumstances. In the light of this, your domestic circumstances cannot be considered to be a sufficiently compelling factor which would justify allowing you to remain in the United Kingdom

(vi) Previous criminal record and the nature of any offence of which the person has been convicted;

There is no evidence that you have a criminal record. However, absence of a criminal record, in itself, would not be a sufficiently compelling factor which would justify allowing you to remain in the United Kingdom

(vii) Compassionate circumstances;

You have not raised any compassionate factors which would be sufficiently compelling to justify allowing you to remain in the United Kingdom

(viii) Any representations received on the person's behalf."

No representations, other than those addressed elsewhere in this letter, have been raised by you or on your behalf."

44. In light of the terms of the 29 March 2011 letter, I find it impossible to see that there is any case that there was here a public law error. In particular:

i) The various considerations referred to in paragraph 395C were addressed;

ii) This was as part of a 'holistic' appraisal of the Claimant's case;

iii) There were, apart from length of residence in the UK - to the extent to which that was positive - no other positive factors, such as contribution to the community or strength of connections with the UK;

iv) The conclusion which was reached was one which cannot be said to have been outside the range of possible conclusions on the case.

45. As to the specific points raised by Mr Turner, the first was an alleged failure properly to consider and weigh the length of the Claimant's residence. The simple answer to this is that it was considered. It was not, however, considered sufficiently compelling to justify allowing the Claimant to remain in the UK, taking account of the fact that at no time had the Claimant been granted leave to enter or remain in the UK.
46. Mr Turner sought to derive support from the reference in Chapter 53 to a period of 6 years, and argued that the decision did not have regard to this as a "significant" period and was accordingly flawed. I reject that submission. As Ouseley J said in paragraph [61] of Jaku in relation to a similar argument as to a 6 year period of residence:

"There is no requirement for an express reference to the EIG for the SSHD to show that it has been considered; nor is it necessary for her to demonstrate that it had been given significant weight. It is necessary for a decision to show that the period of residence of 6 years or more has been considered in the round with all the other factors. The significance of that period of residence may be diminished by residence if non-compliant or discounted by periods of non-compliance; it matters not precisely how it is expressed. But all that is required is that the decision should explain why leave is not being granted after six years residence."

Applying that approach, there appears to me to be no basis for faulting the 29 March 2011 decision in this respect.

47. The second specific point raised by Mr Turner was that, he said, inadequate regard had been had to the Defendant's own delay in dealing with the Claimant's fresh claims. Once again, he sought to support this by referring to Chapter 53, and its reference to cases in which there had been an application outstanding for over two years. Again, I consider that there is nothing in this point. The reference to a period of two years in Chapter 53 as it stood in March 2011, was to a case in which 4 factors were all present, one of which was that "In the meantime the delay has meant that they have built up significant private or family life or the delay has resulted in considerable hardship". There is no basis for saying that in the periods of alleged delay the Claimant built up significant private or family life, or that the delay resulted in considerable hardship.
48. As to the sub-paragraph in Chapter 53 which refers to "any other case where delay by UKBA has contributed to a significant period of residence", this is only to be given weight when none of the other factors outlined in Personal History weigh against the individual. One of the factors which Chapter 53 states should be considered under the heading of Personal History is "evidence of deception practiced (sic) at any stage of the process", as well as whether the individual has maintained contact with the UKBA as required. There was, in this case, evidence of deception, given the findings of the Adjudicator in the Immigration Appellate Authority and of the Asylum and Immigration Tribunal. Further the 29 March 2011 letter records non-compliance with reporting conditions. In the circumstances, applying Chapter 53, the case was one in which the sub-paragraph cited was not applicable.
49. The third specific point raised by Mr Turner was that the Defendant had had inadequate regard to the question of "unremovability". In this context, he argued that the prospect of enforcing removal was a relevant factor, and he made particular reference, in addition to paragraph 395C and Chapter 53, to the Defendant's guidance to caseworkers and to pro formas issued to caseworkers. He also submitted that the consideration of the issue of "unremovability" by Simler J in Hamzeh was not in point, because it had related to the position under paragraph 353B, not 395C.
50. I do not accept that there was in the present case any obligation on the part of the Defendant to consider "unremovability" in the way for which the Claimant contends or that there is a case that the Defendant acted unlawfully in failing to have any or any adequate regard to the Claimant's "unremovability" in the decision of 29 March 2011.
51. There is no requirement under paragraph 395C to consider removability. As Simler J said in Hamzeh (paragraph [69]), the paragraph assumes a liability to removal, but requires consideration, by way of staying the Defendant's hand on removal, of relevant factors.
52. Chapter 53, as it stood at the time of the 29 March 2011 letter, referred to removability in the sub-paragraph I have quoted above, under the heading "Residence accrued as a result of delay by UKBA", which begins "Any other case…" That sub-paragraph indicates only that the decision-maker may consider attaching weight to a significant period of residence if the prospects of enforcing removal are low provided none of the factors outlined in Personal History weigh against the individual, and where other relevant factors apply in the applicant's favour. The purpose of the reference to removal appears to be to ensure that there will not be a grant of leave where there is a good prospect of removal. It does not indicate that, if the prospects of removal are low, there should be grant of leave regardless of the other factors.
53. In the present case, as I have already said, the Defendant could legitimately take the view that the factors outlined in Personal History weighed against the Claimant. Equally there were no other positive "relevant factors" which applied. For either of those reasons, the question of an assessment of the prospect of enforcing removal did not arise.
54. As to the other materials relied upon by Mr Turner in this context, I do not consider that these can be used to suggest that the policy was other than that which appeared in Chapter 53. As Simler J said in Hamzeh (paragraph [36]), if there had been a change of policy or practice it would have been by published guidance; and as Ouseley J said in Jaku (paragraph [38]) the obviously relevant policy document was Chapter 53 itself.
55. Even if, contrary to my view, it is appropriate to look at the other material, I do not consider that it indicates any policy or practice different from that which is set out in Chapter 53. Specifically, the Training Slide from August 2009 (at F/75), appears to give guidance as to how an "individual assessment of the prospect of enforcing removal" was to be carried out, assuming that, in accordance with Chapter 53, one was necessary. It does not, in other words, purport to alter the circumstances in which such an assessment is necessary or to be given weight. Furthermore, as pointed out by Simler J in paragraph [86] of Hamzeh, the slide itself states that a "holistic" assessment is still required, and 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.
56. The V10 Pro-forma of December 2010 indicates that there should be a consideration of the prospect of enforcing removal if there are any negative answers in Part 1. This, however, is not limited to a consideration of difficulties in enforcing removal. As Simler J noted in Hamzeh at paragraph [85], by reference to the evidence of Mr Forshaw, if the prospects of removal are good, then a grant of leave is unlikely to be appropriate. The pro forma also requires, as is set out under the heading "Decision", an assessment of all the evidence in the round. I do not consider that this pro forma indicates that there was any policy to the effect that "unremovability" was to be given weight in a way not indicated by Chapter 53 itself.

The Third Ground

57. The third ground put forward by Mr Turner is that the Defendant's letter of 29 August 2013 was no answer to the claim.
58. That letter considered whether the removal of the Claimant remained appropriate by reference to the considerations in paragraph 353B Immigration Rules, which had come into effect since the 29 March 2011 letter. Paragraph 353B is conveniently set out in paragraph [20] of Simler J's judgment in Hamzeh. The terms of Chapter 53 of the EIG at the time of the 29 August 2013 letter are set out in paragraph [27] of the same judgment.
59. The 29 August 2013 letter stated:

"The Secretary of State has considered all the relevant factors in your case, and is content that your removal from the United Kingdom remains appropriate for the following reasons:

Character, conduct and associations: You have not provided any evidence of your strength of connections with the United Kingdom, other than to indicate that you have established links with the Eritrean community. In itself, this is not a sufficiently compelling factor which would allow you to remain in the United Kingdom.

You have not raised any issues or provided any evidence relating to your personal history, character, conduct or employment record (you have, in any case, never been granted permission to work in the UK). There are no sufficiently compelling factors which would justify allowing you to remain in the UK.

There is no evidence that you have a criminal record. However, absence of a criminal record, in itself, would not be a sufficiently compelling factor which would justify allowing you to remain in the United Kingdom.

Compliance: On the 27/01/2004 you were issued with an IS96 – reporting instruction notifying you to report to your local immigration on 02/03/2004. You failed to attend this appointment and all reporting events preceding this date. You were listed as an immigration absconder. On the 07/04/2008 you were again issued with an IS96 instructing your (sic) to report on 21/04/2008. You failed to attend and were again listed as an immigration absconder. You did not begin to comply with your Temporary Admission in the UK until the 06/04/2010. You have reported on a regular basis since this date. You therefore failed to maintain contact with the Home Office and were listed as an absconder for as (sic) period of 6 years. Therefore your poor compliance record, does not justify allowing you to remain in the UK.

Length of residence spent for reasons outside the control of the migrant: You have remained illegally resident in the UK and it is evident that your length of residence was not due to any particular reasons beyond your control. You failed to attend your local immigration office in 2004 for reporting as required by the terms of your Temporary Admission to the UK and absconded from this time. It is noted that you lodged further submissions on 02/03/2009 which were refused by the Home Office on 29/03/2011. Your submissions were outstanding for a period of 2 years, this delay is not considered exceptional.

Your submissions under Paragraph 353B of the Immigration Rules have been reconsidered under the relevant case law, but it has been decided to maintain the decision of 03/02/2004 to reject the further submissions. Accordingly it is not appropriate to grant you leave for the reasons set out above and those stated in the letter of 29/03/2011.

Furthermore it has been decided that your submissions do not amount to a fresh claim. The new submissions taken together with the previous considered material do not create a realistic prospect of success, namely that an immigration judge applying anxious scrutiny would decide that the claimant ought to be granted asylum, Humanitarian Protection or Discretionary Leave for the reasons above and in light of WM (DRC) v SSHD and SSHD v AR (Afghanistan) [2006] EWCA Civ 1495.

You have no basis of stay in the United Kingdom and should make arrangements to leave the United Kingdom without delay.

In all circumstances we prefer that those with no basis of stay in the United Kingdom leave voluntarily, but should you fail to do so then your removal may be enforced."

60. As set out above, Mr Turner seeks to make 4 points in relation to this letter. The first is a contention that it is factually incorrect, in particular in relation to whether the Claimant was an immigration "absconder", and whether he had failed to report as required. In this connexion he referred to a witness statement from the Claimant dated 1 May 2014.
61. To this Ms Anderson for the Defendant takes as a first point that this challenge is one which the Claimant has no permission to make. She argues that, if such points were to be raised, the Grounds of Review should have been amended, and permission to file amended Grounds should have been sought. I accept that submission. These arguments on the third ground went significantly beyond any point on which the Claimant had been granted permission to seek judicial review.
62. Even if, which I do not consider appropriate, that point were to be put on one side, I am not satisfied that there was any relevant error such that the decision was unlawful. For there to be unfairness by reason of an error of fact, the fact in question must be established in the sense of being uncontentious and objectively verifiable, as well as being material to the decision-maker's decision.
63. In this regard, Ms Anderson argues that the fact that the Claimant was listed as an absconder, far from being uncontentiously wrong, was unquestionably correct. As to whether he had failed to report as required in the period 2004 to 2010, she argued that there was evidence of non-reporting in accordance with a requirement in 2004 in the GCID Case Record Sheet. Thereafter he must have known that he should have been reporting, and was not. She submitted that it was no answer that he was, at least for part of the time, in NASS accommodation: he had an obligation positively to make contact. Further, she submitted that there was evidence that an IS 96 form had been sent to the Claimant by recorded delivery in April 2008; and it was common ground that he had not reported until 2010. She said that there was no reason to doubt that he had received that IS 96 other than his witness statement, but that statement was not necessarily to be believed, given the evidence of the Claimant's past attempts at deception (as found by the Adjudicator and on appeal in 2004 and 2005) and its failure to mention that the Claimant's initial asylum application had been on the basis that he was Ethiopian.
64. Ms Anderson further submitted that if there was any error, it was not material. In circumstances where there were other factors counting against the Claimant – including the deception found by the Adjudicator – and the absence of positive factors or compassionate circumstances, any error in relation to these matters was not shown to be material to the decision made.
65. There are clearly issues of fact in relation to the Claimant's reporting, which I am not able to decide. The points referred to in paragraph [63] above show that the errors relied upon are not clear and uncontentious mistakes. I also accept Ms Anderson's submission on materiality. Overall, I conclude that there is no established error of fact which has been shown to be material to the decision made.
66. Mr Turner's other arguments in relation to the third ground were contentions that the 29 August 2013 letter indicated that the Defendant had failed to have any or any adequate regard to:

i) The period of delay of 2 years in dealing with the fresh claim made in March 2006;

ii) The issue of "unremovability"; and

iii) The length of the Claimant's residence in the UK.

67. These points essentially replicate issues considered in relation to the 29 March 2011 decision. Taking them in turn:

i) As to the reliance on the period of delay in dealing with the fresh claim made in March 2006, what Chapter 53, as it stood in August 2013, provided was that delay by UKBA might be considered where the factors outlined under "Character" and "Compliance" did not weigh against the individual. The factors relevant to "Compliance" included whether there was evidence of deception practised at any stage in the process; failure to comply with reporting conditions; and whether the individual had worked illegally. The first of those matters was established by the findings of the Adjudicator and Asylum and Immigration Tribunal. The Defendant was equally not unreasonable in considering the second as applicable. There was also evidence that the Claimant had worked unlawfully at an address in Willesden in 2010. In the circumstances, I conclude that there was no obligation on the Defendant to consider the period of delay referred to. Furthermore, it was a period of two years in respect of a claim which was rejected. There is no reason to consider that it would or should have been accorded different weight from that accorded to the 2 year period (after 2 March 2009) taken for considering the Claimant's second fresh claim, in relation to which the 29 August 2013 letter stated that this was not considered exceptional. In any event, the delay could only have been one factor in a "holistic" consideration of the Claimant's case, which also involved the negative, and lack of positive, factors.

ii) The treatment of "unremovability" under paragraph 353B and Chapter 53 as amended and operative in August 2013 is little different from that under paragraph 395C and Chapter 53 as it stood in March 2011. Accordingly, most of what I have said above on the issue applies equally here. Most significantly, given that the factors to be considered under "Compliance" weighed against the individual, I do not consider that the Defendant's decision-making can be faulted for not giving weight to alleged problems of removability. The material in the Claimant's witness statement which relates to "unremovability" recounts steps which the Claimant says that he has taken since 2013. Those are not something which could have been considered by the Defendant at the time of the 29 August 2013 decision and are not a basis for faulting that decision.

iii) The length of the Claimant's residence in the UK was considered in the 29 August 2013 decision, and reasons were given as to why it was not considered to justify the grant of leave to remain, when taken with other factors. There is no public law error here.

The Fourth Ground

68. The fourth ground relates to the Claimant's alleged "limbo". What is said is that the Claimant remains in the UK without any leave; but as an undocumented Eritrean he is not removable, nor can he depart voluntarily without an Eritrean ID card. In this regard he relies on his witness statement of 1 May 2014, in which he describes a visit by him to the Eritrean Embassy on 28 April 2014 during which he says that he was informed by one of the Embassy officials that to be registered he would need to produce an Eritrean form of ID. He also says that he was subsequently told that the Embassy would be unable to document him unless he produced his parent's ID documents, or the Eritrean ID documents of any other close relatives.
69. Mr Turner for the Claimant also notes that the Defendant has not taken any steps either to document or to remove the Claimant.
70. The Claimant contends, accordingly, that he is in "limbo" and that the Defendant has acted and is acting unlawfully in leaving him in this position.
71. Ms Anderson submits that the fourth ground is fundamentally misconceived. She argues that the Claimant has not identified any basis in law on which there could be a Mandatory Order based on the "limbo" argument, or even identified what the order would be. She contends that the Defendant is under no obligation to seek to document and/or remove individuals who have no leave to remain: that is a matter for the Defendant's discretion. In this regard she refers to the decision in Patel and others v SSHD [2013] UKSC 72, in particular at paragraphs [27]-[29]. Ms Anderson further submits that there is no "limbo policy" by which persons who cannot return to their home country because they do not have travel documents must be given leave to remain because they would otherwise be in "limbo". She referred to Hamzeh paragraph [51], and submitted that the only "limbo policy" relates to British Overseas Citizens, and was inapplicable here. Even if there had been any relevant policy, which she submitted that that there was not, it could be no less restrictive than that for BOCs, which requires the applicant to establish non-returnability by the production of letters, or equivalent, from the appropriate authority confirming non-returnability, together with copies of the applicant's application to the relevant authority seeking re-documentation.
72. I accept Ms Anderson's submissions on this issue. There has been no identification of what Mandatory Order the Court could make in relation to this Ground. Equally, it has not been identified what legal basis there is for saying that there is an error of law in the Defendant's failing to grant the Claimant leave on the basis of his lack of documentation. No relevant "limbo policy" has been shown to exist. I accordingly agree that the position in relation to BOCs is not relevant. Nevertheless, it is right to record that, had there been any wider "limbo policy" it is difficult to see why it should have been any less restrictive than in relation to BOCs, and further that the evidence as to difficulties of documenting the Claimant falls short of that which would be required in the case of BOCs.
73. For the sake of completeness I should add that, although Article 8 of ECHR was mentioned in Mr Turner's Skeleton Argument, he did not develop any case on it, and Ms Anderson submitted that it had been dropped. Insofar as any case in relation to Article 8 was maintained as part of an argument that, because he would otherwise be in "limbo" the Claimant should, by reason of Article 8, be given leave to remain, I reject it for essentially the same reasons as were given for rejecting a similar argument in Abdullah v SSHD [2013] EWCA Civ 42, paragraphs [19], [22]. In the present case, there is no evidence that the Claimant has established a family life which would be interfered with, and any interference with his private life in refusing leave to remain would be proportionate to the permissible aim of maintaining effective immigration control.

Conclusion

74. For these reasons the application fails and is dismissed.