England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		7 October 2014

(1) The Claimant

MR JUSTICE GREEN: The Claimant, Mr Sayeed Bukhari, first entered Britain on 9 September 1990 when he sought asylum. His application was refused in November 2007 and the Claimant thereafter returned to Pakistan. However, within four weeks of removal, he had returned illegally to the United Kingdom.

In the period during which the Defendant was determining the Claimant's asylum claim, the Claimant had two children: a son was born in 1991 and a daughter in 1995. Both are now adults. The Claimant's wife and children all have British citizenship. Over the past 22 years, the Claimant has, he says, spent all but four weeks in the United Kingdom.

(2) The Claimant's application

On 20 September 2010, the Claimant's legal representatives wrote to the Defendant requesting that the Claimant's case be dealt with as a "legacy" case. The letter was in the following terms:

"We have been instructed by the Claimant in relation to his immigration matters. Please make a note of our interest and refer to us all correspondence pertaining to our client. Mr Bukhari informs this firm that he applied for asylum in the UK in 1990. Please confirm whether Mr Bukhari qualifies under the "legacy scheme" at the Case Resolution Directorate. If Mr Bukhari qualifies, please confirm to us whether his case has already been submitted and will be considered under this scheme. If Mr Bukhari does qualify and has not already been considered under this scheme, we request that his case now be considered by the case resolution team as a legacy case. If you require any further information or documentation, please do not hesitate to contact us. We hope to hear a positive response."

The legal advisers to the Claimant cited the Home Office reference number for Mr Bukhari. It is submitted by Mr Balroop, who appears for the Claimant, that this would have made it obvious to the Defendant what the Claimant's asylum history was. But there is, however, it is right to say, no explicit reference in the letter to the fact that the Claimant had already been removed from the United Kingdom and had unlawfully returned.

(3) The UKBA response

The United Kingdom Border Agency ("UKBA") responded on 23 December 2010. It contains the following sentence:

"I can confirm that your client may qualify for consideration by the Case Resolution Directorate. Please provide the following information in order to assist this consideration."

The UKBA then proceeded to ask for information as to place and duration of residence, type of residence, marital or other status of the applicant, family and other dependants, work or study undertaken, details of how the applicant had supported himself and family and dependants, and evidence of other ties with the United Kingdom. Then one finds this amongst the information sought:

"Evidence of any other compassionate circumstances which your client feels would justify him remaining in the UK."

Finally, the UKBA sought passport photographs.

It is evident that, at its highest, the letter merely stated that it was a possibility that the Claimant might have legacy status. It is not, on any view, a promise or a representation that the Claimant did have such a status.

(4) The UKBA's failure to respond

A response was sent by the Claimant's legal advisers on 15 March 2011 which endeavoured to answer the questions posed and provide relevant information. The letter ended with the following statement:

"We hope that the above information and documentation provided will suffice in order for you to grant our client leave to remain in the UK as it has been almost 21 years our client has lived in the UK. If, however, should you require any further information or documents, please do not hesitate to contact us."

No response was received. A reminder letter was sent to the Defendant on 2 November 2011 seeking an update. Again, no response was received. On 2 April 2013, in order to stimulate a response, the Claimant's legal representatives sent a pre-action letter to the UKBA. This included the following:

"Our client entered the UK from Pakistan on 9 September 1990 with his wife (Omaiza Bukhari) and a son (Ans Bukhari) on a visa visit and subsequently applied for asylum. Mr Bukhari has been involved in politics in Pakistan and was forced to flee the country in fear for his and his family's lives. He remained in the UK for the following seven years whilst his asylum case remained pending with the Home Office. During this period, his second son (Ahsan Bukhari) was born in 1991 and daughter (Laraib Bukhari) was born in 1995. After almost seven years, the asylum case was refused and in November 1997, Mr Bukhari was detained by the immigration authorities and removed from the UK to Pakistan, separating him from his wife and children, who remained in the UK. However, due to strong private and family ties in this country and fear for his life in Pakistan, Mr Bukhari returned to the UK within four weeks of his removal in November 1997. He has remained in the UK since that date and has spent a continued 22 years in this country with only a four week break."

The letter then proceeded to remind the Defendant of the procedural history of the case.

Under a heading "action you are expected to take", the following was stated:

"Our client demands that a decision be provided within one month or, at the very least, justification for the delay and confirmation that his case is under active review, along with an estimated date of decision."

The letter concluded by saying that a response was expected within 14 days, failing which an application for judicial review would be pursued. Regrettably, this proved insufficient to stimulate any form of a response from UKBA. In view of this, the application for judicial review was brought.

(5) The application for Judicial Review

The nub of the application was in the following terms:

"That the Defendant's failure to deal with the underlying application, provide any constructive response, decision or update despite the passing of two and a half years must be held to be unfair, unreasonable and an abuse of power by the public authority."

It is relevant to note that in paragraphs 4 and 5 of the application, the Claimant recorded that he had been removed from the United Kingdom and that he had returned.

The application for judicial review cited various authorities which categorise unreasonably long delays in deciding upon applications as capable in law of amounting to an abuse of process and power.

Under the relief sought, the Claimant invited the court to grant a mandatory order requiring the Defendant to provide a decision or to confirm that she was considering his application and to provide a reasonable time frame within which a decision on the application could be expected. The Claimant further sought a declaration that the Defendant's failure to provide any response whatsoever was an abuse of power and a declaration that there had been unreasonable delay.

(6) The Defendant's continued failure to respond

No acknowledgment of service was served by the Defendant, in breach of CPR 54.8. On 9 October 2013, Nicola Davies J granted permission. Consequent upon the grant of permission detailed grounds for contesting the claim should have been served by the Defendant by 22 November 2013, but they were not. On 12 February 2014, the claim was listed to be heard on 7 October 2014. This also did not serve to stimulate the Defendant into action.

(7) The anonymous response from the Home Office

On 17 September 2014, the Claimant served an application debarring the Defendant from relying upon any evidence and a copy was served upon the Defendant. This finally had the effect of raising the Defendant from its torpor. On 26 September 2014, Treasury Solicitors wrote to the Administrative Court office in the following terms:

"I refer to my letter of 22 September 2014. I understand the court now has the Claimant's application of 16 September 2014 and the papers are to be placed before a judge, along with the acknowledgment of service of 22 September 2014. The Claimant's solicitor and this office remain in communication. I have not been served with a sealed copy of the application. My client has today issued a letter directly to the Claimant's solicitors setting out her position. I submit that this addresses the issue of the relief sought by the Claimant in paragraph 24 of his grounds and that there is no substantive issue to be determined. I ask that this letter and my client's letter of today's date be placed before the judge. A copy of this letter is to be sent to the Claimant's solicitors."

The attached letter from the Home Office to the Claimant's legal advisers was unsigned. It is dated 26 September 2014. Not only is it unsigned, the author of the letter is not specified. It states:

"You have stated that in September 2010 you lodged on behalf of your client, Mr Bukhari, an application under the legacy progress. Your communication was acknowledged in a letter dated 23 December 2010 which stated that your client may qualify for consideration by the Case Resolution Directorate, CRD. However, it appears that your perceptions of what fell to be considered under legacy programme, as originally administered by the CRD, are misconceived. CRD was established to resolve all incomplete older asylum cases where the initial asylum claim was made prior to 5 March 2007 and which had not been concluded. Mr Bukhari's asylum claim was concluded by his lawful removal from the UK in 1997. You stated that he re-entered the UK soon after his removal. He has not claimed asylum anytime since his previous asylum claim was concluded. He does not fall to be considered as one of the cohort of persons under the legacy programme. As is clear from published guidance and case law, CRD was not an amnesty and cases are considered in accordance with the existing/policies. Consideration of the case by CRD does not involve any application and is not an application in itself, nor result in an immigration decision being made unless applications were already outstanding. Nor does it create additional criteria of entitlement to remain in the UK. The Secretary of State does not propose to take any further action in respect of Mr Bukhari under the legacy programme."

(8) Defendant's submissions

On 2 October 2014, five days ago, the Secretary of State served a response in which, whilst acknowledging and apologising for the unacceptable delays and inertia, nonetheless submitted that there was no arguable case and that the application was totally without merit. The response requested the court to permit the Defendant to participate in these proceedings, notwithstanding the admitted wholesale and unacceptable non-compliance with the Civil Procedure Rules.

Mr Anderson, who appears today for the Defendant, also sought to turn the tables on the Claimant by criticising him for failing to disclose in early correspondence that his initial asylum application had been refused and that he had been removed, but that he had returned illegally.

He also submits that it is clear beyond peradventure that the Claimant cannot assert any legacy rights as that term has been used and understood in numerous cases, for instance, in the judgment of King J in Geraldo v SSHD [2013] EWHC 2763.

Mr Anderson also submits that the issue of compassionate circumstances arose exclusively within the context of legacy, but that, in any event, no separate application for compassionate circumstances or based upon Article 8 rights has been made.

Mr Balroop, who appears for the Claimant, submits that the compassionate circumstances point remains moot and unresolved and also that I should not permit the Defendant to participate in these proceedings, but if I did not agree to this and was minded to permit the Secretary of State to participate, I should adjourn the matter to permit the Claimant to respond to the Defendant's response.

(9) The merits of the legacy claim

I turn now to consider the merits of the issues arising. So far as procedural issues are concerned, I have concluded that, at a formal level, I should not permit the Defendant at this extraordinarily late stage to submit a response. I am aware of the immense logistical difficulties confronting the Defendant in dealing with immigration control. Yet, when matters come before a court there has to be some limit to the tolerance that the courts do give to the Defendant in recognition of the problems facing her. I have, however, de bene esse, read the response and had regard to it. I have taken note of the submissions made by Mr Anderson.

As to the substantive issue, I agree with the Defendant's analysis that this is not a legacy case and, however belatedly, the Defendant's letter of 26 September 2014 answers the request for an answer in a manner which, properly interpreted, is definitive. However, that is not, in my view, the end of the story. There is no reason to adjourn the case.

(10) The failure to engage with the Claimant's wider claims

In the letter from the United Kingdom Border Agency of 23 December 2010, the Border Agency, in addition to a request of information relating to the Claimant's legacy status, sought information as to other compassionate circumstances justifying the Defendant permitting the Claimant to remain in the United Kingdom. In my view, on a reasonable interpretation of that letter, the Defendant was prepared to examine the Claimant's case from a wider perspective than merely that of legacy and to consider whether surrounding circumstances warranted leave to remain.

The request was, as I have observed, answered on 15 March 2011 in which the Claimant's lawyers provided information which was relevant, amongst other things, to the exercise of a possible discretion on compassionate grounds or on Article 8 type grounds. In the chaser letters, including that of 2 April 2013, the Claimant reiterated facts pertaining to the Claimant's family ties and private rights.

The Defendant's 11th hour response addresses the legacy point, but does not purport to address any other issue relating, for instance, to compassionate grounds justifying leave to remain. As such, in my judgment, it is not an adequate response to the Claimant's case. I accept that legacy arguments were at the forefront in the Claimant's case, but other grounds were advanced and were in play.

The Defendant has not provided any disclosure. I do not know whether the author of the missive from the Home Office to the Claimant on 26 September 2014 addressed his or her mind to anything other than the narrow legacy issue. The strong inference I draw from the letter, which, as I have said, is unsigned and unidentified, is that no such consideration has been given to the matter.

In my judgment, the application, therefore, succeeds on this narrow and essentially factual basis. There remains live outstanding and unresolved issues relating to the Claimant's family and private law rights which the Defendant's response has failed to address.

(11) Appropriate relief: conclusion

I have to consider what relief to grant. In this regard, I am grateful for the proposal made by Mr Anderson, who appears for the Secretary of State, which is essentially a pragmatic response to the concerns that I have addressed in the course of the hearing. I can see no point in quashing the Defendant's letter of 26 September 2014 since it is correct in its conclusion and says that the Defendant will not take further action on the legacy grounds, but it does not say the Defendant will reject any new or further application made by the Claimant.

In these circumstances, I propose to limit myself to allowing the claim to succeed and to making the following limited direction. The Claimant will have another opportunity to put a fresh or updated application to the Defendant. I will order that no immediate decision on removal is to be made vis a vis the Claimant if the Claimant advances a new or updated application and pays any relevant fees and/or complies with any relevant procedure within 42 days.

If an application is made, it will be assessed in the ordinary way. Nothing that I say in this judgment fetters or in any way curtails the discretion or power of the Secretary of State. If, at the end of the 42 day period, no application has been made, then the effect of my order lapses and the Secretary of State may proceed as she sees fit.

I would only add this. The problem arising in this case could have been resolved had there been proper engagement by the Defendant with the Claimant at an earlier date. If such had occurred, I consider that there would have been a realistic possibility that the position of the Secretary of State would have been made explicit. It would have been, first, that there were no legacy rights, but, secondly, that this did not preclude the Claimant from making any further applications that he saw fit and/or that the wider and extant application could be elaborated upon and would be addressed.

In the circumstances, this failure to engage has, in my view, been a major cause of this matter coming before the court.

MR JUSTICE GREEN: Gentlemen?

MR ANDERSON: I will just turn my back.

MR JUSTICE GREEN: Yes, certainly.

MR BALROOP: My Lord, in view of the judgment, I will be asking for an order for costs, that the Defendant pay the Claimant's costs to be assessed, if not agreed.

MR JUSTICE GREEN: Yes.

MR ANDERSON: My Lord, I do want to make submissions on the issue of costs, if I may --

MR JUSTICE GREEN: Certainly, yes.

MR ANDERSON: -- as to why, in my submission, the usual order that costs follow the event should not be applied and should not be applied in full in this case.

MR JUSTICE GREEN: Yes.

MR ANDERSON: My Lord, there are a number of reasons for that.

Although the Claimant has succeeded in relation to the claim for judicial review, that is not, in my submission, if I may respectfully submit, on the basis of, as it were, arguments advanced --

MR JUSTICE GREEN: A certain degree of judiciary encouragement... is what you wish to say.

MR ANDERSON: -- by the judge, my Lord, yes, rather than the merits of the claim as it was pleaded.

I do submit, my Lord, that the Claimant's pleading was defective in not drawing the court's attention to a number of relevant matters. First of all, the criteria that led to a claim being processed as a legacy case. That is the fact that it was a claim that had not been concluded by 5 March 2007. That, in my submission, was highly material, because if a claim was concluded by 5 March 2007, then it could not be a legacy case.

MR JUSTICE GREEN: Yes.

MR ANDERSON: I make an observation also in relation to how the matter was conducted before the claim was brought. I appreciate the Claimant's representatives may well have been unaware, at the time when they initially wrote to the Secretary of State, about his immigration history, because that makes sense as to why they initially suggested that he make a legacy application rather than just make an application in the normal way for leave to remain. But from the time of the pre-action protocol letter onwards, it was clear, in my submission, that his case could not fall to be considered as a legacy case because of that fact of timing.

MR JUSTICE GREEN: Yes.

MR ANDERSON: Whilst obviously they did then set out, at that point, the facts, it should have been an apparent basis for those facts that he should make an application.

MR JUSTICE GREEN: Yes.

MR ANDERSON: So far as the issue of relief is concerned, in my submission, the Claimant essentially is no better off than he has been at any point before or during these proceedings. That is to say if he wishes to make an application to be considered by the Secretary of State on private and family life or other grounds, he has to make that application in the normal way as anybody else would and pay the normal applicable fee.

Plainly, engagement by the Secretary of State at an earlier stage might have enabled that to be clearer at an earlier stage, but, in my submission, it is a matter that should have been apparent to the Claimant's representatives and that would have been an alternative way of avoiding this matter coming before the court.

So, in those circumstances, I do invite the court to depart from the normal --

MR JUSTICE GREEN: You would say no order for costs.

MR ANDERSON: No order for costs, my Lord.

MR JUSTICE GREEN: Yes.

MR BALROOP: My Lord, I think the circumstances of the case are unique and I think why is because, in terms of the letter that actually started everything, which is the September 2011 letter, he did actually provide, as I pointed out before, his Home Office reference number and date of birth. The Home Office were able to actually identify his immigration history, which, I suspect, it would have done.

It would not be the normal course of proceedings, but they actually sent a letter in December 2011 explaining that he might be on the legacy case. So they have started proceedings that he has responded to this in March 2011.

Now, the purpose of the judicial review was just for an answer. He has been in limbo from the time this request had been made in September. He is not sure. "Am I legacy? Am I not? They have indicated I may be on legacy and I should submit this documentation." This is what he did.

MR JUSTICE GREEN: Yes.

MR BALROOP: During that time, there has been no response. Absolutely none. Now, it is easy for the Secretary of State to now say, "Well, there is no merit to it. He was never under legacy." But if he did not have that letter of December 2010 and that response where he may be, then that might be a circumstance.

The purpose of the judicial review was one single ground.

MR JUSTICE GREEN: Your point is you had to come to court to get an answer --

MR BALROOP: Yes.

MR JUSTICE GREEN: -- whether it was good or bad.

MR BALROOP: Yes, my Lord. On that basis, we would be entitled to our costs.

MR JUSTICE GREEN: Yes.

MR BALROOP: Unless I can assist you further.

MR JUSTICE GREEN: No. Thank you very much.

The Claimant is to have his costs to be assessed, if not agreed.

I take the view that there is a certain amount of fault on both sides here. So far as the Claimant is concerned, there has been a certain lack of focus upon the real issue in the case. On the Defendant's side, there has been a wholesale failure to engage. As I said in the course of my judgment, had there been proper engagement, this matter might have been resolved at a much earlier stage.

The Claimant came to court to get an answer without prejudice to what that answer might be. It was necessary to come to court in order to get that answer. In those circumstances, it seems to me the Claimant is entitled to his costs.

MR ANDERSON: My Lord, very briefly, if I make one final point that strikes me. I should just be clear, as I think I said in the course of submissions, that the Secretary of State does not necessarily accept the factual background as it has been put by the Claimant. I simply note that, because obviously it has not been, as it were, a fact finding --

MR JUSTICE GREEN: You are entitled, yes --

MR ANDERSON: -- hearing.

MR JUSTICE GREEN: -- to not admit the facts.

MR ANDERSON: Indeed.

MR JUSTICE GREEN: But you have not challenged them in the course of proceedings.

MR ANDERSON: No, my Lord. I simply make the point with regards to any subsequent application the Claimant makes. Obviously, the factual position will be considered.

MR JUSTICE GREEN: I gave a judgment on this very point -- about the distinction between not admitting something or denying something that the Secretary of State had not responded to until the very last moment in a case called Kadyamarunga [2014] EWHC 301 (Admin) a few months ago.

I understand the distinction. Nothing I have said binds the Secretary of State in relation to any factual matter which will come before her in due course.

MR ANDERSON: Thank you, my Lord.

MR JUSTICE GREEN: Thank you both very much indeed.