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
		12th December 2014

Bobbie Cheema QC:

Introduction

1. The Claimants are Turkish nationals who wish to settle in the United Kingdom. This is a claim for judicial review of the Defendant's decision on 28^th September 2011 to grant the Claimants three years' discretionary leave to remain in the United Kingdom rather than indefinite leave to remain. Permission was refused on the papers by Hickinbottom J on 3^rd April 2012. On 4^th July 2012 an oral hearing of the renewed application for permission took place before Clive Lewis QC (as he was then) who ordered that the application be stayed pending the decision of the Court of Appeal in Hakemi v SSHD [2012] EWHC 1967 (Admin). Permission was granted with directions, including the lodging of amended grounds by Hamblen J following the renewed oral application for permission on 26^th March 2014.
2. The relief now sought is a mandatory order that the Claimant (together with his wife and son) be granted indefinite leave to remain. The current Grounds of Claim can be summarised:

i) The Defendant unlawfully failed to follow her own policy Priorities and Exceptional Circumstances during the period that the Claimant's case was included in the Legacy programme

ii) There was an unlawful delay in reaching a decision in the Claimant's case and the Claimant had a legitimate expectation that a decision would be reached in his case by 19^th July 2011

iii) At the time she made the decision in the Claimant's case there was an unlawful failure by the Defendant to follow her own discretionary leave policy and an unlawful fettering of discretion.

Essential Chronology

3. The Claimant and his wife first arrived in the United Kingdom in 1999 and claimed asylum. He was removed to Germany on third country grounds under the provisions of the Dublin Convention and then returned to Turkey.
4. In 2001 their son travelled to the United Kingdom and claimed asylum. His application was refused and his appeal against the refusal was dismissed in 2003. In that year the Claimant and his wife also returned to the United Kingdom and claimed asylum. They were again returned to Germany and then on to Turkey for the second time.
5. They travelled back to this country and entered for the third time in 2004. While in Turkey the Claimant had written a letter to the United Kingdom authorities and upon his arrival he instructed a solicitor to submit a written application for asylum. It is accepted on the part of the Claimants that this application should have been made in person although it is not conceded that no valid claim for asylum was in fact lodged. This is one of the matters I have to resolve.
6. The Defendant sent the Claimant a family questionnaire in 2005 for his case to be considered under the family amnesty policy but this was refused. In the meantime another son of the Claimant and his daughter also arrived in the United Kingdom and obtained indefinite leave to remain and British citizenship.
7. The Claimant approached his Member of Parliament, Mr Stephen Timms who made written representations to the Defendant in a letter dated 9^th December 2008. In his letter the MP set out what he had been told of the history including the 1999 asylum application, the 're-submitted' 2004 asylum application and the Home Office reference numbers for the Claimants. The MP asked

"What is the status of Mr and Mrs Delipalta's application? Given their poor health and the treatment they have suffered in Turkey, can a decision be made as quickly as possible? "

8. A response from the Case Resolution Directorate came on 29^th December 2008. It included these words,

"In the light of the particular circumstances of their case, Mr and Mrs Delipalta's application to remain in the United Kingdom will be considered as a priority. We will contact them as soon as a decision has been reached.

Please note that the Case Resolution Directorate is currently reallocating all cases. Mr and Mrs Delpalta's case will shortly be reallocated to the relevant case working team who will consider their case."

9. The Defendant's electronic file notes (GCID case notes) give no explanation as to why that letter was sent in those terms. It is accepted that it was not a standard letter sent to those enquiring about Legacy cases. The file notes simply refer to the letter from the MP.
10. On 29^th May 2009 the Claimant's solicitors, Stuart Karatas, wrote to the Defendant asking for their case to enter the Legacy scheme and be granted indefinite leave to remain. It is of note that when the Claimant's claims history is set out in that letter there is no reference to a claim for asylum in 2004 but rather to an application for asylum made in 2003 being still pending.
11. Mr Timms MP sent a further letter dated 20^th November 2009 asking if any progress had been made in the intervening eleven months. The Defendant's reply of 23^rd December 2009 included the following,

"…we have now called for Mr Delipalta's case file and will be taken (sic) it forward. We will contact him as soon as a decision has been made on his case."

12. On 11^th May 2010 a new firm of solicitors, Elder Rahimi Solicitors wrote to the Defendant asking for urgent confirmation of the position. In July 2010 the Claimant suffered a heart attack. His solicitors contacted the Defendant with this information and observations about the uncertainty of the Claimant's status not helping his condition. Included with the letter was evidence of the Claimant and his family's settled life in Britain.
13. Thereafter on 16^th July 2010 a letter before action was sent making specific reference to the letters to Mr Timms and this time also to a 2004 asylum claim. By response on 9^th August 2010 the Defendant wrote (spelling corrected)

"It has been decided to conclude your client's case at the earliest opportunity. Your file is currently being routed to our case preparation team who will then begin the process of conducting further checks. The file will then be forwarded to a caseworker in our team to consider your client's case."

14. Further correspondence followed and on 26^th October 2010 the Defendant requested photographs of the Claimant and his dependents and other information. This was responded to in November 2010. No decision was issued. A further letter before action was sent dated 22^nd June 2011. In the response on 12^th July the Defendant stated that the Claimant's case had not been dealt with under the Case Resolution Directorate Legacy scheme but had been allocated to a small unit, Case Assurance and Audit Unit, which was dealing with cases where contact had not be made with the Claimant or where the case had not be concluded due to ongoing operation activity and a decision would be made within the next three months. The Claimant submits that his case could not have fallen into either of those categories.
15. Another letter was written by Mr Timms MP on 20^th July 2011 asking for the Claimant's case to be expedited as a matter of urgency. On 18^th September 2011 the Defendant granted the Claimant and his dependents discretionary leave to remain and this information was conveyed to Mr Timms MP by letter dated 4^th October 2011 and the Claimant received Immigration Service documents showing the discretionary grant of leave on 25^th November 2011.

Relevant Background and Law

16. On 25^th July 2006 United Kingdom Borders Agency announced the launch of a programme to resolve a backlog of unresolved claims for asylum. The Casework Resolution Directorate (CRD) was set up. The system of operation of what became known as the Legacy scheme or Legacy arrangements has been described in a number of recent cases including, most relevantly for these purposes, by Mr Justice King in R (Geraldo, Aroun & Iqbal) v. SSHD [2013] EWHC 2763 (Admin) hereafter Geraldo) at [39-45] The essential features of Legacy were:

i) A total caseload of about 500,500 cases was outstanding in 2007. They each had to be reviewed. Some required no decision, for example where the claimant had since died or obtained European citizenship but these had to be sifted out. Decisions had to be made on live cases.

ii) The programme was operational only in that it was a concerted effort to deal with the backlog by providing extra manpower and resources, it was not an amnesty and there was no discrete 'Legacy policy'. Immigration decisions were made on the basis of prevailing law at the time. Legacy did not create any new substantive rights or new basis for the grant of leave.

iii) Cases were concluded only when either leave was granted or removal was ensured. Cases were progressed according to four published priorities (cases where the individual concerned posed a risk to the public, those in receipt of public support, where a decision was likely to be made to grant leave and cases where the individual could be easily removed from the UK.). However the CRD retained discretion to deal with exceptional or compassionate cases out of turn.

17. Where discretionary or indefinite leave was granted it was done as a result of the application of then current law. Where the applicant did not gain leave on the basis of the specific criteria required the Defendant also had to consider whether their case fell into any of the general consideration which would prevent removal namely Chapter 53 of the Enforcement Guidance Instructions (EIG) and paragraph 395C of the Immigration Rules.
18. In terms of prioritising cases in addition to the four priority categories referred to above the Defendant provided a set of instructions to its caseworkers called 'Case Resolution Directorate – Priorities and Exceptional Circumstances' ('the instructions') allowing caseworkers to expedite a case in exceptional circumstances. An exceptional circumstances table was provided. It was made clear that if a case was dealt with expeditiously because the caseworker decided to treat it as exceptional (and gained the authority of a senior caseworker to do so) that did not mean an automatic grant of leave should be made. The case still needed to be assessed 'in the usual way.'
19. Within the table of exceptional circumstances in the instructions were the following (extract)

Case Type	Explanation
Undertaking previously given to the constituency MP or in a JR case	You should expedite a case if the Border and Immigration Agency has given and undertaking to consider or to make a decision on a particular case and this has not been done and a Senior Caseworker agrees
Outstanding asylum claim	You should expedite a case if an initial decision has not been made on the asylum case

20. It was also made clear that the table was not exhaustive but that very few other circumstances were anticipated in which cases should be expedited.
21. A Freedom of Information request made in March 2011 resulted in statistics being disclosed which showed that up to 19^th January 2011 of the cases granted leave under Legacy, 97% were granted indefinite leave to remain (ILR) that is 145, 843 cases, a further 3,405 were granted discretionary leave to remain and 439 were given humanitarian protection.
22. In Hakemi v SSHD [2012] EWHC 1967 (Admin) Mr Justice Burton examined the operation of the Legacy programme and decided that the policy and practice were clear and that there was no special Legacy route to grant of leave.
23. In Geraldo (supra) the three Claimants had asylum claims extant at the time that the Discretionary Leave ('DL policy') came into effect on 20^th July 2011 and when decisions were made in their cases by the Case Assurance and Audit Unit they were granted DLR rather than ILR. Their challenge to those decisions was unsuccessful. The court accepted submissions made on behalf of the Defendant, repeated by Miss Anderson to me in this case, that the difference to the individual Claimants between the two sorts of leave is not of sufficient magnitude as to given rise to any real injustice in the circumstances of each case. None of the Claimants in Geraldo had any 'rights' basis to remain in the UK each having been granted leave outside the Immigration Rules. Each would be entitled to apply for a further period of leave after 3 years and if they continued to qualify for leave, such further leave would be granted and after two periods of 3 years each will be able to apply for settlement. The court refused to allow the application for judicial review quashing the Defendant's decisions in each case and for a mandatory order directing the Defendant to grant each Claimant ILR on the basis that there was 'historic injustice' in the failure of the Defendant to make decisions on the Claimants' cases prior to 2oth Jul 2011 and a further failure of the Defendant to correct the historic injustice when she could have done by granting ILR rather than DLR.
24. Mr Justice King translated these arguments into legal principle as a challenge to the lawfulness/rationality of the decisions because the historic injustice was a relevant factor which should have been taken into account when the decisions were made on the Claimant's cases. He said:

"28. The line of authority here relied upon is that beginning with the Court of Appeal decision in R (Rashid) v SSHD [2005] EWCA Civ 744 as further considered in, amongst other cases, R (S) v SSHD [2007] EWCA Civ 546 Other cases on 'correcting historic injustice' cited to me included AA (Afghanistan) v SSHD [2007] EWCA Civ 12; R (on the application of S, H and Q) v SSHD [2009] EWCA Civ 142; SL (Vietnam) v SSHD [2010] EWCA Civ 225; KA (Afghanistan) v SSHD [2012] EWCA Civ 1014; EU (Afghanistan) v SSHD [2013] EWCA Civ 32; Mohammed v SSHD [2012] EWHC 3091.

29. What is clear from all these authorities in my judgment however is that (i) the historic injustice must be based upon some prior illegality (in all these cases there was either a legally flawed prior decision, in some instances such as in Rashid by reason of a decision made in disregard of a relevant policy, or at least a legally flawed failure to carry out a duty, as in KA, which impacted upon the ability of the applicant to make out an asylum claim) and there must be sufficient causal connection between that illegality and the alleged historic injustice caused thereby, and the alleged prejudice caused to the claimant by the decision under challenge to justify the intervention of the court. Considerations of 'conspicuous unfairness' are not in themselves a relevant test to trigger the intervention of the court, although the degree of prejudice may be a relevant factor when it comes to the question of remedy.

30. Further on the question of remedy, the same line of authority makes clear that this court has no power to direct the Secretary of State how to exercise her discretion under section 4(1) of the 1971 Act. It has no power to order the defendant to make a grant of ILR to these claimants. At most the court, if it considered that the exercise of discretion had been vitiated by the failure to take account of 'an historic injustice' in the way contended, would be enabled to quash the material decisions and remit the case to the defendant for reconsideration. At its highest, the power of the court would be to indicate how it expected the discretion to be exercised if it considered the circumstances to be so compelling that no reasonable Secretary of State could conclude otherwise…….

31. The whole basis of this 'historic injustice' challenge is accordingly the alleged commitment of the defendant to deal with the cases by a specific date (19 July 2011) rather than say the end of July 2011 (since at any date after 19^th July the new policy would be in force); or in the alternative, the proposition that any delay in deciding the cases after the 19^th July, rather than after say the end of July, would amount to unlawful delay in public law terms. "

25. In SH (Iran) & others v SSHD [2014] EWCA Civ 1469 a number of Legacy cases were considered by the Court of Appeal. This decision is binding on me and it disposes of all the underlying submissions in this case. The principal argument was that the SSHD had an obligation to 'conclude' Legacy cases by either granting leave to remain or by effecting removal of the applicant from the United Kingdom. As none of the applicants had been removed they argued that they were each entitled to leave or at least a decision on the grant of leave. Lord Justice Davis said [36, 37],

"…mere delay in dealing with a case falling within the legacy programme cannot of itself give rise to any expectation or entitlement that relief should be granted as though the case had been dealt with what is asserted to be reasonable expedition. Delay and maladministration (if any) are, it must be emphasised, not to be equated with unlawfulness. There hafe been numerous cases where the courts have rightly rejected an argument by a person within the legacy programmed to the effect that: 'If only my case had been dealt with earlier, as it should have been, I would have been granted leave to remain of a certain kind.' The exceptional situation that arose in cases such as Rashid [2005] INLR 550 and R(S) v Secretary of State for the Home Department [2007] INLR 450 requires that "conspicuous unfairness" amounting to illegality needs to be shown, going above mere maladministration or delay.

…there is, in the ordinary way, no occasion, in a context such as the present for some kind of separate application of the doctrine of legitimate expectation. Put simply, the relevant legitimate expectation is that an applicant under the legacy programme will have his case treated in accordance with the law and policy applicable at the time of the relevant decision."

26. At paragraph 52 Lord Justice Davis quoted with approval from the decision of Mr Justice Ouseley in Jaku, Prenga & Khaled v SSHD [2014] EWHC 605 (Admin) [6];

"At the heart of much of the litigation over the years have been eventually largely fruitless and in my judgment misconceived attempts by Claimants to show that there was a special and more favourable policy which should be applied to those in the Legacy Programme, derived from a target or aim as a legitimate expectation; missing it was said to creation unlawful delay such as to create an historic injustice, leading to arguments that particular forms of leave should have been granted, that policies should be treated as frozen, that particular periods of residence should be given greater weight, all deriving from a misreading of policy and especially of alleged policy documents at a level below the EIG."

The Claimant's Submissions

27. The Claimant's submissions were succinctly put in argument:

i) This is not a typical 'Legacy case'. The Defendant having told the Claimant's MP his case would be prioritised, it was not. The decision granting DLR was made 2 years and 9 months after the promise. Self-evidently there is no sign of priority/urgency or expedition.

ii) Given the statistics the Claimant would most probably have achieved ILR had the decision been made prior to 20^th July 2011. So failure to consider Claimant's case earlier was to his prejudice. Although the Claimant's case was superficially like that of the Claimants in Geraldo his case could be distinguished because of the very specific promise made to his Member of Parliament. Indeed this specific promise distinguished the Claimant from others who had also failed in their applications for judicial review in similar circumstances such as Karwan v SSHD [2013] EWHC 2794 (Admin) and Mohammed v SSHC [2014] EWHC 98 (Admin).

iii) There is issue of delay following an express undertaking to prioritise. Prioritisation must mean something, a decision within a reasonable period of time, the near future and not almost three years into the future

iv) Although showing detriment is not a necessary component the delay had an impact on the Claimant's and his wife's health causing depression. He had had a heart attack.

v) Reliance was placed on the single case cited to me in which the Claimant did achieve the essential redress sought by this Claimant namely a mandatory order to the Secretary of State for the Home Department for her to grant ILR, Kadyamarunga v SSHD [2014] EWHC 301 (Admin). Miss Chapman conceded that it was an unusual case decided on a narrow issue of fact namely, had the Defendant sent a letter to the Claimant which gave her an unequivocal promise that a decision in her case would be made by 20^th July 2011? The letter could not be produced in time for the hearing and was at that time believed lost. Mr Justice Green made a finding that an unequivocal promise was made and breached. While Miss Chapman recognised that in this Claimant's case there is no promise of a decision by a particular date she submits that the court should construe the failure to accord priority as promised in the same way that a failure to provide a decision by a specific date was construed in Kadyamarunga.

vi) Finally, the Claimant relies on the views of John Vine CBE QPM, Independent Chief Inspector of Borders and Immigration expressed in his report of an inspection during March to July 20012. To summarise, he formed the view that when the DL policy was introduced it was said to be still the Defendant's intention that caseworkers retained a discretion to grant ILR but that when guidance was issued to them caseworkers were not informed of this discretion until November 2011 ie after the decision in the Claimant's case had already been made. In the absence of such guidance the Claimant urges to me to find that the Defendant must have fettered her right, through her caseworkers, to grant ILR in his case.

The Defendant's Submissions

28. Miss Anderson has appeared for the Defendant in a number of recent relevant cases including Jaku and SH (Iran). She argued:

i) This is a typical 'Legacy' case. There is no basis in law for the illegality which is a pre-requisite for court to intervene. Claimants who rely on a failure to make a decision before the introduction of the DL policy, but who received DLR later have all failed except the anomalous and unsatisfactory case of Kadyamarunga. Lack of illegality should lead to the failure of this Claimant's case similarly on the legitimate expectation/historical injustice ground and also the alleged absence of discretion when the decision was actually made. Generally of course the Secretary of State must follow her policies unless there is very good reason to depart from a relevant applicable policy. The relevant applicable policy is the one in existence at the time of the decision being made.

ii) This Claimant should not have been given priority on the basis of exceptional circumstances at all. The decision recorded in the GCID notes and the December 2008 letter sent to the MP was an error and a piece of maladministration.

iii) It appears that the Claimant was given priority on the basis that his initial asylum claim had not been decided. The GCID notes refer to the 22^nd May 2003 claim and suggest it was thought that claim was still outstanding. This was simply wrong; the Claimant had been removed to Germany the claim having failed on safe Third Country grounds. The prioritisation within the Legacy arrangements was done on the information in the database not by pulling the entire file which would have revealed the full picture. That information was available when the decision to grant DLR was made but not when the prioritisation was given. The decision to prioritise was made on false basis. There was no outstanding asylum claim in this case at all. The Claimant's solicitors' letter in 2004 could not be an effective asylum claim because it was not in person as required at that time. The Defendant conceded, after some initial doubt, that the letter was received but the Claimant should and could have made the asylum claim properly in accordance with relevant procedures. Miss Anderson suggested that the reason this was not done was because the Claimant hoped he could do better by relying on the Legacy scheme. He knew that his application under the family amnesty had been rejected.

iv) In respect of the involvement of Mr Stephen Timms MP the first letter to him indicated the Claimant was being given priority status. The GCID notes included a reference to the letter. But that prioritisation could not have been as a result of the MP's letter because it was the first letter he had written rather than 'an undertaking previously given to the constituency MP…'

v) In any even the correct interpretation of 'priority' means priority in the Legacy system and no more than that: priority simply means priority in the order, being put nearer the front of a very long queue. When CAAU took on the remaining post Legacy cases with less resources that Unit worked through what could be termed, 'the legacy from Legacy'.

vi) When the Claimant was granted DLR the GCID notes show that the same mistake, namely a belief on the part of the Defendant that he had an outstanding asylum claim, was made. The Claimant has thus had the benefit of that incorrect position on two occasions.

vii) In Kadyamarunga the facts were very different and the decision contains no statement of principle with wider application. The court was not assisted in that case by what turned out to be a wrong (unjustified) concession in paragraph 1 of the judgment, the failure of the SSHD to file an Acknowledgment of Service and her failure to provide the file to the court so that it was considered lost when in fact it was not lost. Miss Anderson also told me that the letter relied on by the Claimant in that case, thought to be lost, was found in due course and her recollection of its contents was inaccurate. I can find no assistance for the Claimant's case in this very fact specific decision.

Analysis

29. In essence this claim can be summed up as a single point: the Defendant has unlawfully delayed making a decision in the Claimant's case until 28^th September 2011, despite a specific promise that she would treat his case as a priority within the Legacy arrangements. She has hereby unlawfully deprived the Claimant of the likelihood that he and his dependents would have been granted indefinite leave to remain during the Legacy arrangements.
30. The difficulty for the Claimant is that all the recent case-law is against his claim. The only factual distinction in his case is the letter to his MP, Mr Stephen Timms in December 2009 which promises unequivocally, that his case will be considered as a priority. Does that factual distinction bear on the principles now very well established in this type of claim? In my judgment it does not.
31. On the evidence it is plain that the Claimant and his dependents obtained, at most, an assurance that his case would be treated as a priority but in fact this assurance was not in accordance with any Policy or instructions provided by the Defendant. The caseworker and/or Senior caseworker who took the decision as expressed in the December 2009 letter to the Claimant's Member of Parliament was under the misapprehension that there was an outstanding asylum claim from 2003. There was not. The Claimant had been removed to Germany. Nor was there in fact any outstanding claim for asylum from 2004 because the Claimant did not make a valid claim for asylum in person on his return to the UK. Miss Chapman tried to persuade me that the Defendant should have treated his solicitor's letter as a proper claim for asylum or the Defendant should have contacted the Claimant to point out that he had to make his claim in person however it is clear from the relevant instructions that where a postal application comes from an individual it should be sent back with a Rejection of Postal Claim letter and the would-be claimant should be asked to attend in person. There is no such provision when the written claim comes from legal representatives. It follows that the priority classification was in error or a piece of maladministration.
32. Failure to act in accordance with the promise did not, in the circumstances, lead to historical injustice in the Claimant's case for the following reasons:

i) There was no entitlement to any decision whatsoever in fact because the Claimant was a failed asylum seeker who had returned without permission and was not entitled to remain in the country awaiting any decision at all.

ii) Even if he had had an outstanding asylum claim (which led to no rights basis for leave), the purely discretionary basis for granting leave under Chapter 53 EIG does not give rise to an entitlement to leave such as to generate an illegality.

iii) The delay was taken into account in any event, in granting him DLR in 2011, again on the mistaken ground that he had an outstanding claim for asylum and he has obtained leave albeit not his preferred form of leave.

33. Secondly, even if the priority classification had been given properly it did no more than offer the Claimant progress towards a decision by way of priority over some other cases. Even if reached as a priority case it did not give him a date by which a decision would be made nor did it guarantee which decision it would be. The decision could have been one of removal or it might have been of leave of one kind or another.
34. The decision granting DLR in 2011 was the first decision the Claimant was entitled to. It was decided properly under the law and policy at the time. There can be no illegality in denying an entitlement to a decision any earlier if in fact no such entitlement existed. Geraldo makes clear that even though it may be likely that the Claimant and his dependents would have been granted ILR had a decision been made in his case earlier that 20^th July 2011 that does not convert him into someone who had an entitlement to a decision, let alone a decision of ILR, of which he has unlawfully be deprived.
35. As for the argument that the decision to grant DLR was made at a time when the Defendant had fettered her caseworker's discretion to grant ILR this has also been given short shrift in recent decisions including Jaku at paragraph 42, 43 and 64 and in Geraldo at paragraph 75. In short Chief Inspector Vine's remit is to examine administrative efficiency and report thoroughly and dispassionately on it. His observations and conclusions do not have the status of legal interpretation of policy especially where, as here, his view was contradicted by the Defendant in evidence provided to those courts. Guidance as to what approach the caseworkers should take to cases in which a written promise to deal with the case before 20^th July 2011 had been made does not apply to this Claim in any event as there was no such promise.
36. It is not necessary for me to consider the additional arguments made to me that the Court would not have had any power to make a mandatory order against the Defendant requiring her to grant ILR.
37. I do note that the Claimant and his dependents are now at the end of their first three year period of DLR and are presently awaiting a further decision from the Secretary of State. I see no basis for this court seeking to interfere in any way with the making of that decision.

Conclusion

38. The claim for judicial review is dismissed on all grounds. In my judgment there is an absence of illegality upon which it is necessary for the court to intervene.
39. In light of the fact that the case has been decided on the basis of recent case-law including from the Court of Appeal and that permission was granted to argue the claim I intend to make no order for costs and for the Claimants' reasonable legally funded costs to be assessed in detail in the usual way. If either party wishes to make short submissions on costs I will consider them in writing if received within 28 days of this judgment.