Aberaham v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lewis |
| Judgment Date | 25 June 2013 |
| Neutral Citation | [2013] EWHC 3334 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/528/2012 |
| Date | 25 June 2013 |
[2013] EWHC 3334 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Lewis
CO/528/2012
Mr P Turner (instructed by Barnes, Harrild & Dyer Solicitors) appeared on behalf of the Claimant
Mr R Kohli (instructed by the Treasury Solicitors) appeared on behalf of the Defendant
This is a renewed application for permission. It has a complicated procedural background. The claimant is an Ethiopian national. She came to the United Kingdom in about August 2004. She applied for asylum in about September 2004, and that was refused. An appeal against that decision was, it seems, dismissed.
In any event, the claimant made a further application in February 2010. That application was refused in a very detailed letter of 16 September 2010. There was a further application, it seems, in about October 2010, and that appears to have been refused, and there was a decision that it was not a fresh claim. That seemed to have happened in March 2011, but there appears to be no challenge in relation to the March 2011 decision.
The claimant brought proceedings in January 2012, alleging that she had not had a decision under the legacy scheme and also that she had not had a decision on the 15 February 2010 asylum claim. Permission was refused on the papers. There was an oral hearing before Mr Justice Burton. The judge adjourned the application. It appears he was about to give judgment in the well known case of Hakemi. He stayed the consideration of the renewal application for eight months, and the claimant now applies to renew again.
In his very full and very helpful skeleton, Mr Turner for the claimant, set out in his introduction the two matters that he is seeking to challenge. At 1.1 he describes it as the ongoing failure to consider her case under the legacy casework criteria, and at 1.2 the ongoing failure of her refusal to consider her fresh claim of 15 February 2010.
In the skeleton, and this reflects the amended grounds, the claim is brought three ways. It is summarised at paragraph 21 of the skeleton argument in this way:
"The claimant has never received any decision in respect of her case having been considered under the legacy casework programme. The claimant has further obtained a Home Office file and there is no evidence on that file that her case was ever considered by the Case Resolution Directorate of Case Assurance and Audit Unit applying the legacy criteria; that is a consideration of both paragraph 359C of the immigration rules and chapter 53 of the enforcement instruction guidance. It follows that her case has not been considered under the legacy scheme."
He then develops that submission under three broad grounds.
The first is that the claimant had an expectation that her case would be considered under what he described as the legacy scheme and she had an expectation that she would be granted leave. That is set out at paragraphs 26 to 60 of his skeleton argument and that, as I say, reflects the amended grounds.
The second ground is that the letter of 10 January 2012 from Secretary of State is wrong when it states there is no record of any outstanding applications. The skeleton argument says at paragraph 62 it is wrong because there was an application made in person on 15 February 2010, and that had been not decided.
Thirdly, there is a claim that the failure to resolve the claimant's status is a breach of article 8 of the European Convention on Human Rights, and it is expanded on in paragraph 72 and following of the claimants skeleton argument.
In his extended and very helpful oral submissions, Mr Turner summarised his submissions in the following five ways. First, this case has never been considered by the Case Resolution Directorate or its successor. He says that is important, not least because they would have had training and so on about the way in which such cases were to be dealt with.
Secondly, he says that the decision of 16 September 2010 was not in fact a lawful consideration because it did not refer to and did not have regard to the factors that would be listed in the enforcement guidance or 259C of the immigration rules.
Thirdly, Mr Turner says that the claimant had an expectation that the defendant would do what she promised to do in her letter of 10 January 2012; that is either grant leave or remove her. The claimant has not been granted leave and she has not in fact been removed and therefore it said that the expectation of the grant of leave remains.
Fourthly, it is said on 8 April 2011, the claimant made fresh representations by letter, and I will come back to that later. And, fifthly, it is said that because of the additional period, time that has now passed, someone, he says, ought to look at her case, applying the current law and policy. Given the length of time and the medical evidence, this is likely to be a case where the claimant would be granted leave to remain.
First, by way of preliminary observation, the use of the phrase "legacy" in considering the case under the "legacy policy" or the "legacy arrangements," needs to be carefully considered. There were arrangements made to deal with cases where asylum had been claimed before a particular date, I think 5 March 2007, and where the case had not been concluded in the sense that there were either outstanding applications to be considered or removal had not yet been effected. The aim was to bring those cases to a resolution either by taking a decision on the outstanding applications and granting them leave or by moving towards the removal of the individual from the United Kingdom.
The use of the phase "legacy" or "legacy arrangements" was not itself intended to indicate that a person was entitled to a grant of leave to remain simply because his or her case was to be processed under the arrangements that have come to be called the "legacy arrangements."
Secondly, at most, what the claimant can say is that as a matter of policy, the defendant would, at some stage, consider the factors which appear in the Immigration Rules 395C and the enforcement guidance which deals with factors like length of residence and whether or not there has been a failure to comply with the requirement of the immigration authorities. Whether or not the claimant would ultimately be removed, or whether or not a claimant would be granted leave to remain, depends on all the facts of the particular case.
So against that background, I turn then to the facts of this case. It seems to me that as at September 2010, the claimant's case did fall within the set of arrangements called legacy arrangements, as she had first made an application for asylum before 5 March 2007. She made a further application for asylum in person in February 2010, and that application was considered very carefully and rejected on 16 September 2010. In addition, the defendant did consider very carefully the length of residence and whether there were any other circumstances that outweighed the length of residence.
At page 8 and 9 of the letter, for example, it says this:
"Regard has been had to your length of residence in the United Kingdom. It is noted that you have been in the United Kingdom for only six years. However, as outlined below, you failed to maintain contact with the Home Office for a substantial period of this...
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