Anna L v Circuit Court in Katowice Poland

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Mitting,Mr Justice King
Judgment Date06 Sep 2013
Neutral Citation[2013] EWHC 2703 (Admin),[2013] EWHC 2763 (Admin)
Docket NumberCO/3556/2013,Case No: CO/5595/2012, CO/9078/2012 & CO/7988/2012

[2013] EWHC 2703 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT (LEEDS)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice King

Case No: CO/5595/2012, CO/9078/2012 & CO/7988/2012

Between:
The Queen on the Application of Samuel Geraldo Lyes Aroun Mohammed Iqbal
Claimant
and
Secretary of State for the Home Department
Defendant

Mr Raza Husain QC and Mr Alasdair Mackenzie (instructed by Birnberg Pierce & Partners) for the First Claimant

Mr Raza Husain QC and Ms Melanie Plimmer (instructed by Parker Rhodes Hickmotts) for the Second and Third Claimants

Ms Julie Anderson (instructed by The Treasury Solicitor) for the Defendant

Hearing dates: 18 th– 21 st and 28 th June 2013

Approved Judgment

Mr Justice King
1

Each of these 3 claimants is a failed asylum seeker who has exhausted all appeal rights. Each seeks to challenge a grant in 2012 made by the defendant outside the Immigration Rules in exercise of her general discretion under section 4(1) of the Immigration Act 1971, of 3 years Discretionary Leave to Remain (DLR) in the United Kingdom. Such grants were made by the caseworker concerned using the then current guidance in chapter 53 of the Enforcement Instructions and Guidance (EIG). Such grants were made respectively on the 1 March 2012 (first claimant, Geraldo), 24 May 2012 (the second claimant Aroun) and 1 May 2012 (the third claimant, Iqbal). The principal remedy sought by each is one quashing these respective decisions and a mandatory order directing that the defendant make a grant instead of Indefinite Leave to Remain (ILR).

2

The hearing before me has been a 'rolled–up' hearing pursuant to previous orders of the court.

3

Although these individual cases are necessarily fact-specific, each is a case which fell within the backlog of cases where the claim for asylum had been made prior to 5 March 2007, being handled by the defendant through the Case Resolution Directorate (CRD) until it was closed in 2011 and all outstanding legacy cases under the so called legacy programme transferred to the Case Assurance and Audit Unit (CAAU). The essence of their claims is that each ' should have been' dealt with under the programme by at the latest the 19 th July 2011, up until when it is said the defendant's policy under the programme was to grant any 'legacy' individual who was not to be removed from the UK, ILR; that had each been considered by that date each would have been granted ILR; that because of the failure to decide their cases by that date, each has been caught to his detriment by a change of policy by the defendant introduced on the 20 th July 2011 to grant only DLR in such cases.

4

It is important to note at the outset that these are not challenges to a refusal of leave but to the length of leave granted. As an overall rejoinder to the claims, the defendant submits that the difference to the individual claimants between the two grants of leave is not in any event of such magnitude as to give rise to any real injustice in the circumstances of these cases. None has any 'rights' basis to remain in the UK, in particular none has any established protection-based or family/private life basis to remain, each having been granted leave to remain outside the Rules on the basis that removal has been decided not to be appropriate. Under the Discretionary Leave (DL) policy applicable to their cases each will be able to apply for further leave to remain after 3 years. If they continue to qualify for leave, such further leave will be granted and after 2 periods of 3 years DL each will be able to apply for settlement. The claimants say there is a real difference: an immediate grant of ILR brings with it the security of an entitlement to remain in the UK permanently without the need for further applications which carry no presumption of a successful outcome and provides a swifter path to citizenship affecting not only the individual claimant but any children.

The Facts

5

I was provided with a chronology applicable to each individual claimant. For present purposes it is sufficient if I highlight the following facts in respect of each.

Mr Geraldo

6

The first claimant is a national of the Democratic Republic of Congo born on the 28 th July 1983. He claimed asylum on the 12 th April 2003 having claimed to have entered the UK the day before. Asylum was refused on 25 th May 2003. An appeal was unsuccessful and all appeal rights were exhausted on 20 th January 2004. As far as the CRD was concerned, his solicitors were the firm of Tuckers to whom they wrote in June 2010 (enclosing a letter in standard 'legacy questionnaire' form to the claimant at an old address from which he had moved) advising that his case was in the legacy programme. However Tuckers were no longer his solicitors, his interests by then being looked after by the Wandsworth and Merton Law Centre (WLC) who did in fact not long thereafter (19 October 2010) write to the defendant's Legacy department inviting the defendant to consider his case 'under the legacy cases'.

7

Mr Geraldo's immigration history is then complicated by the fact that he was at some stage prior to 2010 granted a five year residence permit pursuant to EU based rights. This was along with his mother and siblings on the basis of his being a family member of an EEA national resident in the UK, namely his Dutch stepfather. He had in that capacity been included in his mother's application by letter dated 22 December 2009 for recognition of a permanent right of residence in the UK under EU law. There was during the course of the hearings before me a factual mystery as to the date that permit came to be issued. In 2011, by letter dated 9 December, the claimant's solicitors (in a letter of complaint to the legal ombudsman) had asserted that the permit was valid from 11 January 2007 until 11 January 2012 whereas the only copy documentation then in the court bundle was a letter from the Home Office Immigration and Nationality Directorate (IND) date stamped 30 January 2006 (although purportedly dated 31 March 2005), purportedly enclosing the material permit accordingly suggesting that the permit ran until January 2011. Further investigations on the part of the defendant since the close of the hearing however have disclosed that the claimant's January 2006 permit was revoked in December 2006 but reinstated from January 2007 thereby in truth expiring in January 2012.

8

The relevance of all this to the present proceedings is the defendant's evidence, through Mr Forshaw and Mr Bray, that this claimant's case would not in normal circumstances have fallen for review under the legacy programme, whilst he had extant leave to remain, in this instance pursuant to EU law. However the issue of for how long this claimant had such an extant right pursuant to EU law is further complicated by the fact that in early 2010 (19 February 2010) his stepfather died and it is common ground that whatever the expiry date of the residence permit, the claimant could thereafter have no extant EU based right to remain unless he were a dependant of the EU national at the time of his death which it would appear the claimant was going to have difficulty in establishing. In 2008 at the latest he had ceased to be a member of the stepfather's family when he had started living with his girlfriend, another DRC national, by whom he had a child in November 2008. Indeed it is known that by letter from the claimant's solicitors dated 29 th April 2010 to the EU casework section of the UKBA the claimant's name had been removed from the EU permanent residence application (although that application of his mother and siblings did eventually succeed following an appeal on the basis that they had acquired a permanent right of residence before the material death).

9

Just to complicate matters further when on the 19 October 2010 the claimant's then solicitors (WLC) wrote to the 'legacy department' of the UKBA asking for consideration of his status 'under the legacy cases' they also referred to the previous family EEA application, to the complication of the 'eventual death of the qualified family member' and asserted that ' we are separately making a submission that Mr Geraldo himself has an automatic right to permanent residence' and they were making this separately ' because his case has the added need to demonstrate dependence at the time of the qualified family member's death'. No such further separate application was in fact made but the point being made by the defendant in this context is that any review prior to 19 July 2011 would have necessitated further investigation of the claimant's factual position and then his legal status arising as a result which would have been bound to have taken some time. The point again being made by the defendant was that any consideration of the question as to what would or might have been the outcome, had the claimants' cases been reviewed earlier than they were, would have to look to what a caseworker 'would or should have known if appraised of the facts' and what would have been seen on the CRD database available to the caseworker was the fact of a residence permit which would have needed further investigation. Although originally it would appear that the CRD were not aware of the residence permit (evidently Mr Geraldo had ticked the box on his EEA appeal saying that he had made no other applications and did not provide the HO reference for his asylum application so the 2 different claims were not married up), the fact of the grant of the five year permit in July 2006 certainly came to their attention when WLC in their letter of...

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