In Reclaiming Motion By D.m. V. The Secretary Of State For The Homde Department For Judicial Review Of The Failure Of The Respondent To Grant The Petitioner Indefinite Leav Eto Remai
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Drummond Young,Lord Wheatley |
| Judgment Date | 25 March 2014 |
| Neutral Citation | [2014] CSIH 29 |
| Court | Court of Session |
| Date | 25 March 2014 |
| Published date | 25 March 2014 |
| Docket Number | P1212/12 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| [2014] CSIH 29 | |
| Lady Paton Lord Drummond Young Lord Wheatley | P1212/12 OPINION OF THE COURT delivered by LORD DRUMMOND YOUNG in the reclaiming motion by DM Petitioner and Reclaimer; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: for Judicial Review of the failure of the respondent to grant the petitioner indefinite leave to remain in the United Kingdom _______________ |
Alt: Pirie; Office of the Advocate General
25 March 2014
[1] The reclaimer is a citizen of Algeria, born in 1970. He arrived in the United Kingdom during 1998 and claimed asylum on 4 December of that year. His application for asylum was refused following two failures to attend for screening interviews. An order for his removal was made, against which he appealed. He failed to attend the appeal hearing on 31 October 2000 and accordingly his appeal was dismissed. In August 1998 he had married a British citizen, and in 2001 he obtained leave to remain on the basis of that marriage. His marriage broke down in 2002 and his leave to remain expired on 12 December 2002. He remained in the United Kingdom thereafter, but did not maintain contact with the immigration authorities until 29 May 2009, when solicitors acting for him applied for discretionary leave to remain. This was based on two grounds: first, article 8 of the European Convention on Human Rights; and secondly a claim that the reclaimer's application should be considered or reconsidered in the light of a policy announced by the Home Secretary in July 2006 in order to resolve long-standing claims for asylum and leave to remain in the United Kingdom .
[2] On 31 August 2012 the Home Secretary decided to grant the reclaimer discretionary leave to remain in the United Kingdom. The discretionary leave that has been granted is not indefinite leave to remain; it is for three years only and will expire on 30 August 2015. Under the present policy, however, in August 2015 discretionary leave for another three years may be granted, and after that has expired, in 2018, indefinite leave to remain is likely to be granted. The reclaimer has brought proceedings for judicial review to challenge the decision to grant discretionary leave to remain; by way of remedy he seeks declarator that he is entitled to indefinite leave to remain in the United Kingdom. He avers, in summary, that certain statements made by the Home Secretary and his representatives in July 2006 and subsequently contained an undertaking that the backlog of applications for leave to remain that existed at this time would be dealt with within five years, by 19 July 2011. Those statements gave rise to a legitimate expectation on the reclaimer's part that the claim made on his behalf in May 2009 should be considered by 19 July 2011. The claim was not in fact responded to until 14 November 2011, with leave being granted on 31 August 2012. In failing to consider the reclaimer's application fully by 19 July 2011 the Home Secretary, it is said, breached the reclaimer's legitimate expectation that his claim would be decided by 19 July 2011 or, if that did not occur, decided in accordance with the policy that applied before that date. If the reclaimer's application had been considered under that policy, by July 2011, it is said, he would have been granted indefinite leave to remain rather than discretionary leave.
[3] Detailed averments are made in support of that last contention. Under the policy introduced in 2006, a body known as the Casework Resolution Directorate was set up within the United Kingdom Border Agency (UKBA) in order to deal with a serious backlog of claims, principally for asylum, which had not been resolved by either removing the applicant or permitting him or her to remain in the United Kingdom. The Casework Resolution Directorate reviewed cases by considering factors set out in rule 395C of the Immigration Rules in accordance with published instructions and guidance given to them. Rule 395C listed various factors that were relevant in deciding whether or not a decision to remove should be made; existence of one or more of the enumerated factors tended in favour of non-removal. The averments relating to the instructions and guidance and attendant policy are not wholly clear, but for present purposes it is sufficient to say that the reclaimer avers that in practice almost all who were granted leave to remain under rule 395C were granted indefinite leave to remain during the period when the 2006 Policy was in force. In July 2011, however, it is averred that the Home Secretary amended the policy on leave to remain; thereafter a successful applicant would be granted three years leave to remain, followed by a further three years, before indefinite leave to remain could be granted. When the reclaimer's case was decided, it was that amended policy that was applied.
The parties' arguments
[4] The argument for the reclaimer is that his case should have been decided in accordance with the policy that applied between 2006 and 19 July 2011. On that basis he should have received indefinite leave to remain when his case was finally decided in August 2012. This argument was based on Parliamentary and other statements made in July 2006 which, it was claimed, amounted to a promise that the backlog of applications for asylum and leave to remain that existed at that time, generally referred to as "legacy" cases, would all be decided within five years of 25 July 2006 (or possibly within five years of 19 July 2006, when the new policy was first announced). The reclaimer accordingly had a legitimate expectation that his case would be decided prior to 20 July 2011 in accordance with the policy that then applied, or if it were decided subsequently the decision would be in accordance with the earlier policy. Inherent in this argument is the proposition that the Parliamentary statements amounted to a promise to deal with all "legacy" cases by July 2011. It is that promise that is said to have given rise to the legitimate expectation. It is further submitted that the practice followed by the Home Secretary during the period between July 2006 and July 2011 of itself gave rise to a legitimate expectation that he would be granted indefinite leave to remain, rather than limited discretionary leave.
[5] For the Home Secretary it is argued that the Parliamentary and other statements cannot reasonably be construed as containing a promise, as against a statement of aspiration, with the result that the reclaimer cannot found on any legitimate expectation. It is further submitted that even if the Parliamentary statements amounted to a promise the reclaimer could not found on it because he was unaware of them; and further that any denial of a legitimate expectation in a case such as the present is not unlawful. In addition, it is argued for the Home Secretary that the reclaimer had an alternative remedy to judicial review in the form of an appeal to the First-tier Tribunal against the decision to grant discretionary leave to remain, and that in any event the remedies sought in the present petition should be refused because proceedings were not raised promptly. Finally, it is argued that the reclaimer had failed to establish any practice followed during the period between July 2006 and July 2011 such as to create a legitimate expectation that indefinite leave to remain would be granted after July 2011.
The Lord Ordinary's decision
[6] The Lord Ordinary refused the prayer of the petition. He held, first, that the Parliamentary statements did not constitute a promise that all "legacy" cases would be dealt with within five years of 25 July 2006; the statements were rather aspirational. In relation to practice prior to July 2011, the Lord Ordinary held that the reclaimer had failed to establish that there was any practice of granting indefinite leave to remain in cases where rule 395C applied which was so unambiguous, so widespread, so well-established and so well-recognized as to carry a commitment to legacy claimants that its continuance was assured. It followed that, in accordance with the standard principle, the Home Secretary's decision fell to be made in accordance with the law, policy and practice of the time when the decision was made. On that basis, the Home Secretary's decision made on 31 August 2012 could not be criticized. The Lord Ordinary further upheld the argument for the Home Secretary that the matters raised in the present petition could have been the subject of an appeal to the First-tier Tribunal; consequently the reclaimer had failed to exhaust an available remedy. Finally, on the reclaimer's argument that he had a legitimate expectation that his case would be decided in accordance with the law, policy and practice that had been applied prior to July 2011, none of the ministerial or other statements founded upon contained a promise that all "legacy" cases would be decided in that way.
The Parliamentary and other statements regarding the "legacy"
[7] The statements made by the Home Secretary and others in respect of the "legacy" cases are central to the reclaimer's case. For that reason it is appropriate to begin by considering exactly what was said, and its context. During the period prior to July 2006 there was a major failure on the part of the immigration authorities to deal with immigration claims made on the basis of asylum or human rights. As a result a very large backlog built up, which was believed to amount to somewhere between 400,000 and 450,000 cases. This came to be known as the "legacy". The exact number was not known, because it was likely that some applicants had left the United Kingdom voluntarily or died, and there was substantial duplication of claims. Nevertheless, the total number of unresolved claims created a major problem for the Home Office. To deal with it, it was decided that special...
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