Petition Of Dm For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Doherty |
| Judgment Date | 2013 |
| Neutral Citation | [2013] CSOH 114 |
| Year | 2013 |
| Published date | 09 July 2013 |
| Docket Number | P1212/12 |
| Court | Court of Session |
| Date | 09 July 2013 |
| OUTER HOUSE, COURT OF SESSION | |
| [2013] CSOH 114 | |
| P1212/12 | OPINION OF LORD DOHERTY in the Petition DM Petitioner; for Judicial Review ________________ |
Petitioner: Caskie; McGill & Co, Solicitors
Respondent: Pirie; Office of the Advocate General
9 July 2013
Introduction
[1] The petitioner is an Algerian national. He was born in 1970. He came to the United Kingdom in 1998. He claimed asylum. He was invited on two occasions to attend a screening interview for the purposes of his asylum claim. On both occasions he failed to attend. On 14 May 1999 his asylum claim was refused. On 1 August 2000 a decision was taken to remove him. On 4 August 2000 he gave notice of appeal. He did not attend the appeal hearing on 31 October 2000 and the Special Adjudicator dismissed his appeal. On 15 December 2000 he was refused permission to appeal to the Immigration Appeal Tribunal: he became appeal rights exhausted.
[2] The petitioner married a British citizen in August 1998. On 21 March 2000 he sought leave to remain. On 12 December 2001 he was granted leave to remain for one year on account of his marriage. The marriage got into difficulties in 2002. The petitioner and his wife were divorced in 2006. There were no children of the marriage.
[3] The petitioner made no further application for leave to remain when his leave expired on 12 December 2002. He became an overstayer. He did not contact the authorities until 29 May 2009 when solicitors wrote applying for discretionary leave on the basis that removing him would breach his article 8 ECHR right to private life. The application also sought "to have his case considered/reconsidered in light of the policy as announced by the Secretary of State in July 2006 in respect of case resolution".
[4] During 2006 it became apparent that there was a massive and unmanageable backlog of asylum/ human rights applications by which the respondent was overwhelmed. The background to the "legacy" has been set out in the judgments of Burton J in R (Hakemi & Ors) v Secretary of State for the Home Department [2012] EWHC 1967 (Admin) and Stephen Morris QC sitting as a deputy judge in R (Mohammed) v Secretary of State for the Home Department [2012] EWHC 3091 (Admin).
[5] On 19 July 2006 the Secretary of State stated in the House of Commons (Hansard, HC Vol 449, col. 324):
"We will tackle the case load in the IND [Immigration and Nationality Directorate] with the aim of clearing it - not in 25 years, as has been suggested, but in five or less. We will put our books in order."
A little later he continued (col. 328):
"I did say that we would aim to clear up the caseload legacy in five years - or, I hope, less time than that."
[6] On 25 July 2006 the Home Office published "Fair, effective, transparent and trusted-Rebuilding confidence in our immigration system" which set out proposals for reform. Paragraph 2.10 stated:
"We will also deal with the legacy of older cases that have yet to be fully resolved. We plan to do this within five years or less. We will prioritise those who may pose a risk to the public, and then focus on those who can more easily be removed, those receiving support, and those who may be granted leave. All cases will be dealt with on their individual merits."
[7] On the same day the Secretary of State made a statement to the House of Commons about those proposals. The statement included the following passage (Hansard, HC, Vol. 449, cols. 736-7):
"We will deal with the legacy of unresolved cases in five years or less, as I said last week. We will prioritise those who may pose a risk to the public and then focus on those who can more easily be removed, those receiving support and those who may be granted leave. All cases will be dealt with on their merits: there will be no amnesty."
In response to a question on the five year period and what "resolve" meant the Secretary of State replied (col. 750):
"..it does mean that each and every one of these cases will be attended to within a five year period, rather than just sitting there, unattended, as has been the case up to now."
[8] The decision was taken to transfer some 500,000 outstanding applications received prior to 5 March 2007 to a specially constituted team of some 950 caseworkers, the Casework Resolution Directorate ("CRD") to work through the cases.
[9] The Secretary of State did not reach a decision on the petitioner's representations of 29 May 2009 until 14 November 2011. On that date she considered whether leave to remain should be granted having regard to immigration rule 395C. She concluded that it should not. She also rejected the petitioner's human rights claim: while removal would interfere with his right to private life the interference was considered to be justified and proportionate.
[10] The petitioner appealed that decision, but only on the ground that removal would breach his article 8 right to private life. On 5 January 2012 the First-tier Tribunal (Immigration and Asylum Chamber) allowed the appeal, holding that removal would be a disproportionate interference with the petitioner's right to private life.
[11] On 31 August 2012 the Secretary of State granted the petitioner discretionary leave to remain in the United Kingdom until 30 August 2015. He will be able to reapply for a further period of discretionary leave to take effect on the expiry of that period. He could become eligible for settlement on 30 August 2018 (after six years discretionary leave).
The petition
[12] The petition was presented on 15 November 2012. Thereafter it underwent substantial amendment and adjustment. The petitioner now avers:
"2. That on 31st August 2012 the Secretary of State decided to grant the petitioner "Discretionary Leave to Remain" in the United Kingdom and not Indefinite Leave to Remain.
3. The petitioner seeks:
(i) declarator that the petitioner is entitled to Indefinite Leave to Remain in the United Kingdom...
4. The petitioner challenges the said decisions on the following grounds...
6. On 29th May 2009 representations were made on the petitioner's behalf that he be allowed to remain in the United Kingdom. Those representations should have been answered by 19th July 2011, but were not responded to until 14th November 2011...
7. In failing to fully consider the petitioner's application by 19th July 2011 (at which time he would have been entitled to indefinite leave to remain ("ILR") the Secretary of State breached the petitioner's legitimate expectation that his claim would be considered under the Secretary of State's policy seeking to address the backlog of asylum cases, where failed asylum seekers were not removed or granted Leave to Remain...
11. As part of a programme to reform the Home Office the Home Secretary announced that the backlog of cases would be dealt with within five years. He made statements in the House of Commons and elsewhere in respect of that timeframe..."
The averments then made reference to the statements already described and continued:
"14. The Secretary of State decided to transfer what was then an unknown number of unresolved cases...to...the Casework Resolution Directorate ("CRD")...
15. ...When it reviewed a case the CRD would begin by considering the Immigration Rule 395C factors set out in Chapter 53 of the "Enforcement Instructions and Guidance". In practice Immigration Rule 395C provided that before a decision to remove was made in any "Legacy Case" regard will be had to all the relevant factors known to the Secretary of State. The Secretary of State published and frequently revised Chapter 53 of the Enforcement Instructions and Guidance ("EIG"). Its purpose was stated to be to provide case workers with clarification on the "relevant factors" in Immigration Rule 395C...
16. Immigration Rule 395C ... did not prescribe the length of time for which leave to remain in the United Kingdom should be granted if the Secretary of State decided not to remove. For a period prior to 21 July 2011 Chapter 53 of the EIG and the associated policies on Discretionary Leave to Remain indicated that Indefinite Leave to Remain should be granted to a person it had been decided not to remove...Subsequent versions of Chapter 53 did not specify the length of time for which leave to remain in the United Kingdom should be granted if the Secretary of State decided not to remove, but staff were or should have been aware of the previous indication that such a decision should normally lead to a grant of Indefinite Leave to Remain. When it decided not to remove following a consideration of the factors in Chapter 53 the CRD would in the vast majority of cases throughout its existence grant the person concerned ... Indefinite Leave to Remain ...
17. When the Secretary of State decided a person did not qualify for Leave to Remain under Immigration Rule 395C the CRD would go on to consider whether there were other grounds to grant the person leave to remain ...this would include, for example, consideration of any asylum based further submissions that the applicant may have lodged. Applicants granted refugee status would be granted leave to remain for 5 years in accordance with the UKBA policy on Refugee Leave. The Secretary of State published guidance, which the CRD should have followed, that where his removal would be incompatible with his rights under article 8 ECHR, an applicant should be given discretionary leave to remain in the United Kingdom for three years. The CRD did not have a policy or practice that the leave to remain in the United Kingdom that it granted would only be indefinite, but in practice almost all who were granted Leave to Remain under Immigration Rule 395C were granted Indefinite Leave to Remain (emphasis added)...
19. On 13th September 2011 the Acting Chief Executive of the UKBA (Mr Sedgewick) gave evidence to the Home Affairs Select Committee. A dispute arose as to whether some 18,000 cases which it was said were awaiting removal action had been completed. Mr...
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