Hamzeh & Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | The Honourable Mrs Justice Simler DBE |
| Judgment Date | 20 December 2013 |
| Neutral Citation | [2013] EWHC 4113 (Admin) |
| Docket Number | Case No: CO/1067/2012 CO/1363/2012 CO/3550/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 December 2013 |
[2013] EWHC 4113 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Simler DBE
Case No: CO/1067/2012
CO/10240/2012
CO/1363/2012
CO/3550/2012
Mr Paul Turner (instructed by Barnes Harrild & Dyer Solicitors) for the Claimants
Ms Julie Anderson & Ms Rosemary Davidson (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 26 th & 27 th November 2013 & 13 th December 2013
Approved Judgment
Introduction
These five claims have been heard together because they raise similar issues. All five Claimants are failed asylum seekers from Iran who claim to be entitled to the benefit of a grant of indefinite leave to remain ("ILR") (or some other grant of leave) arising from the Secretary of State's programme for the resolution of a large backlog of unresolved asylum cases announced in July 2006, referred to here as the "Legacy Programme". There were other unresolved case backlogs at this time and these also required resolution as part of the general resolve to tackle the legacy of unresolved cases, but the focus of this challenge is to the Legacy Programme in relation to unresolved asylum cases. The work carried out under the Legacy Programme was undertaken by a department called the Case Resolution Directorate (CRD) established for this purpose. Subsequently the Case Assurance and Audit Unit (CAAU) inherited this work along with other cases not within the Legacy Programme. The asylum cases dealt with under the Legacy Programme were unresolved asylum cases where the claim for asylum was made before 5 March 2007, and where for a number of reasons, the claim had not been finally concluded.
At the beginning of the hearing, Mr Paul Turner, counsel for all the Claimants, made an application to adjourn because of the late service of witness statements by the Defendant. For the reasons given in a separate ruling, the application was refused, but Mr Turner was given two hours in the course of the day to consider the new material. He was also permitted to make factual submissions in writing in relation to the late witness statements following the hearing. He has done that, and gone further, serving a substantial additional bundle of documents and a witness statement from his solicitor, also called Paul Turner.
The Issues
Permission for judicial review has only been granted in the cases of Mr Hamzeh and Mr Abdullahi. In Mr Hamzeh's case the grant was on the question whether difficulties in enforcing removal to Iran give rise to an entitlement to leave to remain since it is not possible to conclude this case by removal. In Mr Abdullahi's case the grant was based on failure to give adequate reasons following the case of Mohammed (reference given below).
In the cases of Mr Nejad, Mr Jaffar, Mr Ahmadi and Mr Abdullahi permission has been refused on the "removability" issue, but following renewed applications for permission, these cases have been listed for a rolled up permission hearing with that of Mr Hamzeh.
The grounds have been formulated and re-formulated over the course of the judicial review applications and during the hearing. Mr Turner's final (as he confirmed both orally and in writing) formulation of the Claimants' core grounds of challenge is as follows:
i) There was an unlawful failure (at the time of the decisions and/or on an ongoing basis) to conclude these cases.
ii) If not, the refusal letters in these cases cannot be lawful decisions in circumstances where there has been no consideration of removability and/or length of residence and delay.
iii) The Defendant has failed to seek to document or remove the Claimants or take any steps to assist them home resulting in a state of "limbo" which is unlawful and in breach of their Article 8 rights.
So far as (iii) is advanced as a free-standing ground of challenge, Mr Turner accepts that he does not have permission to pursue it, and any application for permission would be opposed by the Defendant. None was in fact made by Mr Turner.
Accordingly, the issues are as follows:
i) Was there an unlawful failure (or is there any ongoing failure) to conclude these cases by removal or grant of leave?
ii) Has there been a lawful legacy decision in these cases or does the fact that the Claimants claim to be 'irremovable' entitle them to leave under paragraph 395C or 353B of the Immigration Rules, or any other rule of law or policy?
iii) Has the Defendant's failure to remove (or to take steps to re-document etc) the Claimants led to them being in a state of limbo that constitutes a disproportionate interference with their rights to family or private life under Article 8 of the Convention?
iv) Was there a failure to give adequate reasons and/or any legal obligation to state specifically that 395C and/or chapter 53 EIG is being applied and/or to have regard to materially relevant considerations, namely length of residence and/or removability?
There are a number of common factual features in relation to the five cases. First, all Claimants entered the UK illegally and made a claim for asylum that was rejected. The asylum decision was appealed in each case and was the subject of adverse credibility findings on appeal. All Claimants (except Mr Jaffar who was never properly served) failed to report in accordance with reporting requirements imposed upon him. Finally, each has failed to leave the UK on a voluntary basis, after receiving notification of the refusal to grant ILR in his case.
The Claimants have produced many volumes of documents, including most of the witness statements and underlying documents available to the court in Hakemi and Geraldo. These include several statements from Mr Neil Forshaw, an Assistant Director of the UKBA who deals among other things, with the work of the CRD and the transfer of cases to the CAAU; and a statement of Neil Parkin, a grade 7 civil servant of the Home Office. Both Mr Forshaw and Mr Parkin attended the hearing in Geraldo for cross-examination and the effect of their evidence is dealt with in the judgment in that case. All of the source material relied on by Mr Turner in this case was available in Geraldo (and indeed, much of it available in Hakemi) and was explored at length with these witnesses.
I have also received two more recent witness statements from Mr Forshaw prepared for this case; statements from Mr Ahmadi and Mr Nejad addressing the question of documentation and their willingness to co-operate with the Defendant in obtaining or making efforts to obtain identity documentation; and the statement of Paul Turner, solicitor, exhibiting a bundle of documents relating to a number of other entirely un-related cases in support of a consistency of treatment argument.
The Legacy Programme
The policies and practices of the CRD and CAAU in relation to the legacy arrangements put in place to deal with unresolved asylum claims, have been examined in a number of judgments of this court, including FH and others v. SSHD [2007] EWHC 1571 (Collins J); Hakemi and others v. SSHD [2012] EWHC 1967 (Burton J); Mohammed v. SSHD [2012] EWHC 3091 (Stephen Morris QC); Geraldo and others v SSHD [2013] EWHC 2763 (King J) and most recently Rahim [2013] EWHC 2794 (Mark Ockleton); Che v. SSHD [2013] EWHC 2220 (Mark Ockleton); and Baser and others v. SSHD [2013] EWHC 3620 (Eady J).
In Hakemi and Geraldo in particular, the court examined emails sent to caseworkers by Mark McEvoy at the end of August 2011, said by Mr Turner to be of particular importance in this case. King J was presented with material relied on by the claimants in that case (and again in this) as evidence of maladministration and administrative delay on the part of the Defendant in dealing with cases under the Legacy Programme. He considered the report of the Parliamentary Home Affairs Select Committee; the House of Commons library paper, entitled Asylum: Legacy Cases, dated 10 August 2010; and significantly, the highly critical report of the Independent Chief Inspector of Borders and Immigration, John Vine, for the quarter ending July 2012 – all of which are relied on by Mr Turner here.
At paragraph 39 to 49 in Geraldo, King J summarised the background as follows:
"39. The Case Resolution Programme or the Legacy Programme, was instigated by the government in July 2006 to deal with a vast backlog of unresolved asylum claims, this is to say for the most part failed asylum claims, some going back many years in which the unsuccessful claimant had neither been removed nor a decision made to grant him or her leave to remain in the UK on some basis other than the claimed refugee statue either within the Immigration Rules or outside the Rules, and with many of whom the Home Office had lost contact. One of the problems was that as at July 2006 there were in the region of 400–450,000 electronic and paper records concerning such claims within the Home Office which had not been opened or reviewed (and indeed once the programme was under way further records came to be included, ultimately reaching a total caseload of some 500,000 – see the report of the Parliamentary Home Affairs Select Committee for April-July 2011) but which were recognised to be 'riddled with duplication and errors and cases of individuals who have since died or left the country or become EU citizens', (to quote the statement of the then Home Secretary Dr John Reid MP to Parliament in July 2006). As Mr Neil Forshaw told me, until the...
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