Hiwa Hakemi and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Burton |
| Judgment Date | 19 July 2012 |
| Neutral Citation | [2012] EWHC 1967 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/304/2011; CO/445/2011; CO/1656/2011; CO/9618/2011 |
| Date | 19 July 2012 |
[2012] EWHC 1967 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Burton
Case No: CO/304/2011; CO/445/2011; CO/1656/2011; CO/9618/2011
MR HUGH SOUTHEY QC and MS NICOLA BRAGANZA (instructed by Avon & Bristol Law Centre) for the First, Second and Third Claimants
MR HUGH SOUTHEY QC and MS NICOLA BRAGANZA (instructed by Blavo & Co) for the Fourth Claimant
MS JULIE ANDERSON (instructed by Treasury Solicitor) for the Respondent
Hearing dates: 2 and 3 July 2012
The claims arise out of the so-called "Legacy Cases". By the end of 2006, there was a massive and unmanageable backlog of asylum/human rights applications, by which the Defendant was overwhelmed. Collins J addressed some of the problems in his judgment in FH & Others v Secretary of State for the Home Department [2007] EWHC 1571 (Admin) (5 July 2007). 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"), which would work through those cases and endeavour to grant or refuse leave to remain by July 2011.
By July 2011 there was a rump of some 116,000 cases, consisting in part of 18,000 still active cases and in part of what was called a "controlled archive" of some 98,500 cases where for one reason or another there were particular difficulties in investigation. The remaining active cases and the controlled archive were transferred, in July 2011, to a new body, consisting of a team of some 90 caseworkers, who were to continue to work on them and resolve them, the Case Assurance and Audit Unit ("CAAU"). In respect of three of the four Claimants before me their cases were considered and resolved by the CRD (decisions being given in October and November 2010): that of the Fourth Claimant was passed to the CAAU and decided in July 2011.
Permission was granted for judicial review in the four cases upon grounds not all of which have, in the event, been pursued, and Mr Southey QC, who has with Ms Braganza represented all four has, at my suggestion, formulated, without opposition from Ms Anderson, for the Respondent, Amended Grounds, succinctly setting out the heads of arguments for a claim upon which he now relies.
It is worth setting out what case is not pursued:
i) It seems that at an earlier stage it was suggested that the reference of the Legacy Cases to the CRD and/or the CAAU amounted to an "amnesty", of whose benefit the Claimants sought to argue they had been deprived by their applications being refused. That is not now pursued. Although the legacy process, over its five years or so of operation, did result in considerably more grants than refusals, there was no amnesty, and none is now alleged.
ii) It was also suggested that there was a case of 'inconsistent treatment' by comparison with the decisions given in other cases. That too is not now pursued.
The Amended Grounds are as follows:
"The Defendant erred in law as follows:
1. In failing to seek Parliamentary approval for a modification of her policy and practice as applied to those considered by the Defendant's Case Resolution Directorate and subsequently the Case Assurance Audit Unit, specifically in the application of the policy and/or practice that leave would be granted to those with 6 years' residence and as per Pankina.
2. In publicising and or informing those considered by the Defendant's Case Resolution Directorate and subsequently the Case Assurance Audit Unit not to contact the Defendant's CRD, whilst informing her CRD caseworkers in guidance and training slides that "A person who has actively attempted to resolve their status through requesting progress reports, for example, will have a stronger case than someone who has simply taken advantage of the delay and not made any contact to attempt to regularise their position.".
3. In failing to publicise aspects of her practice and policy, as detailed within training slides and applied by the CRD, in particular that:
a. a person who has actively attempted to resolve their status would have a stronger case;
b. "all things being equal" 6 years' residence would result in a grant of leave;
c. the prospects of removal would be considered a relevant factor.
4. In failing to consider that delay on the part of the Defendant in enforcing removal was a relevant factor.
5. In the circumstances of these applications in failing to provide these Claimants with the opportunity for interview or to provide representations.
6. In failing to provide sufficient reasons."
The CRD was to consider the grant of leave outside the Immigration Rules but by reference to paragraph 395C, which states:
"Before a decision to remove under section 10 is given, regard will be had to all the relevant factors known to the Secretary of State, including:
(i) age;
(ii) length of residence in the United Kingdom;
(iii) strength of connections with the United Kingdom;
(iv) personal history, including character, conduct and employment record;
(v) domestic circumstances;
(vi) previous criminal record and the nature of any offence of which the person has been convicted;
(vii) compassionate circumstances;
(viii) any representations received on the person's behalf."
There is then further reference to family members/children, not relevant in this case; all four of the Claimants are, and have been, single, without wives, partners or dependants.
Chapter 53 of the Enforcement Instructions and Guidance ("EIG") was at all material times the published guidance, its purpose being described as "to provide CRD caseworkers with clarification on the consideration of the 'relevant factors' in paragraph 395C of the Immigration Rules". There were two amendments, in April and August 2009, giving some more specific guidance in respect of length of residence, which, as explained by Mr Forshaw, Assistant Director of UKBA, did not constitute material changes. However in any event it is common ground that the format of Chapter 53 by reference to which the cases for all these four Claimants fell to be considered post-dates those amendments. As amended, it read as follows (in material part):
"53. Extenuating Circumstances
It is the policy of the Agency to remove those persons found to have entered the United Kingdom unlawfully unless it would be a breach of the Refugee Convention or ECHR or there are compelling reasons, usually of a compassionate nature, for not doing so in an individual case.
53.1 Illegal entrants and persons subject to administrative removal action under section 10 of the 1999 Act
Full account must be taken of all relevant circumstances before a decision to remove is taken on a case.
The factors to be considered are the same as those outlined in paragraph 395C of the Immigration Rules.
53.1.1 Instructions on applying paragraphs 364 to 368 and 395C of the Immigration rules
Before a decision to remove is taken on a case, the case-owner/operational staff must consider all known relevant factors (both positive and negative). It is important to cover the compassionate factors in the transcription of the interview and to record them and the fact that you have discussed them with the UKBA officer authorising removal, on the local file minute or IS126E and UKBA internal database records (CID). Removal should not be considered in any case which qualifies for leave under the Immigration Rules, existing policies or where it would be inappropriate to do so under this policy.
Relevant factors are set out in paragraph 395C of the immigration rules and in the guidance below, but this list is not exhaustive …
53.1.2 Relevant Factors in paragraph 395C. [I add subparagraph numbers]
(i) The consideration of relevant factors needs to be taken as a whole rather than individually, for example, the length of residence may not of itself be a factor, but it might when combined with age and strength of connections with the UK.
…
•Length of residence in the United Kingdom
For those not meeting the long residence requirements elsewhere in the immigration rules, the length of residence is a factor to be considered. In general, the longer a person has lived in the UK, the stronger their ties will be with the UK. However, more weight should be attached to the length of time a child has spent in the UK compared to an adult.
(ii) Residence accrued as a result of non-compliance by the individual
Where there is evidence of an attempt by the individual to delay the decision making process, frustrate removal or otherwise not comply with any requirements imposed upon them, then this will weigh against the individual. …
(iii) Residence accrued as a result of delay by UKBA
Case law has established that there are particular contributory factors involving delay that need to be present before it is considered significant enough to grant leave (Court of Appeal judgment in HB (Ethiopia) & others v SSHD [2006] EWCA Civ 1713refers).
These include cases where:
•an application has been outstanding for over 2 years; and
•no decision has been received from the UK Border Agency during that time; and
•the individual has been making progress enquiries during that time;
•in the meantime the delay has meant that they have built up significant private or family life or the delay has resulted in considerable hardship:
(iv) In addition to the foregoing, provided that none of the factors outlined in 'Personal History' weigh...
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