Moussaoui v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Clare Moulder |
| Judgment Date | 03 November 2014 |
| Neutral Citation | [2014] EWHC 3596 (Admin) |
| Date | 03 November 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5610/2012 |
[2014] EWHC 3596 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Clare Moulder (SITTING AS A DEPUTY HIGH COURT JUDGE)
Case No: CO/5610/2012
Ms Nicola Braganza (instructed by Leigh Day Solicitors) for the Claimant
Ms Julie Anderson (instructed by Treasury Solicitors) for the Defendant
Hearing date: 9 th October 2014
Introduction
This is an application for judicial review by the claimant an Algerian National. The original claim was lodged on 29 May 2012 and it sought to challenge the decision to refuse to grant the claimant leave under the legacy programme and sought an order requiring the defendant to reconsider the claimant's application as a legacy case and grant him leave to remain in the UK in line with legacy practice. Permission was refused on paper by Timothy Straker, QC, sitting as a deputy High Court judge on 22 August 2012. Proceedings were then stayed by a consent order dated 5 December 2012 to allow for a reconsideration and subsequently a new decision dated 2 February 2013 was made and leave to remain was refused. Amended grounds for review were served by the claimant on 19 February 2013 and permission was granted following an oral renewal hearing on 30 October 2013 by Geraldine Clark, sitting as a deputy High Court judge.
The claimant served draft re-amended grounds on 25 September 2014 on the defendant and the defendant was invited to respond as to whether she agreed the application to amend. By letter of 1 October 2014 the defendant responded to the proposed re-amended grounds of claim and in such letter asserted that there was no "substantive legacy decision" in 2011 and the case was passed to CAAU as an "undecided case".
As a result of this disclosure the claimant applied to amend the re-amended grounds and this application was before me as a preliminary matter.
Chronology
The chronology, so far as relevant is as follows: the claimant came to the UK in 1998 and immediately applied for asylum. Asylum was refused in 2001 and his appeal was dismissed in September 2002; he became appeal rights exhausted in December 2002. He lost his accommodation in 2005, becoming homeless and stopped reporting. He resumed reporting in April 2008.
On 18 June 2010 the UKBA wrote to the claimant stating that his case was in the backlog of older asylum applications and the Case Resolution Directorate (CRD) was responsible for his case. The letter requested photographs together with certain other documents. On 17 September 2010 he received a letter from UKBA stating that his application was being processed by one of the casework teams. On 20 September 2010 his then solicitors sent a letter of authority and on 31 December 2010 they wrote to UKBA noting that they had still to hear regarding the present position of our clients "legacy application" and requesting an update on the application. On 23 June 2011, there was a further chasing letter, this time to the Case Assurance and Audit Unit. In September 2011 the claimant's MP called the UKBA for an update and was told no decision was yet taken.
The key letter which gave rise to this claim was dated 9 November 2011. On 6 October 2011 the claimant applied for NASS support and this was rejected by letter of 9 November 2011, which stated:
"You have applied for support on the basis that you have an outstanding legacy case and have not yet had a decision.
Your case did form part of the backlog of older cases, which the UK border agency was working to conclude within the Case Resolution Directorate (CRD).
Your case has now been fully reviewed by CRD and the outcome is that you have no basis of stay in United Kingdom. You should make arrangements to leave the United Kingdom without delay." [Emphasis added]
By letter of 17 January 2012, Stoke-on-Trent Citizens Advice Bureau wrote on behalf of the claimant to the Case Assurance and Audit Unit stating:
"our client has received no separate decision letter from the Case Resolution Directorate refusing to grant status under the legacy programme. We request therefore that a decision be issued to our client at our offices as soon as possible."
In a letter of 2 May 2012 from the defendant to the claimant's MP, the defendant confirmed that the claimant's case had been reviewed and it was deemed that the original decision should remain extant. The material sections stated:
"I can confirm that we wrote to [the claimant] on 12 July 2010, asking him to submit documents that would enable us to resolve his case. In this letter [the claimant] was informed that our case resolution directorate (CRD) would seek to resolve cases by either removing individuals or granting them leave to remain in the UK.
Consideration of a case by CRD does not involve any application (and is not an application in itself) nor result in an immigration decision being made, unless such applications were already outstanding, nor does it create additional criteria of entitlement to remain in the UK.
As stated in our letter of 9 November 2011, we have reviewed [the claimant's] case under the remit of the Legacy Casework Programme. The review considered the original decision made on [the claimant's] case and whether he had any outstanding applications or representations for leave to remain in the UK. Following the review, it was deemed that the original decision made on [the claimant's] case should remain extant. As matters currently stand, [the claimant] has no basis of stay in the UK and should make arrangements to leave the country as soon as possible." [Emphasis added]
On 29 May 2012 this judicial review claim was lodged. On 22 August 2012 permission was refused on the papers for judicial review. On 5 December 2012 the parties entered into a consent order staying the judicial review proceedings and providing for the defendant to consider the further evidence, including a witness statement dated 17 October 2012 and to reconsider his case as a whole.
On 2 February 2013 the defendant stated that the case had been fully reviewed by CAAU and the outcome was that the claimant had no basis of stay in the United Kingdom.
On 30 October 2013 permission for the application for judicial review was granted. On 5 August 2014 there was a further letter from the defendant considering whether to grant the claimant leave on the basis of exceptional circumstances.
On 1 October 2014 the defendant wrote to the claimant's representatives stating that there was no substantive legacy decision by the CRD in 2011.
Application to amend the grounds
As a preliminary point I have to deal with the application dated 6 October 2014 to amend the grounds. This amendment arose as a result of correspondence between the parties in early October 2014. The claimant had prepared draft re-amended grounds and served these on the defendant on 25 September 2014. The defendant was invited to respond as to whether she agreed to the application to amend. By letter dated 1 October 2014 the defendant responded to the proposed amendment stating that there was no objection to the amendment on the legacy grounds but submitting that the defendant did not consent to the amendment of the grounds to raise the fresh claim point. The defendant submitted that she had not received representations in support of a fresh claim but offered to consider an application and make a fresh decision. Accordingly, the defendant submitted that the claimant has an alternative remedy and the application for judicial review should be adjourned pending a decision on the fresh claim.
I have no doubt given the letter of October 1, 2014 that the amendment in relation to legacy should be permitted. I will consider below the extent to which there was a "misunderstanding" on the part of the claimant in relation to the question of whether or not a decision was taken in November 2011 but prior to the letter of 1 October 2014 the basis of the claimant's challenge (as is evident from the draft amended grounds dated 25 September 2014) was that there was a decision taken some time between the middle of September and 9 November 2011, and since no reasons or detail were provided, the decision was unlawful. In the letter of 1 October 2014 the Treasury Solicitor stated:
"for the avoidance of doubt, it is confirmed that there was no substantive legacy decision by the CRD in 2011, the contemporaneous records do not show a decision on the database, there is no minute of decision on file, no decision letter was written and the case was passed to CAAU as an "undecided" case."
As a result of this letter the claimant was obliged to seek an amendment to his grounds to address this issue and on 6 October 2014 made an application to amend his grounds and address the issues raised in the letter of 1 October 2014. The claimant's representatives in their letter of 3 October 2014 suggest that the judicial review claim had been premised on an erroneous statement as a result of being falsely led to believe that his case had been considered and refused and expressing concern that the erroneous understanding was not corrected. Again, I will deal below with the reasons why the proceedings unfolded as they did; it is sufficient at this stage to say that the amendment to the legacy grounds should in my view, be permitted to ensure that the real dispute between the parties can be adjudicated upon.
In relation to the fresh claim, this was a matter which was raised in the draft amended grounds dated 25...
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