R Abdul Shokor Lavang v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Amanda Yip |
| Judgment Date | 23 October 2014 |
| Neutral Citation | [2014] EWHC 3473 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 October 2014 |
| Docket Number | Case No: CO/13574/2012 |
[2014] EWHC 3473 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Amanda Yip QC
SITTING AS A JUDGE OF THE HIGH COURT
Case No: CO/13574/2012
Mr Paul Turner (instructed by BHD Solicitors) for the Claimant
Ms Jacqueline Lean (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 16 October 2014
Amanda Yip QC:
The Claimant is an Afghan national who has been in the United Kingdom since 2002. Having unsuccessfully claimed asylum, he was granted discretionary leave to remain ("DLR") in 2008. On 17 th May 2011, he made an application to extend his leave, asking that it be considered "in line with the government's legacy policy". That application was determined on 8 th March 2012 with the grant of DLR for a further period of 3 years. By this application for judicial review, the Claimant claims that this was wrong and that he should instead have been granted indefinite leave to remain ("ILR"). He seeks a mandatory order compelling the Defendant to grant ILR or, in the alternative, an order quashing the Defendant's decision and requiring her to reconsider the grant of ILR.
Procedural history
A letter of claim was sent on 2 nd May 2012 challenging "the ongoing failure to grant our client Indefinite Leave to Remain in the United Kingdom". The Defendant responded on 21 st May 2012. On 8 th December 2012, the Claimant's solicitors sent a further letter of claim relying on additional matters including the Report of John Vine, Independent Chief Inspect of Borders and Immigration (published after the initial letter of claim was sent). The second letter of claim referred to a legitimate expectation that "legacy cases" would be concluded before a change in policy in July 2011. The Claimant's position was that had that happened, he would have been granted ILR rather than DLR as was the position under the later policy.
Proceedings were issued on 14 th December 2012. The decision challenged was said to be "The Defendant's failure properly to conclude the Claimant's case under the legacy, and thereby to grant Indefinite Leave to Remain." Permission to proceed with the claim was granted on 13 th August 2013 by John Bowers QC, sitting as a Deputy High Court Judge, following a renewed application. The Claimant was not given permission to rely on grounds relating to legitimate expectation. Further, the Defendant's right to argue the "time" point was reserved to the substantive hearing, it having been noted when permission was considered on the papers that the challenge appeared to apply to decisions of July 2008 and March 2012 and so was well out of time. In the event, I note that the Defendant did not argue delay particularly vigorously before me.
Following the grant of permission, the Claimant's case changed shape somewhat, although I accept that it remained within the scope of the permission granted. This court has considered the so called legacy programme and cases arising out of it on a number of occasions. In particular, in R (Geraldo & others) v Secretary of State for the Home Department [2013] EWHC 2763 (Admin), Mr Justice King heard evidence about the scheme when considering applications for mandatory orders requiring ILR to be granted in place of DLR for claimants whose cases had been dealt with after the change in policy. His detailed judgment was handed down shortly after the granting of permission in this case. Mr Turner appearing for the Claimant indicated that he did not seek to go behind the decision in Geraldo or indeed other legacy cases decided since. The Claimant's case therefore narrowed and is as set out in a skeleton argument dated 10 th October 2014.
The Claimant's case as advanced
The Claimant's case in essence is that the Defendant failed to have regard to her own policies. It is said that the Claimant came within the legacy scheme in late 2010 / early 2011. Had he been dealt with in accordance with the policy then existing he ought to have been granted ILR by no later than February 2011. Having erroneously not granted ILR at that time, the Defendant had the opportunity to correct the mistake when granting him further leave to remain on 8 th March 2012. The policy then existing required her to recognise that the earlier decision was wrong and accordingly to grant leave on the basis it would have been granted in February 2011. That being before the policy change, the Claimant would have been granted ILR.
Put this way, Mr Turner says that this is a narrow fact-specific challenge and that it does not seek to go behind the lawfulness of the policies or to set any wider precedent.
The facts
The Claimant first entered the United Kingdom in April 2002 and claimed asylum on the day of his arrival. In August 2004, he was notified that his application for asylum was refused. He unsuccessfully appealed that decision. Having remained in the country, he entered into a relationship with an EEA national. He made a fresh claim for leave to remain in 2005. After pursuing various appeals and further applications, he successfully established on appeal in 2008 that requiring him to return to Afghanistan would be a disproportionate interference with his Article 8 rights. Thereafter, on 4 th December 2008, he was granted DLR until 18 th May 2011.
The background to the legacy programme is summarised in the judgment of King J in Geraldo at paragraphs 39 to 49 and it is not necessary for me to repeat that here.
The unit set up to deal with the legacy programme was the Casework Resolution Directorate ("CRD"). In 2010, the CRD received the Claimant's file. An entry on 13 th August 2010 noted "Phone number dead". A letter was sent out on that date noting that the Claimant's case was in "the backlog of older asylum applications"; explaining the legacy programme and asking for further information. There was no reply (I suspect the Claimant did not receive the letter). When the case was looked at again on 28 th October 2010, the file was identified as one to potentially go into the controlled archive. That archive was used to deal with cases that could not otherwise be cleared up, such as those in which the person concerned could no longer be traced. Although it involves some degree of speculation, what seems to have happened is that two files existed in relation to the Claimant. The second one contained details of the grant of DLR in 2008 but this had not been consolidated with the original file. I note from evidence previously presented before the courts that may not have been uncommon. Part of the work of the CRD involved "cleansing" and consolidating records and filtering out any duplicate files.
The CRD plainly did go on to identify that the Claimant had in fact been granted DLR. On 22 nd February 2011, his records were noted:
"This case has been reviewed.
Applicant has valid leave until May 2011.
Outcome: not removable by CRD."
My interpretation of this is that, having reviewed the Claimant's records, the CRD caseworker decided that no further action was required at that time. There was no question of the Claimant being removed as he had extant leave to remain. There is no evidence to suggest that any consideration was given to the nature of the Claimant's leave or whether it would be appropriate to grant him any different form of leave to remain.
On 17 th May 2011, just as his DLR was due to expire, the Claimant sent the application to which I have already referred seeking an extension of his leave to stay and asking that it be considered within the legacy policy. This suggests to me that he was unaware that his file had previously been reviewed by the CRD.
Delays in the processing of applications have been well documented in other reported cases. As King J noted in Geraldo at paragraph 46, it was inevitable that the programme and the size of the backlog would lead to further delays. Challenges based on delay alone have previously failed and the Claimant does not pursue a complaint in this action about the time taken to process his May 2011 application.
A decision in relation to his application was in fact taken on 8 th March 2012. By then, the Case Assurance and Audit Unit ("CAAU") had succeeded the CRD and the Claimant's application was considered by the CAAU. The Claimant was given DLR until 7 th March 2015.
The relevant policies
When the CRD looked at cases under the legacy programme, they would not necessarily be looking at an application or fresh claim. In some cases, there would be no application or submissions to consider. However, as King J put it at paragraph 48 of Geraldo:
"The case worker did still however, even if there were no application for leave to remain within the Rules, on the basis of for example a fresh claim, have to consider whether or not to make a decision to remove the individual."
When undertaking that task the CRD would use the ordinary criteria for deciding whether there was any reason not to remove the individual.
As has clearly been established in previous cases, including Hakemi (& others) v SSHD [2012] EWHC 1967 (Admin) and Geraldo, the legacy programme was an operational one only. It did not create any amnesty nor give rise to any new substantive rights. Cases handled within the programme were to be considered having regard to the prevailing law and policy which applied to all other immigration and asylum cases.
Where an individual has entered the country illegally and is...
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