R Fatima Farhana Mohammed v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Stephen Morris Qc |
| Judgment Date | 02 November 2012 |
| Neutral Citation | [2012] EWHC 3091 (Admin) |
| Docket Number | Case No: CO/11492/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 November 2012 |
[2012] EWHC 3091 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Stephen Morris Qc
Sitting as a Deputy High Court Judge
Case No: CO/11492/2010
Ripon Akther (instructed by Malik & Malik, Willesden, Solicitors) for the Claimant
Beatrice Collier (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 2 October 2012
Introduction
The Claimant, Fatima Farhana Mohammed, seeks judicial review of the refusal of the Defendant, the Secretary of State for the Home Department, to grant her leave to remain in the United Kingdom under paragraph 395C of the Immigration Rules, in circumstances where her case fell within "the legacy programme" formerly dealt with by the Defendant's Case Resolution Directorate ("CRD"). This challenge is directed, principally, to a decision contained in a letter from the Defendant dated 7 February 2011 ("the 7 February 2011 letter"). The Claimant contends that the decision in that letter was Wednesbury unreasonable and/or conspicuously unfair.
More recently and in the course of these proceedings, on 6 August 2012, the Claimant made further representations, based on further evidence, which she claims has recently been received from Sri Lanka. As at the date of the hearing, the Defendant had not yet responded to these further representations and was not able to say when they would be dealt with. The parties nevertheless agreed that the existing challenge to the decision in the 7 February 2011 letter falls for determination. I note now that in fact, since the hearing, the Defendant may have made a further decision. However neither party has made any further submissions to suggest that any such further decision is relevant to the matters here in issue.
This application has come before me by way of a "rolled up" hearing, as directed by Singh J on 1 December 2011. I should state at the outset that I am satisfied that the Claimant's case is arguable and accordingly I grant permission to apply for judicial review. In the remainder of this judgment, I consider the substantive claim for judicial review. My conclusion is stated at paragraph 101 below.
Factual background
The Case Resolution Directorate and "legacy" cases
The Claimant's case is what is commonly referred to as a "legacy case". A "legacy case" is an unresolved asylum case, where the claim for asylum was made before 5 March 2007, and where, for a variety of reasons, the claim had not been finally concluded. Included within the class are cases where the asylum claim had been refused, but where the applicant had not yet left the UK or where further representations had been made. The CRD was set up in the summer of 2006 specifically for the purpose of dealing with such legacy cases. The Claimant's case fell to be dealt with by the CRD. The CRD closed on 1 April 2011 and outstanding cases were transferred to a new unit within the UK Border Agency ("UKBA"), the Case Assurance and Audit Unit ("CAAU").
The CRD and so-called "legacy" cases are considered in some detail in the recent decision of Burton J in Hakemi and others v SSHD [2012] EWHC 1967 (Admin), to which I refer in paragraphs 45 to 50 below.
The Claimant's immigration history
The Claimant is a Sri Lankan national aged 50. She has been in this country for almost 11 years. She arrived in the United Kingdom on 19 December 2001 with a visa valid until April 2002. After her visa expired she remained in the United Kingdom. On 4 October 2002 she was arrested and claimed asylum. Her asylum claim was refused in a letter dated 27 November 2002. She appealed to an adjudicator, who dismissed her appeal in a determination promulgated on 29 July 2003. Her appeal rights were exhausted on 1 September 2003.
In 2004 the Claimant applied for indefinite leave to remain, on the ground that she had been working in Sri Lanka for the British High Commission for 11 years. That application was rejected by the Defendant by decision letter dated 9 August 2006. Two days later, the Claimant was detained for the purposes of removal, set for 16 August 2006. On the same day, however the Claimant lodged a fresh asylum claim and on 16 August 2006, applied for judicial review. Permission was refused on the papers on 15 November 2006 and no renewal application was made. Until November 2006, the Claimant regularly reported to the UKBA. The Defendant maintains in the Detailed Grounds of Defence ("Detailed Grounds") that from November 2006 onwards she did not report.
On 23 April 2007 the Claimant submitted further representations to the Defendant. By decision letter dated 21 October 2008, the Defendant refused to treat those representations as a fresh claim. On 25 December 2008 directions were set for removal in early January 2009. However, according to the Detailed Grounds, on 14 January 2009, those directions were cancelled as the Claimant could not be found at the address she had given.
September 2009 representations
On 4 September 2009, the Claimant made representations which she asked the Defendant to treat as a fresh claim for asylum or human rights, relying on Articles 2, 3 and 8 ECHR and also making detailed representations for leave to remain outside the rules under paragraph 395C. The Claimant enclosed a personal witness statement dated 8 May 2009 with that letter, setting out her personal circumstances. It is these further representations which formed the initial basis for the present proceedings.
In the letter, the Claimant addressed each of the factors listed in paragraph 395C (set out in paragraph 29 below). She contended that the length of her residence was a sufficiently compelling factor to justify allowing her to remain in the UK; though the letter does not refer to any specific length of time as rendering her period of residence as being a particularly significant factor. She further claimed that she had built up a private and family life in the UK; that that life had been built up with her friends who were like her family and who provided her with emotional and financial support. Then, the letter contained a further section under the heading " Inconsistent approach to decision making by the SSHD" and referred to other Sri Lankan cases where leave to remain had been granted. Under the same heading, it was averred that the Claimant's case should be taken out of the queue. As explained in paragraph 62 below, the existence of this section of the letter may explain certain parts of the 7 February 2011 letter.
The Claimant's solicitors, Malik & Malik, sent chasing letters to the Defendant, including a letter dated 12 November 2009. On 22 February 2010, they sent a letter before claim to the Defendant, in which they pointed out that no substantive response had been received to the 4 September 2009 representations. By letter dated 18 March 2010, the Defendant responded by declining to deal with the Claimant's case out of turn. Further letters before claim were sent in the course of 2010, pressing for the Claimant's case to be taken out of the queue and expedited. The Defendant responded to the same effect.
On 2 November 2010 the present application for permission to apply for judicial review was lodged. By that application the Claimant sought an order requiring the Defendant to make a decision on the 4 September 2009 representations; the grounds of the application being that the Defendant had delayed unreasonably in dealing with those representations and her case should have been taken to higher in the list. The grounds also refer to the existence of revised UKBA guidance enabling caseworkers to consider granting permission to stay on the basis of a period of residence of 6 to 8 years rather than 10 to 12 years.
On 31 December 2010, the Defendant filed Summary Grounds of Defence ("the Summary Grounds") contending that there were no grounds for taking the Claimant's case out of turn and that the delay was not Wednesbury unreasonable.
The 7 February 2011 letter
In a decision letter dated 7 February 2011, the Defendant addressed the 4 September 2009 representations. The Defendant informed the Claimant that she did not qualify for asylum or humanitarian protection and that she did not qualify for limited leave to remain in accordance with the Defendant's policy on discretionary leave. The letter concluded that there were no compassionate circumstances under paragraph 395C to justify not removing her. The Defendant further concluded that the 4 September 2009 representations did not amount to a fresh claim for asylum or human rights under paragraph 353 Immigration Rules. Accordingly, the Defendant informed the Claimant that she had no basis to stay in the United Kingdom and that she should make arrangements to leave without delay. Somewhat confusingly, at page 7, the letter appeared to suggest that the application had not yet been considered and remained outstanding. This is addressed further below.
Further confusion arose from the fact that there was an earlier draft of this letter, dated 31 January 2011. As explained in a witness statement dated 10 July 2012 from Mr Michael Williams, a caseworker in the CAAU, that earlier draft was subsequently modified and sent in the form of the 7 February 2011 letter. The modifications made are of no significance. I note that, in the Consideration of Submissions section of the letter, it is stated that the consideration was completed on 31...
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