R Hoang v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stadlen |
| Judgment Date | 09 May 2012 |
| Neutral Citation | [2012] EWHC 4235 (Admin) |
| Date | 09 May 2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/11021/2011 |
[2012] EWHC 4235 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Stadlen
CO/11021/2011
Mr Nathan appeared on behalf of the Claimant
Ms Blackmore appeared on behalf of the Defendant
This is a renewed application for permission to apply for judicial review of a decision of 26 August 2011 refusing the claimant permission for leave to remain under the legacy regime under the auspices of the Case Resolution Directorate (the "CRD").
The principal ground of challenge is that the decision letter failed to comply with paragraph 53.1.4 of the defendant's enforcement guidance which reads:
"Concluding the case. Decision makers must consider all relevant factors in the round and be able to demonstrate that full consideration has been given to paragraphs 359(c) and 364 to 367.
The claimant is a citizen of Vietnam who came to the United Kingdom in 2003 and claimed asylum on 17 January 2003. It appears that that claim was never resolved and his case fell to be dealt with under the CRD. The decision letter was brief and it said so far as material:
"Your case has now been fully reviewed and the outcome is that you have no basis of stay in the UK. You have no applications or further submissions outstanding. The previous decision to refuse your application submissions is maintained. You should make arrangements to leave the UK without delay."
It is submitted that that is unlawful because there was no consideration by the decision maker of all the factors in the round and in particular those identified in paragraph 395(c) of the Immigration Rules.
The only relevant facts that were drawn to the attention of the Secretary of State before the decision was reached were contained in letters dated 30 September 2010, in which there was reference to a request to consider the claimant's claim under the legacy programme and issue him and his son with the appropriate immigration status papers and a letter dated 3 August 2011 in response to a request for information from the defendant on 31 July 2011 asking for photographs of the claimant and any dependants. In the letter of 3 August 2011 there was reference to the fact that the claimant resided with his unmarried partner who was named, and the couple's two children, who were identified and photographs of whom were enclosed and reference to the fact that the unmarried partner had applied for leave to remain a few years earlier.
It is common ground that prior to 20 July 2011 it was the practice of the Secretary of State, when considering legacy cases such as those of that of the claimant, to take one of two decisions: either to remove the person or to grant the person indefinite leave to remain. But on 20 July, the Secretary of State issued policy guidance changing the length of leave to be granted to a maximum of three years.
Accordingly, the policy that was in operation at the time the decision was made on 26 August, was that the choice was between removal and the grant of discretionary leave to remain up to three years.
In response to the decision letter there was, in effect, a subsequent application for discretionary leave to remain on 13 November 2011, which was granted on 13 December to the extent of allowing the claimant permission to remain until 21 October 2013, which was the date up to which the claimant's unmarried partner had been given leave to remain pursuant to an earlier application.
The application for permission was refused on the papers by Mr James Goudie QC on 20 January 2012 on the sole ground that the discretionary leave to remain granted until 21 October 2013 for the claimant with his partner and child was an adequate remedy. If that is right, that is a complete answer to this claim. Mr Nathan, on behalf of the claimant, submitted that the answer to the alternative remedy point, is that the change of policy on 20 July 2011 was unlawful or at any rate that the claimant had a legitimate expectation that what would be applied was the prior practice of a choice (the only choice available to the Secretary of State in a legacy case such as this) between removal and permanent residence.
For that submission, he relied on a combination of two matters. First, a statement to Parliament by the Home Secretary in July 2006 that the backlog of cases would be cleared within five years or less and a statement of that commitment set out in a July 2006 Home Office report called "Immigration and Nationality Directorate Review. Fair, Effective, Transparent and Trusted" which included the statement, "We will deal with the legacy of unresolved cases within five years or less".
Second, he relied on a second document consisting of a secretarial note of the CRD within the UK Border Agency minutes of the September 2008 meeting of the Case Resolution Stakeholders sub group of the National Asylum Stakeholder Forum, which stated:
"A CRD case's conclusion is one that has either been granted permanent residence or removed from the country. This includes voluntary departure, assisted voluntary departure and enforced removals."
In addition, reliance is placed on a statement at that meeting by Emily Miles, then director of the CRD and Chair of the Case Resolution Stakeholder subgroup, that grant of discretionary leave did not constitute a resolution.
Reliance is placed on the well-known exposition by the Court of Appeal in Nadarajah, ESSHD, [2005] EWCA Civ 1363, of the conditions that need to be met for a legitimate expectation, namely that there has to be the issue by public authority of a promise or the adoption of a practice which constitutes a representation as to how it proposes to act in a given area.
In my judgment, the matters relied on by the claimant to which I have referred do not arguably satisfy that condition. They do not, in my judgment, arguably constitute a promise that the current practice would be maintained indefinitely. Rather they constitute a description of the then current practice.
That being so, in my judgment whatever is the validity of the challenge to the inadequacy of the 26 August decision letter by reference to whether it did or did not comply with paragraph 53.1.4 of the guidance, the decision of Mr Goudie QC must be right, namely that it is rendered academic by the fact that, by the time the decision was made, the claimant was not entitled to indefinite leave to remain. Therefore, although he could have got up to three years, in practice,...
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