R Mehmet Delipalta & Two Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Bobbie Cheema |
| Judgment Date | 12 December 2014 |
| Neutral Citation | [2014] EWHC 4218 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 December 2014 |
| Docket Number | Case No: CO/12568/2011 |
[2014] EWHC 4218 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Bobbie Cheema Q.C.
Sitting as a Deputy High Court Judge
Case No: CO/12568/2011
Rebecca Chapman (instructed by Elder Rahimi) for the Claimant
Julie Anderson (instructed by Treasury Solicitor) for the Defendant
Hearing date: 25th November 2014
Bobbie Cheema QC:
Introduction
The Claimants are Turkish nationals who wish to settle in the United Kingdom. This is a claim for judicial review of the Defendant's decision on 28 th September 2011 to grant the Claimants three years' discretionary leave to remain in the United Kingdom rather than indefinite leave to remain. Permission was refused on the papers by Hickinbottom J on 3 rd April 2012. On 4 th July 2012 an oral hearing of the renewed application for permission took place before Clive Lewis QC (as he was then) who ordered that the application be stayed pending the decision of the Court of Appeal in Hakemi v SSHD [2012] EWHC 1967 (Admin). Permission was granted with directions, including the lodging of amended grounds by Hamblen J following the renewed oral application for permission on 26 th March 2014.
The relief now sought is a mandatory order that the Claimant (together with his wife and son) be granted indefinite leave to remain. The current Grounds of Claim can be summarised:
i) The Defendant unlawfully failed to follow her own policy Priorities and Exceptional Circumstances during the period that the Claimant's case was included in the Legacy programme
ii) There was an unlawful delay in reaching a decision in the Claimant's case and the Claimant had a legitimate expectation that a decision would be reached in his case by 19 th July 2011
iii) At the time she made the decision in the Claimant's case there was an unlawful failure by the Defendant to follow her own discretionary leave policy and an unlawful fettering of discretion.
Essential Chronology
The Claimant and his wife first arrived in the United Kingdom in 1999 and claimed asylum. He was removed to Germany on third country grounds under the provisions of the Dublin Convention and then returned to Turkey.
In 2001 their son travelled to the United Kingdom and claimed asylum. His application was refused and his appeal against the refusal was dismissed in 2003. In that year the Claimant and his wife also returned to the United Kingdom and claimed asylum. They were again returned to Germany and then on to Turkey for the second time.
They travelled back to this country and entered for the third time in 2004. While in Turkey the Claimant had written a letter to the United Kingdom authorities and upon his arrival he instructed a solicitor to submit a written application for asylum. It is accepted on the part of the Claimants that this application should have been made in person although it is not conceded that no valid claim for asylum was in fact lodged. This is one of the matters I have to resolve.
The Defendant sent the Claimant a family questionnaire in 2005 for his case to be considered under the family amnesty policy but this was refused. In the meantime another son of the Claimant and his daughter also arrived in the United Kingdom and obtained indefinite leave to remain and British citizenship.
The Claimant approached his Member of Parliament, Mr Stephen Timms who made written representations to the Defendant in a letter dated 9 th December 2008. In his letter the MP set out what he had been told of the history including the 1999 asylum application, the 're-submitted' 2004 asylum application and the Home Office reference numbers for the Claimants. The MP asked
"What is the status of Mr and Mrs Delipalta's application? Given their poor health and the treatment they have suffered in Turkey, can a decision be made as quickly as possible?"
A response from the Case Resolution Directorate came on 29 th December 2008. It included these words,
"In the light of the particular circumstances of their case, Mr and Mrs Delipalta's application to remain in the United Kingdom will be considered as a priority. We will contact them as soon as a decision has been reached.
Please note that the Case Resolution Directorate is currently reallocating all cases. Mr and Mrs Delpalta's case will shortly be reallocated to the relevant case working team who will consider their case."
The Defendant's electronic file notes (GCID case notes) give no explanation as to why that letter was sent in those terms. It is accepted that it was not a standard letter sent to those enquiring about Legacy cases. The file notes simply refer to the letter from the MP.
On 29 th May 2009 the Claimant's solicitors, Stuart Karatas, wrote to the Defendant asking for their case to enter the Legacy scheme and be granted indefinite leave to remain. It is of note that when the Claimant's claims history is set out in that letter there is no reference to a claim for asylum in 2004 but rather to an application for asylum made in 2003 being still pending.
Mr Timms MP sent a further letter dated 20 th November 2009 asking if any progress had been made in the intervening eleven months. The Defendant's reply of 23 rd December 2009 included the following,
"…we have now called for Mr Delipalta's case file and will be taken (sic) it forward. We will contact him as soon as a decision has been made on his case."
On 11 th May 2010 a new firm of solicitors, Elder Rahimi Solicitors wrote to the Defendant asking for urgent confirmation of the position. In July 2010 the Claimant suffered a heart attack. His solicitors contacted the Defendant with this information and observations about the uncertainty of the Claimant's status not helping his condition. Included with the letter was evidence of the Claimant and his family's settled life in Britain.
Thereafter on 16 th July 2010 a letter before action was sent making specific reference to the letters to Mr Timms and this time also to a 2004 asylum claim. By response on 9 th August 2010 the Defendant wrote (spelling corrected)
"It has been decided to conclude your client's case at the earliest opportunity. Your file is currently being routed to our case preparation team who will then begin the process of conducting further checks. The file will then be forwarded to a caseworker in our team to consider your client's case."
Further correspondence followed and on 26 th October 2010 the Defendant requested photographs of the Claimant and his dependents and other information. This was responded to in November 2010. No decision was issued. A further letter before action was sent dated 22 nd June 2011. In the response on 12 th July the Defendant stated that the Claimant's case had not been dealt with under the Case Resolution Directorate Legacy scheme but had been allocated to a small unit, Case Assurance and Audit Unit, which was dealing with cases where contact had not be made with the Claimant or where the case had not be concluded due to ongoing operation activity and a decision would be made within the next three months. The Claimant submits that his case could not have fallen into either of those categories.
Another letter was written by Mr Timms MP on 20 th July 2011 asking for the Claimant's case to be expedited as a matter of urgency. On 18 th September 2011 the Defendant granted the Claimant and his dependents discretionary leave to remain and this information was conveyed to Mr Timms MP by letter dated 4 th October 2011 and the Claimant received Immigration Service documents showing the discretionary grant of leave on 25 th November 2011.
Relevant Background and Law
On 25 th July 2006 United Kingdom Borders Agency announced the launch of a programme to resolve a backlog of unresolved claims for asylum. The Casework Resolution Directorate (CRD) was set up. The system of operation of what became known as the Legacy scheme or Legacy arrangements has been described in a number of recent cases including, most relevantly for these purposes, by Mr Justice King in R (Geraldo, Aroun & Iqbal) v. SSHD [2013] EWHC 2763 (Admin) (hereafter Geraldo) at [39–45] The essential features of Legacy were:
i) A total caseload of about 500,500 cases was outstanding in 2007. They each had to be reviewed. Some required no decision, for example where the claimant had since died or obtained European citizenship but these had to be sifted out. Decisions had to be made on live cases.
ii) The programme was operational only in that it was a concerted effort to deal with the backlog by providing extra manpower and resources, it was not an amnesty and there was no discrete 'Legacy policy'. Immigration decisions were made on the basis of prevailing law at the time. Legacy did not create any new substantive rights or new basis for the grant of leave.
iii) Cases were concluded only when either leave was granted or removal was ensured. Cases were progressed according to four published priorities (cases where the individual concerned posed a risk to the public, those in receipt of public support, where a decision was likely to be made to grant leave and cases where the individual could be easily removed from the UK.). However the CRD retained discretion to deal with exceptional or compassionate cases out of turn.
Where discretionary or indefinite leave was granted it was done as a result of the application of then current law. Where the applicant did not gain leave on...
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Upper Tribunal (Immigration and asylum chamber), 2015-09-08, [2015] UKUT 518 (IAC) (R (on the application of Bah) v Secretary of State for the Home Department (IJR))
...commitments to that effect. Relying upon the judgment in R (Delipalta and others) v Secretary of State for the Home Department) [2014] EWHC 4218 (Admin) at [28], Ms Anderson submitted that the Vine report was not binding. Its remit was to report on administrative efficiency. It cannot be au......
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R (on the application of Bah) v Home Secretary
...commitments to that effect. 25 Relying upon the judgment in R (Delipalta and others) v Secretary of State for the Home Department) [2014] EWHC 4218 (Admin) at [28], Ms Anderson submitted that the Vine report was not binding. Its remit was to report on administrative efficiency. It cannot be......