R Miranda Ortiz v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Blake |
| Judgment Date | 10 October 2014 |
| Neutral Citation | [2014] EWHC 4226 (Admin) |
| Docket Number | CO/522/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 October 2014 |
[2014] EWHC 4226 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Blake
CO/522/2012
Miss N Braganza (instructed by Elder Rahimi) appeared on behalf of the Claimant
Miss J Lean (instructed by Treasury Solicitors) appeared on behalf of the Defendant
This is an application for judicial review of decisions that were finally made in May 2012, granting the claimant and his dependants, his wife and three children, discretionary leave to remain for three years.
The first claimant is a citizen of Ecuador, as indeed are all the members of his family. He entered the United Kingdom at some point in 2000 on a forged Spanish passport. In about November 2000, he was encountered by the immigration service, served with a notice of liability to removal as an illegal entrant, and then claimed asylum. Whilst this asylum claim was under consideration, the second claimant arrived in the United Kingdom. She is the wife of the first claimant. She also claimed asylum. The first claimant's asylum claim was refused in January 2003, and an appeal dismissed in May 2003. The second claimant's asylum application was refused and the appeal dismissed all in the course of 2004.
The third claimant is the elder daughter of the first two claimants. She was born on 31 August 2004. She is now ten years old. The fourth claimant is the younger daughter of the first two claimants, and she was born on 29 January 2006, so she is now nine. Like her sister, she has spent all her life in the United Kingdom. For completeness, a further child has been born to the couple.
The first claimant, after the refusal of the asylum claim, applied to be included in an application being made by his brother, who was in the United Kingdom, as a family member. The brother was given leave to remain indefinitely in July 2005. However, the first claimant was considered not to qualify for consideration as a dependant of his brother as the Secretary of State was not satisfied that the first claimant was living in the same household. His independent application for ILR under the then family policy was refused in March 2006 and a judicial review of that refusal was dismissed shortly thereafter.
Taking the position as of April 2006, at that stage the first two claimants were failed asylum seekers who had exhausted their appeal rights, were liable for removal to Ecuador as illegal entrants with no leave to remain, and their two daughters were not British citizens and accordingly were susceptible to removal with their parents. The Home Office records also suggest that during this period, in about September 2005, the first claimant had failed to report regularly as he was required to do so and was treated as an absconder.
No further action or events occurred in the immigration history until January 2009. On that date, the former solicitors acting for the claimants contacted the Home Office and revealed the existence of the children. This then resulted in an exchange of correspondence from that date, until September 2011, when a letter before action was issued, requiring the Home Office to make a decision on the family's position promptly, the response to which was that a decision would be made within six months. Then in April 2012 it was indicated that a decision would be made to grant limited leave to remain, which was granted the next month in May 2012.
The first claimant was asked to attend the Home Office on 28 October 2010 to produce his original versions of various documents required for processing of the case. The claimants point out that those documents had been provided by the former representatives on 29 July 2009, and although there had been potential confusion about two Home Office reference numbers, given the two separate bases of claim, by early 2010 it was pointed out that there were these two reference numbers by the former solicitors. On 2 July 2010, in response to a further request for photographs and birth certificates, they were provided.
Following the attendance on 2 October 2010, a letter in apparently identical terms was sent on 24 January 2011, asking the first claimant to attend again on 22 February, again to supply the original documents; confirmation of full name; original identity documents; immigration status documents; marriage certificates; documentary evidence of cohabitation; birth certificates of defendants; and four recent photographs; all of which had clearly been supplied on previous occasions. At that stage his current solicitors were acting for him, and queried why all this information was being sought again, again pointing out the two file numbers that might once have been a source of confusion.
There is no evidence of any engagement with the correspondence, and there were letters chasing the defendant as to what was happening on 12 May and 12 July 2011. Then, on 6 September 2011, there is the letter before action saying the decision under challenge was, "The ongoing failure to determine our clients' immigration status under legacy provisions," setting out the summary history of the matter, pointing out that the two daughters were attending primary school in London, pointing out that:
"The failure to make a decision is causing our client and his dependants a great deal of stress and anxiety. His wife is now pregnant and due to give birth again in February 2012."
The action required was determination of immigration status.
The Home Office responded on 27 September with the information that they aimed to complete the review within six months, but that letter appears not to have been actually sent until 7 November 2011. Judicial review proceedings were then commenced in December 2011, and the original claim required a decision to be made, but early in 2012 it was also stated that what should now be granted was indefinite leave to remain rather than a discretionary leave to remain for three years.
Grounds of judicial review were amended in the course of 2012, and permission to move the judicial review was granted by Philip Mott QC sitting as a Deputy High Court Judge on 5 December 2012. It is clear that permission was limited to the matters set out in two paragraphs of what was the claimant's then skeleton argument: one, has not acted fairly in respect of a public law duty and not provided reasons as to why some legacy cases were processed prior to a policy change on 22 July 2011; two, legitimate expectation that once the defendant decided to consider his case under the provisions of the legacy policy, and given that submissions were made in support of such a matter in October 2010, that he would be granted indefinite leave to remain under the previous policy rather than the discretionary leave to remain under the new policy.
"It is entirely as a consequence of the unreasonable and unexplained delay by the defendant that the claimant was granted three years' discretionary leave rather than ILR due to the change in July 2011."
Certainly it is the case that in July 2011, it seems as a result of some criticism of Home Office policy in these cases, the practice changed. Thereafter, it was considered that for any person who it was decided should not be removed and should be granted leave to remain, the normal period of leave to remain would be three years' discretionary leave to remain rather than indefinite leave to remain, as appeared to have been given in the vast preponderance of cases decided previously under the legacy policy in force from 2006. One factor apparently leading to that change of policy was that asylum seekers successful in their claim were given at that stage five years' leave to remain, and those who succeeded in the human rights claim, including an Article 8 family life claim, were also given three years rather than indefinite leave.
This hearing was further adjourned for various reasons in the earlier part of this year, and further information was provided by the Secretary of State as to the basis for a change of policy that was noted in a decision of the Court of Appeal called Clue v Birmingham City Council [2010] EWCA Civ 460, the decision handed down on 29 April 2010. It seems that there were then amendments to the skeleton argument of the claimant, but it was not until very recently that a formal application to amend the grounds of judicial review were made.
The claimant in the skeleton argument lodged for this hearing sought to develop three broad grounds: one, undue delay and failure by the defendant to prioritise the cases of unsupported families constitutes serious maladministration amounting to substantive unfairness; two, unlawful fettering of discretion whether to grant ILR to families with children; three, legitimate expectation that the claimants would be granted ILR.
In the event, objection was taken to this late change of grounds, particularly as directed to ground one, unsupported families. This related to the information that had been supplied arising out of the case of Clue, to which reference had been made. Very broadly speaking, when the legacy programme had been spelt out in 2006, there were four classes of case in which it was indicated priority would be given. One of those concerned cases where there were security or safety issues for making a speedy decision; a second class was where it was obvious that removal could be effected quickly; a third class was where the claimant, or dependants of...
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