R Mohammed v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lewis |
| Judgment Date | 27 January 2014 |
| Neutral Citation | [2014] EWHC 98 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 January 2014 |
| Docket Number | Case No: CO/6766/2013 |
[2014] EWHC 98 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Lewis
Case No: CO/6766/2013
Ms Amanda Weston (instructed by South West Law) for the Claimant
Ms Kate Olley (instructed by Treasury Solicitor) for the Defendant
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
The Claimant, Alan Ahmed Mohammed, is a national of Iraq. On 21 October 2009, he was granted discretionary leave to remain in the United Kingdom for 3 years. He subsequently applied for either indefinite leave to remain or a further grant of discretionary leave. On 4 March 2013, the Defendant granted the Claimant further discretionary leave to remain for a period of 3 years. In accordance with current policy, the Claimant will be eligible to apply for indefinite leave to remain once he has been in the United Kingdom for six years pursuant to the grant of discretionary leave. He will therefore be eligible to apply for indefinite leave to remain in 2015.
The Claimant, however, challenges the decision of 4 March 2013 to grant him a further period of discretionary leave rather than granting him indefinite leave to remain. The principal basis of challenge is that the Claimant suffered an historic injustice in that he should have been granted indefinite leave to remain in 2009 and that the Defendant should have exercised her discretion and granted indefinite leave to remain in 2013 in order to cure that historic injustice or that factor was at least, a material consideration which the Defendant should have taken into account.
Further, the Claimant contends that the Defendant applied a blanket policy, namely that a person would normally be expected to have accumulated six years of residence pursuant to two grants of discretionary leave, and failed to consider whether or not, exceptionally, indefinite leave ought to have been granted in this case. In particular, it is alleged that the Defendant failed to have regard to the ill-health of the Claimant and his wife and the fact that his circumstances were unlikely to change and failed to have regard to the interests of his daughter as required under section 55 of the Borders, Citizenship and Immigration Act 2009 ("the 2009 Act"). It is said that the Defendant reached a decision not reasonably open to her in deciding to grant a further period of discretionary leave rather than indefinite leave to remain.
THE LEGAL AND POLICY FRAMEWORK
Section 3(1) of the Immigration Act 1971 ("the 1971 Act") provides that persons who are not British citizens require leave to enter the United Kingdom. They may be given leave to enter and to remain in the United Kingdom either for a limited period or indefinitely. The power to grant leave to remain and to determine the period of leave is conferred on the Defendant: see section 4(1) of the 1971 Act. There are statutory provisions governing the removal of persons who have no leave to enter or to remain in the United Kingdom.
Decision-makers acting on behalf of the Defendant exercise their discretion in accordance with the Immigration Rules and policies and guidance issued in a variety of forms by the Defendant. Those Rules and guidance indicate in what circumstances individuals should be granted leave to remain. In addition, there are provisions governing removal of persons who have no right to remain in the United Kingdom. At the material time, rule 395C of the Immigration Rules set out a non-exhaustive list of relevant factors to be considered in deciding whether or not to remove an individual. These included age, length of residence in the UK, strength of connection with the UK, personal and domestic circumstances, criminal record, compassionate circumstances and representations received. Further guidance was given on these factors in chapter 53 of the Enforcement Instructions and Guidance ("the EIG"). At the material time, that guidance did not indicate what period of leave should be granted if it were decided not to remove the individual.
Furthermore, in July 2006, due to the backlog of unresolved asylum cases, the Defendant put in place a programme, often referred to as the legacy programme. The aim was to deal with cases of individuals who had claimed asylum prior to 5 March 2007 either by deciding to seek to effect removal of an individual or by granting him or her leave to remain. The aim was to deal with these cases within 5 years. The nature of the legacy programme has been described in, amongst other decisions, the decisions of Burton J. in R (Hakemi) v Secretary of State for the Home Department [2012] EWHC 1967 (Admin), King J. in R (Geraldo) v Secretary of Home Department [2013] EWHC 2703 (Admin.) and Simmler J. in R (Hamzeh) v Secretary of State for the Home Department [2013] EWHC 4113 (Admin.) In broad terms, those cases confirm that the legacy programme did not confer substantive rights or set out substantive criteria for determining whether or not to grant leave to remain. Rather it was an operational programme for dealing with the backlog of cases and cases would be dealt with in accordance with the law and policy applicable at the material time. There was no policy, or legitimate expectation, that all those who were not to be removed would be granted indefinite leave to remain nor was a refusal of indefinite leave to remain inconsistent with the rationale of the legacy programme (see Geraldo at paragraphs 55 to 59 and 123 to 126).
THE FACTS
The Claimant is an Iraqi national born on 25 October 1986. He came to the United Kingdom on 15 January 2005. He claimed asylum. That claim was refused on 16 February 2005 and an appeal was dismissed. The Claimant did not leave the United Kingdom. The Defendant did not take steps to seek to remove him to Iraq.
In about early June 2006, he formed a relationship with a British national and they began living together. On 20 December 2007, they had a daughter who is also a British national. The Claimant and his partner married on 10 September 2008.
The Claimant made further representations to the Defendant on the 13 th February 2009. Those representations are not included in the evidence submitted in this case. It appears from other documents such as a letter sent on 4 August 2010 by his solicitors that the representations were based on the fact that removal would be contrary to the Claimant's human rights. As the Claimant had applied for asylum prior to the 5 March 2007, these representations fell to be considered in accordance with the arrangements in the legacy programme. There is a note, dated 16 October 2009, which records the consideration given to the Claimant's case. That says as follows:
"1. In response to our further information request of 4 August 2009 the representatives South West Law sent in their letter of 26 August with significant enclosures. The applicant, now almost 23 years of age, has been in the UK for 4 years 9 months. In May/June he met Miss Sophie Jane James, a British citizen, (we have her passport) and they have cohabited since June 2006. He married Sophie on 10 September 2008, (we have the marriage certificate), her married name is Sophie Jane James Mohammed dob 16/04/87. They gave birth to a daughter, Lana Lorraine Mohamed, on 20 September 2007 at St Michael's hospital Bristol. The representatives with their letter 26 August 2009 have enclosed documentary evidence of cohabitation at the various properties their client and his wife have occupied since 2006 and the letter lists the nature of those documents. I am satisfied that the couple have cohabited since 2006. Sophie has sent in a hand written letter (26/08/09) of support for her husband to be allowed to remain in the UK. Sophie explains her husband helped care for her ill mother until her death in July 2009 whilst Sophie goes out to work looks after their daughter. Her husband does not work because he is not allowed to do so and this has made him depressed and he is on medication and has been referred to a mental health team. In a typed statement dated 25 August 2009 the applicant confirms the events described by his wife. In addition he points out that since May 2009 until July 2009 he attended an ESOL course at the Beacon Centre and hopes to restart again in September. It is evident that the applicant has an established family life in the UK. It is also reasonable to expect individuals who have been resident in the UK for this length of time to have established some ties in the UK and amongst others the applicant has established ties with his medical contacts making for a private life. These facts weigh in the applicants favour.
"2. The applicant was appeal rights exhausted on 30/06/05. The delay by the Home Office in concluding his case — by either granting leave or removing him — has to be acknowledged as contributing significantly to the residence he has accrued. Further submissions were recorded on the CID on 12/02/09 and are still outstanding.
"3. The applicant has moved house several times as follows:
Flat 4 Munscroft Court 32 Montpelier Weston Super Mare Approx August 06 until July 07
20 Stuart Road Weston Super Mare 2007 until Jan 2008
31 Upper Church Rd Weston Super Mare March 2008 until Oct 2008
Flat 1 467 Gloucester Rd Bristol Oct 2008 to present day
IS 96 forms were served 16/01/05, 03/08/05,...
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