R (Obienna) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Simon |
| Judgment Date | 27 June 2008 |
| Neutral Citation | [2008] EWHC 1476 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO Ref: CO/5365/2007 |
| Date | 27 June 2008 |
[2008] EWHC 1476 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Administrative Court
Mr Justice Simon
CO Ref: CO/5365/2007
Mr Satvinder Juss (instructed by Messrs CT Emezie) for the Defendant
Ms Katherine Olley (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 17 June 2008
HTML VERSION OF JUDGMENT
Introduction
This case concerns the backlog of applications for indefinite leave to remain in this country ('ILR' claims) from those who entered the United Kingdom illegally or who overstayed their leave to remain, but who have had long residence here.
A witness statement served on behalf of the Defendant demonstrates that there has been a chronic problem in dealing with these claims. The evidence of Kevin Romano, Deputy Director in the Border and Immigration Agency and Head of Unit of the Liverpool Charged Casework team ('LCC') since May 2007, is that in October 2005 there was a backlog of 32,991 cases and that 2 1/2 years later, in February 2008, there was a backlog of 30,400 cases. Among the backlog is the Claimant's application.
The Claimant applies for an order that the Defendant considers and/or grants his ILR claim and/or such other relief as may be deemed appropriate.
Chronology
On 1 February 2005, the Claimant's solicitor, Messrs CT Emezie, wrote enclosing the Claimant's application for indefinite leave to remain in the United Kingdom on the basis of his long residence. The letter enclosed a completed form in support of the application.
On 17 February 2005 an unsigned reply was sent by the Home Office, Immigration and Nationality Directorate (Managed Migration), in standard terms.
Thank you for the above application for a variation of leave to remain in the United Kingdom. This letter acknowledges receipt of the application and the payment of £155.
The application will now be passed to a caseworker for consideration.
We aim to complete 70% of postal applications within 3 weeks of receiving them in Immigration and Nationality Directorate (IND). We may not be able to complete applications within 3 weeks of receipt if they need further documents, enquiries or an interview, or if they are complex. We should normally deal with these within 13 weeks at most.
Unless you need to tell us about a change in circumstances (eg change of address or a different Representative), or to ask for urgently needed documents to be returned (such as your passport for urgent travel), there is no need to telephone or write to us about the progress of your application.
Please note that requests to speed up consideration will only be considered in exceptional circumstances and where there is documentary evidence of a need to travel in an emergency.
Over a year later, on 25 May 2006, the Claimant's solicitors wrote enquiring about the progress of the application. The Defendant failed to reply to this letter. On 28 November 2006 the Claimant's solicitors wrote again, referring to their letter of 25 May, and asking for a response to their enquiry. Again, there was no reply. On 17 April 2007, the Claimant's wrote a letter before claim, pursuant to the Judicial Review Protocol, stating that the Claimant had a legitimate expectation that his application would be dealt within the time mentioned in the 17 February 2005 letter. There was no response to this letter. On 21 May 2007 the Claimant's solicitors copied their letter of 17 April 2007 letter to the Defendant's Judicial Review Unit by recorded delivery.
In the absence of any response, the present claim was issued on 27 June 2007. The acknowledgment of service and summary grounds of defence were eventually lodged on 11 September. The delay in lodging these documents was said to be due to difficulties in obtaining instructions.
Ms Olley (for the Defendant) submitted that the summary grounds comprised the entirety of the Defendant's case, so that it was unnecessary to serve a skeleton argument in accordance with CPR 45 PD.15.2. In my judgment she was mistaken. First, the only authority that she relied on during hearing was not referred to in the Summary Grounds. Secondly, the summary grounds contained the following statements:
A system is now in place to deal with such cases and applications are being dealt with in a chronological order so far as is reasonably possible unless there are compelling or compassionate reasons for dealing with cases otherwise.
… The Claimant's application will be dealt with when it reaches the front of the queue and it is submitted that this application should not be used as a means of jumping this queue. (Emphasis added)
This statement did not, in fact, accurately set out the position as at 11 September 2007, as became apparent from the witness statement of Kevin Romano made on 11 February 2008. Thirdly, in the usual case, a skeleton argument is helpful to the parties and to the Court in focussing attention on the real issues at the hearing.
The relevant parts of Mr Romano's statement are in the following terms.
Background
LCC was established in October 2005 to deal with the backlog of paid applications for Further Leave to Remain or Indefinite Leave to Remain from applicants who either entered the country illegally, or had overstayed their leave to remain or enter. The backlog inherited was 32, 991 cases. LCC took ownership of the backlog on an incremental basis from October 2005, up to full ownership in May 2007. In practical terms this meant that as LCC expanded its caseworker numbers it took ownership of the backlog.
The backlog arose because of a lack of resources devoted to dealing with applications for leave to remain from overstayers, or those who had entered the country illegally, therefore committing immigration offences. There was one Immigration Service casework team, based in London, which dealt with these applications. Priority at the time was given to reducing the Asylum backlog.
It was necessary to have specialist caseworker knowledge to deal with these cases. This was because the cases in the backlog raised issues which required knowledge of the entire spectrum of immigration casework. Caseworkers would routinely have to consider cases under the Immigration Rules, European Convention of Human Rights, any Home Office concessions or policies. Furthermore, as these cases were overstayers or those who had entered the country illegally, caseworkers also had to initiate enforcement action on cases. This 'end to end' approach to casework was a new initiative, and therefore required caseworkers to have extra training to equip them with the necessary skills.
The System
A system was established in May 2007 with the intention of reducing the overall number of cases in the backlog. At the time it was thought that the best way to deal with the backlog was to split the casework function, so that a percentage of caseworkers would deal with cases in chronological order (oldest first), whilst other caseworkers dealt with new intake. New intake was targeted as it was assumed these cases would be less complex in nature and would eventually lead to greater numbers of removals.
There was also a third group of cases, which can be called 'expedited' cases. These came to our attention by virtue of their compelling and compassionate nature. These also included cases highlighted by MP's and by the Parliamentary Ombudsman which demonstrated compelling and compassionate circumstances.
The rationale was that this three pronged approach would target the oldest cases and the new less complex cases. Therefore, it would be the most effective way of reducing the backlog. It would also ensure that those cases with compassionate circumstances received priority.
In December 2007 it came to light that the levels of intake, which had not reduced as forecast, combined with the number of cases which it was considered appropriate to expedite meant that our entire caseworker resource was taken up dealing with the new intake and expedited cases. This meant that except for the cases which were expedited the older cases in the backlog were not being dealt with as effectively as had originally been planned.
The Current Situation
The response of the LCC to the above information coming to light was to urgently reassess our system of dealing with the backlog. In December 2007 it was decided to concentrate the majority of our casework resources on dealing with the backlog in chronological order, starting with the oldest first. We will now cease deciding new intake cases. We will, however, continue to deal with the expedited cases, such as the cases with a compelling and compassionate element, and potential vulnerable minors. The 2500 cases already sent to our holds in Liverpool, of which the majority are new intake cases will be decided before the change is applied. It is anticipated it will take approximately three months to clear the files held locally.
The backlog is approximately 30,400 cases.
Argument
For the Claimant, Mr Juss, made two broad submissions.
First, he submitted that the letter of 17 February 2005 raised a legitimate expectation that the application would be dealt with within a period of 13 weeks. He submitted that, where an explicit statement is made to a limited number of people by a public authority exercising a statutory function as to how it will discharge that function, there is a legitimate expectation, which will be enforced by the Court, as to how it will do so, see for example R v. North and East Devon health Authority, ex p. Coughlan [2001] QB 213.
Secondly, he submitted that the evidence of Mr Romano, showing the changes in the approach taken to dealing with old claims, demonstrated an...
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