R Sadik Gunduz v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Ms. D. Gill |
| Judgment Date | 31 July 2014 |
| Neutral Citation | [2014] EWHC 2688 (Admin) |
| Docket Number | Case No: CO/9642/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 July 2014 |
[2014] EWHC 2688 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms. D. Gill
Sitting as a Deputy High Court Judge
Case No: CO/9642/2012
Mr B Ali of Aman Solicitors & Advocates for the Claimant
Mr T Poole of Counsel (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 19 June 2014
Introduction
This is another "legacy" case. The claimant challenges a decision of the defendant of 11 June 2012, maintained by a later decision of 2 May 2013, to grant him 3 year's discretionary leave to remain (DLR) until 10 June 2015. The claimant asserts that the defendant's failure to grant him indefinite leave to remain (ILR) was unlawful.
The defendant's so-called "legacy programme" has been described in detail in several judgments; for example, Hakemi & Others v. Secretary of State for the Home Department [2012] EWHC 1967 (Admin) (Burton J); Geraldo & Others v. Secretary of State for the Home Department [2013] EWHC 2763 (Admin) (King J); Hamzeh & Others v. Secretary of State for the Home Department [2013] EWHC 4113 (Simler J); Jaku & Others v. Secretary of State for the Home Department [2014] EWHC 605 (Admin) (Ouseley J); and Mohammed v. Secretary of State for the Home Department [2014] EWHC 98 (Admin) (Lewis J). Subsequent references to Mohammed will be to this judgment of Lewis J unless another judgment is specifically mentioned.
In brief, the legacy programme was introduced by the Secretary of State in 2006 in order the deal with a very large backlog of asylum and human rights cases where the applications had been made before 5 March 2007 but had not been resolved by removal or the grant of leave to remain. These cases were transferred to a specially constituted team called the Case Resolution Directorate (CRD) which dealt with the cases under the programme until July 2011 when the residue of cases then remaining (some 116,000 cases) were transferred to the Case Assurance and Audit Unit (CAAU). In reviewing the cases in the legacy programme, the CRD (and later the CAAU) considered whether to remove an individual by considering the relevant rule in the Immigration Rules. The relevant rule was para 395C until 12 February 2012. On 13 February 2012, para 395C was replaced by para 353B which was more restrictive as to the circumstances in which caseworkers may conclude that removal was no longer appropriate. In the instant case, nothing turns upon the precise wording of para 395C as compared with para 353B which makes it unnecessary to set out their provisions.
Chapter 53 of the Enforcement Instructions and Guidance (EIG), which sets out the guidance to caseworkers when considering para 395C/353B (as the case may be), changed over time to reflect not only the change in the Rule but also a change in the defendant's policy as to the type and duration of leave that is granted if a caseworker decided that removal was no longer appropriate pursuant to para 395C (prior to 13 February 2012) or para 353B (from and after 13 February 2012). In summary:
i) If the decision was made prior to 20 July 2011, the chapter 53 guidance did not specify the period of leave that could or should be granted. However, the practice was to grant ILR (97% of cases). More limited grants of leave (DLR and humanitarian protection) were made to those who qualified on the basis of "rights-based" criteria ( Geraldo at [55]).
ii) If the decision was made during the period from and including 20 July 2011 up until 8 July 2012, the chapter 53 guidance provided for a grant of DLR for a period of three years ( Geraldo at [67]).
iii) If the decision was made on or after 9 July 2012, the chapter 53 guidance provided for a grant of DLR for a period of 30 months ( Geraldo at [69]). There were two exceptions when, in the exercise of the Secretary of State's discretion to correct "a historic injustice arising from past illegality" ( Geraldo at [70]), the practice of granting DLR for 30 months may not be applied and the type and/or duration of leave that is granted may be different, as follows:
a) where the defendant had made a written commitment, in effect a promise, to the individual concerned that his case would be considered before 20 July 2011 but had failed to do so; and
b) where an erroneous adverse decision had been made before 20 July 2011 so that when the decision was re-taken on the same evidence the same type of leave should be granted as would have been granted if the decision had been correctly taken in the first place.
The claimant relies upon the second exception just described (hereafter the second exception) in relation to ground 1 (see below).
An overview of the claimant's case
The claimant's grounds have been amended, "reformulated" and then "consolidated". Two of the claimant's grounds (see below) rely upon submissions as to the effect of a consent order (sealed by the court on 23 December 2011) (hereafter the "consent order") agreed between the parties in previous judicial review proceedings (CO/7360/2011) brought by the claimant against two separate decisions of the defendant made on the same date (16 March 2011).
I will deal with the issues in this case as set out at [8]–[14] below. Given the issues explained at [8] and [9], it is necessary to quote at some length from relevant letters in the section under "Background Facts".
First, I will consider whether the leave that the claimant was granted on 11 June 2012 was leave pursuant to the defendant's policy guidance in respect of para 353B, as the claimant contends. The defendant states that the claimant was granted DLR on 11 June 2012 outside the Immigration Rules in line with the leave of his partner and not on the basis of para 353B or Article 8.
Second, I will consider the effect of the consent order. In particular:
i) whether its effect was that the decisions 16 March 2011 were "erroneous" or "no longer valid", as Mr Ali submitted (an argument that these previous decisions were quashed by the terms of the consent order has been abandoned); and/or
ii) whether its effect was that the defendant agreed to reconsider the decisions of 16 March 2011 by considering the claimant's up-to-date circumstances at the date of reconsideration and applying the policy in chapter 53 as it had existed as at 16 March 2011 when the practice was to grant ILR.
I will then consider the grounds which are as follows:
i) In reliance upon the effect of the consent order being as stated in above, ground 1 is that the claimant falls within the second exception. The defendant's failure to apply the second exception when the decision was "re-taken" on 11 June 2012 was therefore unlawful.
ii) In reliance upon the effect of the consent order being as stated in above, ground 2 is that, in deciding to grant the claimant 3 years DLR as opposed to ILR, the defendant has unlawfully discriminated against or acted conspicuously unfairly against the claimant.
iii) Ground 3 is that the claimant had a legitimate expectation that the defendant would reconsider his case under the legacy programme by applying the policy in chapter 53 as it had existed as at 16 March 2011.
iv) Ground 4 is that the defendant gave inadequate reasons for her decision to grant 3 years' DLR and not ILR.
v) Ground 5 is that the withdrawal of the policy to grant ILR "for those in the claimant's position as opposed to the generality of individuals in the legacy programme" was unlawful because the claimant was in the position of not having received a lawful decision under the legacy programme as evidenced by the consent order. The claimant relies upon KA (Turkey) v. Secretary of State for the Home Department [2012] EWCA Civ 1183.
vi) Ground 6 is that the deletion of para 395C and the introduction of para 353B by Parliament was made on the basis of a false premise, that is to say, on the basis of incorrect statements made by the Secretary of State to Parliament that all cases in the legacy programme had been completed.
The background facts
The claimant is a failed asylum seeker and national of Turkey. He entered the United Kingdom on 21 March 2005 and claimed asylum two days later. His asylum claim was refused by the defendant on 13 May 2005 and his appeal dismissed on 19 August 2005. He became appeal rights exhausted on 30 August 2005. On 6 February 2006 he applied for leave to remain under the EC Association Accession Treaty. This application was refused. On 3 February 2010 the claimant was encountered. On 17 February 2010, his then representatives (Montague Solicitors) wrote to the defendant stating: "We believe that our client comes within the heads of category considered under the legacy case load".
On 16 August 2010, the defendant wrote to the claimant (page 400 of the trial bundle (TB)) stating:
"Your case is in the backlog of older asylum applications that the UK Border Agency is in the process of concluding. The Case Resolution Directorate (CRD) are responsible for your case.
The Case Resolution Teams have been established to deal specifically with the older asylum applications, such as yours, and their aim is to resolve these cases by either removing individuals from the United Kingdom or granting them leave to remain in accordance with the existing law and policy.…" (my emphasis)
On 31 August 2010, the claimant made further submissions (TB403), stating "I have no children and have no evidence of lawful employment". The accompanying witness...
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