Sajmir Jaku and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 11 March 2014 |
| Neutral Citation | [2014] EWHC 605 (Admin) |
| Date | 11 March 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/10351/2012, CO/10427/2012, CO/367/2013 |
[2014] EWHC 605 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Case No: CO/10351/2012, CO/10427/2012, CO/367/2013
The Queen on the Application of
Ms Frances Allen (instructed by Malik and Malik) for the First Named Claimant
Mr Raza Husain QC and Miss Ripon Akther (instructed by Malik and Malik) for the Second Named Claimant
Ms Nicola Braganza (instructed by Latitude Law) for the Third Named Claimant
Ms Kate Olley (instructed by Treasury Solicitors) for the First Defendant
Ms Julie Anderson (instructed by Treasury Solicitors) for the Second and Third Defendants
Hearing dates: 4 th and 5 th February 2014
I heard these three cases together as they raised similar issues about the effect of the Legacy Programme on the SSHD's decisions on purported fresh claims made by the Claimants. Mr Prenga's claim was settled, leaving a costs issue which I shall come to at the end of this Judgment. This judgment adds to the growing number of judgments on the Legacy Programme in which Claimants have raised misconceived arguments in an endeavour to show that the SSHD's decisions on what they asserted to be fresh claims were unlawful.
For present purposes, I need say little about the Legacy Programme. It has been set out in detail in many cases and summarised in others. In 2007, the Home Office faced a large backlog of asylum claims, arising from the rapid increase in such claims in the late 1990s and early 2000s, which had not been resolved either by a grant of some form of leave to remain or by removal of the unsuccessful claimants. The Home Office wanted to avoid new asylum claims simply joining the back of that queue. So it decided that asylum claims received after 5 March 2007 would follow the processing and decision-making targets in the New Asylum Model, NAM, by whatever name now known; those claims received on or before 5 March 2007 constituted the Legacy Programme. The majority, but at that time by no means all of the cases in the Legacy Programme, were not awaiting the first decision on the initial asylum claim, but rather a decision on further claims, said to amount of fresh claims, especially from failed asylum seekers whose removal had not been achieved, or were failed claimants awaiting removal.
There are no Immigration Rules which govern claims or cases in the Legacy Programme but not claims or cases in the NAM; and the policy in Chapter 53 of the Enforcement Instructions and Guidance, EIG, is applicable to both the Legacy Programme cases and to cases in the NAM. In either programme where the Immigration Rules do not entitle someone to the grant of leave to enter or remain, their case is then considered outside the Rules against the policy in Chapter 53, although there are provisions in the Rules to be considered before a removal decision is taken.
I shall come to what is meant by the "conclusion" of a case within the Legacy Programme, but taking it simply for the moment, where a case is not concluded by actual removal or grant of leave, it remains within the Legacy Programme if the original application was made on or before 5 March 2007, however often a further claim or decision is made after that. It remains in the NAM if the claim is made after 5 March 2007, however long before that the applicant had arrived in the UK. If two applicants for asylum arrived on the same day in 2001, and one made the asylum application on 4 March 2007 and the other on 6 March 2007, their claims would always be considered after 5 March 2007 in different programmes.
There is no provision for the making of an application to be considered as part of the Legacy Programme; a person either had or had not made a claim on or before 5 March 2007 and that claim either had or had not been concluded. The language of applications in this context, which both UKBA and applicants use, much as a matter of convenience, has no formal significance. It is often used in the context of an application by someone who falls within the Legacy Programme to have further representations considered as a fresh claim, although of course there would have been some who were applicants in the sense that their application for asylum had not yet received even an initial decision. But it is not a Programme one can apply to join.
At the heart of much of the litigation over the years have been eventually largely fruitless and in my judgment misconceived attempts by Claimants to show that there was a special and more favourable policy which should be applied to those in the Legacy Programme, derived from a target or aim as to the date by when decisions would be made. This target then was elevated into a legitimate expectation; missing it was said to create unlawful delay such as to create an historic injustice, leading to arguments that particular forms of leave should be granted, that policies should be treated as frozen, that particular periods of residence should be given great weight, all deriving from a misreading of policy and especially of alleged policy documents at a level below the EIG.
Legacy Programme Authorities
I now turn to the cases which set out principles and conclusions from the evidence about the Legacy Programme. A summary of their effect by Lewis J in Mohammed v SSHD [2014] EWHC 98 (Admin) serves as a useful introduction:
"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)."
The first case to describe the background to the Legacy Programme was FH and Others v SSHD [2007] EWHC 1571 (Admin), Collins J, paragraphs 12–18. That case was however not concerned with the outcome of the decision-making process but with the lawfulness of the delays which were involved in asylum claims decision-making; unlawfulness would have had to be met by the application of further resources. The Government set itself a five year target, ending in July 2011, for concluding, in the simple sense, all the Legacy Programme cases. Collins J made no findings as to the legal significance of such a target beyond its relevance to the issue he faced over the lawfulness of delay.
The next case commonly cited, and the first in the more recent line of legacy cases is Hakemi and Others v SSHD [2012] EWHC 1967 (Admin), Burton J. In July 2011 the Casework Resolution Directorate, CRD, created to deal with the resolution of the cases in the Legacy Programme, transferred the remaining active cases and the "controlled archive" cases, ones in which there were various difficulties in their resolution, such as missing files or loss of contact, to the Case Assurance and Audit Unit, CAAU. Burton J deals with some of the issues which arise here, including the meaning of a slightly garbled passage in Chapter 53 EIG, and the lower level of alleged policy relied on, two emails in particular, and the significance of what officials from UKBA and CAAU had said in witness statements. These were said to amount to unpublished policies; Burton J did not find that they were policies, see paragraph 32.
A case often cited in this context is Mohammed v SSHD [2012] EWHC 3091 (Admin), Stephen Morris QC sitting as a Deputy High Court Judge. He referred extensively to the evidence considered in Hakemi. He interpreted Chapter 53 EIG, as amended, as requiring significant weight to be attached to a period of residence of 6 years or more. The letter under challenge in that case had made no specific reference to that context, nor had absconding been considered as a weighty countervailing factor. By the time he came to quash the decision, the Immigration Rule to which the EIG cross-referred as a source of relevant factors had been changed; no longer was it paragraph 395C, but paragraph 353B as from 13 February 2012, which was more restrictive in approach. As the broader 395C approach applied at the time of the unlawful decision, as he found it to be, he concluded that the SSHD, on reconsideration, ought to apply the factors in paragraph 395C or at least ought to consider whether, if the Claimant would have succeeded on the application of that paragraph, it would be unjust for her to fail now on the application of paragraph 353B, if that is how the decision on paragraph 353B would emerge. (In fact, she lost on reconsideration and her further challenge has so far failed at the paper permission stage.) I shall have to return to that decision.
Mitting J helpfully summarises the factual and legal nature of the Legacy Programme in Shah v SSHD [2013] EWHC 2206 (Admin).
The SSHD's evidence on Legacy Programme issues was the subject of cross-examination in Geraldo and Others v SSHD [2013] EWHC 2763 (Admin), King J. The issue was whether the policy in effect from 20 July 2011 of granting three years Discretionary Leave to Remain, DLR, instead of Indefinite Leave to Remain, ILR, if an applicant within the Legacy Programme was granted leave outside the Rules, was in breach of some...
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