SH (Iran) and Another v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Davis,Lord Justice Christopher Clarke,Lord Justice Aikens |
| Judgment Date | 12 November 2014 |
| Neutral Citation | [2014] EWCA Civ 1469 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2014/01526 |
| Date | 12 November 2014 |
[2014] EWCA Civ 1469
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
SIMLER J
CO/1067/2012; CO/10240/2012;
CO/1363/2012; CO/3550/2012
Royal Courts of Justice
Strand, London, WC2A 2LL
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
BURTON J
Co/528/2012
Lord Justice Aikens
Lord Justice Davis
and
Lord Justice Christopher Clarke
Case No: C4/2014/01526
C4/2013/1851
In the Matter of Applications for Permission to Appeal Against the Dismissal of Claims for Judicial Review
In the Matter of Applications for Permission to Appeal Against the Refusal of Permission for Judicial Review
In the Matter of an Application for Judicial Review
Hugh Southey Q.C. and Paul Turner (instructed by Barnes Harrild & Dyer Solicitors) for the Applicants
Paul Turner (instructed by Barnes Harrild & Dyer Solicitors) for the Appellant.
Julie Anderson (instructed by Treasury Solicitors) for the Respondent.
Hearing dates: 2 nd & 3 rd October 2014
Introduction
These are all so-called "legacy" cases. Five of them are conjoined applications for permission to appeal from an order of Simler J dated 20 December 2013 whereby she dismissed the applications of SH and NA for judicial review and refused to grant AN, SJ and BA permission to apply for judicial review: [2013] EWHC 4113 (Admin). The sixth case is an appeal from an order of 25 June 2013 of Mr Justice Lewis refusing the applicant, BA (Ethiopia), permission to apply for judicial review: [2013] EWHC 3334 (Admin).
Elias LJ granted permission to appeal in the case of BA (Ethiopia) on 18 February 2014. In the other five applications, the court (Underhill LJ and Sir Stanley Burnton) after an oral hearing on 15 July 2014 directed that the five applications for permission to appeal, in limited respects, should be listed to be heard together with the appeal in BA (Ethiopia). It was made clear in the judgment of Underhill LJ, with whom Sir Stanley Burnton agreed, that he had reservations as to the viability of the argument being advanced; but the court left the points to be decided at the same time as the hearing of the appeal of BA (Ethiopia) and so did not itself grant permission. The court on that occasion also rejected as not arguable certain other grounds of appeal sought to be advanced, and so refused permission to appeal on those aspects.
The common issue, and the principal (although not sole) issue, arising on these various applications and this appeal can be formulated in this way: was there an obligation, in the form of a commitment, on the part of the Secretary of State to "conclude" cases falling within the legacy programme relating to asylum cases either by the grant of leave to remain or by effecting the removal of the applicant from the United Kingdom? The Secretary of State says there was and is no such commitment. The applicants and appellant say there was and is: accordingly, they say, because none of the applicants and appellant has been removed each is entitled to, or at least to be considered for, a grant of leave.
The principal argument on the point was advanced by Mr Hugh Southey QC (who had not appeared below) leading Mr Paul Turner (who had appeared below) for the five applicants. Mr Turner also appeared for the appellant, as he had below. He adopted Mr Southey's oral arguments and advanced certain others specific to the case of the appellant. Ms Julie Anderson appeared for the Secretary of State.
Background facts
The legacy programme or scheme has been fully described in a number of well-known cases and is also the subject of full description in the judgment of Simler J below. It therefore calls for only the briefest outline at this stage. Suffice it to say, it was set up to deal with the vast backlog of cases that had by 2006 been identified. In respect of applications made prior to 5 March 2007 which had not been disposed of – several hundreds of thousands – responsibility for dealing with such cases was transferred to the Casework Resolution Directive ("CRD"). Many of those potentially within the programme were liable to removal, having previously exhausted their appeal rights. Many (although by no means all) sought thereafter to lodge fresh submissions and representations. By mid 2011 there were still over 100,000 cases remaining to be disposed of: albeit a very significant proportion of those related to cases where contact had been lost with the applicant or where there were other difficulties, causing such cases to be placed into what was called the controlled archive. In July 2011 the remaining cases and those in the controlled archive were transferred for resolution by a new unit called the Case Assurance and Audit Unit ("CAAU").
Each of the five applicants came to the United Kingdom from Iran. The appellant came to the United Kingdom from Ethiopia. The background facts are fully set out in the judgments below. The relevant details, for present purposes, can be shortly summarised as follows.
(1) SH (Iran)
So far as SH is concerned, he arrived in the United Kingdom on 30 January 2003. His claim for asylum was refused and his appeal thereafter dismissed on 24 September 2003. Permission to appeal was refused in January 2004. He did not leave the United Kingdom at that time.
On 21 July 2010 the applicant received a letter from the CRD confirming that his case was within the legacy programme being administered by the CRD and requesting certain information: which was supplied. Thereafter he left the United Kingdom for the Netherlands (to look for his family, as he was to say) but was returned on 17 February 2011 by the Dutch authorities. He was re-interviewed and his renewed asylum claim was again rejected by decision letter of 4 April 2011. The letter concluded: "Therefore, you have no further basis for stay in the UK and the arrangements will now be [made for your removal] from the country". Formal notice of refusal of leave to enter, and the proposal to give removal directions, was given on 16 May 2011.
A pre-action protocol letter, raising various contentions by reference to the legacy programme, was sent by the applicant's solicitors on 23 November 2011. It concluded by requesting that the Secretary of State "makes a decision on our client's outstanding application under the legacy programme that has now been concluded and grants our client indefinite leave to remain (ILR) in line with that scheme".
By letter of 21 December 2011 the CAAU responded. Among other things it said "CAAU will resolve cases by either removing individuals from the United Kingdom or granting them leave to remain in accordance with existing law and policy". The letter went on to note that there was no record of an outstanding application in SH's case and the position was maintained that he had no basis of stay in the United Kingdom.
Thereafter the claim form was issued on 19 January 2012. It claimed that the Secretary of State had unlawfully failed to make a decision on the applicant's "outstanding application under the legacy programme" and was entitled to a grant of indefinite leave to remain. Permission was subsequently granted.
(2) NA (Iran)
The applicant arrived in the United Kingdom from Iran on 28 December 2005 and claimed asylum shortly thereafter. His application was refused on 17 February 2006 and an appeal was dismissed on 24 May 2006.
On 20 April 2009 he submitted fresh representations. These were rejected on 10 February 2011, albeit it was internally noted that he could not then be removed. On 5 July 2011 further representations were submitted which were rejected on 14 March 2012. It was stated that the applicant had no basis of stay in the United Kingdom and should make arrangements to leave. On 26 November 2009 the CRD had indicated that his case was being dealt with as part of the legacy programme. Fresh solicitors sent a pre-action protocol letter on 28 May 2012, claiming a decision on the application under the legacy programme and the grant of ILR "in line with that scheme".
The claim form was issued on 8 July 2012, challenging the failure to make a decision on his outstanding application under the legacy programme. Permission was subsequently granted.
(3) AN (Iran)
The applicant arrived in the United Kingdom from Iran on 17 February 2003 and claimed asylum. His application was refused but he was granted exceptional leave to remain until 12 June 2005. Shortly before that date he made an application for further leave to remain. That was refused on 27 April 2007 and an appeal was dismissed in August 2007.
On 10 May 2010 he made a fresh claim, which was rejected on 18 August 2010. At that date an internal note was made that the case could not proceed to the applicant's removal as he was an undocumented Iranian.
On 8 December 2010 fresh solicitors asked the Secretary of State to consider the applicant's case under the legacy programme. Eventually on 28 November 2011 the CAAU wrote saying that the case had been allocated to it from the CRD and, as with other such letters, among other things saying that CAAU would resolve the cases by either removing individuals from the United Kingdom or granting them leave to remain in accordance with existing law and policy.
The claim form was...
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