The Queen (on the application of Aklilu Tesfay) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Christopher Butcher QC |
| Judgment Date | 10 July 2014 |
| Neutral Citation | [2014] EWHC 2109 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/7482/2012 |
| Date | 10 July 2014 |
[2014] EWHC 2109 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Christopher Butcher QC
(sitting as a Deputy Judge of the High Court)
Case No: CO/7482/2012
Paul Turner (instructed by Barnes Harrild and Dyer) for the Claimant
Julie Anderson (instructed by TSol) for the Defendant
Hearing dates: 10 & 11 June 2014
This is an application for Judicial Review brought by Aklilu Tesfay, to whom I will refer as "the Claimant". The Judicial Review Claim Form was lodged on 25 June 2012. The decision which it was said should be reviewed was " UKBA's failure to make a legacy decision and grant Indefinite Leave to Remain ("ILR") to the Claimant". It was said that no date could be ascribed to the decision, because the Judicial Review " relates to a failure to make a decision".
The substantive remedy sought in the Claim Form was as follows:
"1. A Mandatory Order compelling the Defendant to consider the Claimant's case under the legacy.
2. A Declaratory Order that the Defendants delay is unlawful.
…
4. Any other relief the honourable Court may deem appropriate."
Permission to apply for Judicial Review was refused by Hickinbottom J on paper on 14 November 2012, but was granted at a renewed oral hearing by James Lewis QC, sitting as a Deputy High Court Judge, on 24 May 2013.
The Grounds relied on in the Claim Form were essentially two fold, namely: (1) "that the failure to make a decision on the Claimant's outstanding application under the Legacy Scheme is unlawful"; and (2) "that the failure to grant 'ILR' is unlawful."
The Claimant's Immigration History
The Claimant entered the United Kingdom illegally on 16 December 2003, and claimed asylum. The foundation of the claim for asylum, as it is summarised in the Home Office's letter of 3 February 2004, was that the Claimant had a fear of persecution in Ethiopia. This was on the basis that, having an Eritrean mother, and having resided in Eritrea until—as he alleged—he was deported from Eritrea to Ethiopia in April 2003, he would face mistreatment due to his race if returned to Ethiopia.
The application for asylum was refused on 3 February 2004. The Immigration and Nationality Directorate of the Home Office wrote to the Claimant on that date, stating that it had been concluded that he did not qualify for asylum or Humanitarian Protection. The Reasons for Refusal Letter stated that it was not accepted that the Claimant had been deported to Ethiopia in April 2003, and that it was not accepted that what the Claimant said had subsequently happened in Ethiopia was true. The letter stated that:
"The opinion is held that you have fabricated that you were forcibly deported from Eritrea to Ethiopia in an attempt to enhance your asylum claim. It is considered that this fabrication undermines the credibility of your entire asylum application and accordingly it is not accepted that you were ever detained and mistreated by the Ethiopian authorities."
Also on 3 February 2004, the Claimant was informed of the availability of an appeal. The Claimant brought an appeal, on asylum and Human Rights grounds, which was lodged on 24 February 2004.
By a Determination Promulgated on 2 June 2004 the Adjudicator in the Immigration Appellate Authority dismissed the Claimant's appeal. In the course of the Determination and Reasons, the Adjudicator stated that there were a number of matters which cast doubt on the Claimant's credibility (paragraph 30), and stated that he was not satisfied that the Claimant had been forcibly deported from Eritrea; that if the Claimant was in Ethiopia, it was on a voluntary basis; and that he was not satisfied that the Claimant had been detained as claimed. The Adjudicator stated that he believed that the Claimant's account had been fabricated for the purposes of the appeal.
On 29 September 2004, the Claimant was granted permission to appeal from the decision of the Adjudicator. The Appeal was heard on 8 August 2005, and the Determination of the Asylum and Immigration Tribunal was Promulgated on 18 August 2005. The appeal was dismissed. As part of the Determination and Reasons the Tribunal stated:
"We consider that the Adjudicator was perfectly justified when he found that he could not be satisfied the appellant was forcibly deported from Eritrea, and that in fact the account had been fabricated for the purposes of the appeal."
The Claimant became appeal rights exhausted on 6 September 2005. He did not, however, leave the United Kingdom. He submitted further representations on 1 March 2006. These were refused by the Defendant on 8 April 2008. The Claimant did not seek to challenge that refusal by way of Judicial Review. On 2 March 2009, the Claimant made further representations for a second time. Those second set of further representations were refused on 29 March 2011 ("the 29 March 2011 decision").
That decision to reject the further representations was notified by a letter from the UK Border Agency with an attached Consideration of Submissions form (together "the 29 March 2011 letter"). The Consideration of Submissions was in three parts: (1) "Submissions that have previously been considered"; (2) "Submissions that have not previously been considered but which do not create a realistic prospect of success", being firstly Protection based Submissions, and secondly Non-protection based Submissions involving a consideration of the Claimant's Article 8 ECHR claim; and (3) "Consideration of compassionate circumstances", making reference to Paragraph 395C of the Immigration Rules and the factors there set out.
The 29 March 2011 letter contained the following:
"I am writing to inform you that your case has now been fully reviewed by CRD and the outcome is that you have no basis of stay in the United Kingdom. You should make arrangements to leave the United Kingdom without delay.
In all circumstances we prefer that those with no basis of stay in the United Kingdom leave voluntarily, but should you fail to do so, then your removal may be enforced."
No challenge was made to the decision of March 2011 at the time. As already set out, the present proceedings were lodged only in June 2012, alleging a failure on the part of the Defendant to make a "legacy decision".
On 22 August 2013, the Older Live Cases Unit ("OLCU") of UK Visas & Immigration sent to the Claimant an "Article 8 supplementary refusal letter". This contained a supplemental consideration of the Claimant's Article 8 submissions, and concluded that the decision to reject those submissions should be maintained. On 29 August 2013, the Defendant sent to the Claimant a supplementary refusal letter ("the 29 August 2013 letter") which considered the position of the Claimant by reference to Paragraph 353B of the Immigration Rules. The letter stated that the Defendant had considered all the relevant factors " and is content that your removal from the United Kingdom remains appropriate".
The Claimant's Contentions
While there are some issues as to the extent to which the Claimant has permission to rely on the grounds advanced, it will be helpful here to summarise the nature of the contentions put forward by Mr Paul Turner on behalf of the Claimant.
Four grounds were advanced in support of the contention that the Defendant had acted unlawfully. They were as follows:
i) That the Defendant had failed to conclude the Claimant's case "as a legacy case".
ii) That the decision of 29 March 2011 " cannot be construed as a lawful decision/conclusion of [the Claimant's] case under the legacy criteria". In this context it was said, in particular, that there had been no proper consideration of: (a) his length of residence; (b) the Defendant's own delay in deciding his previous fresh claims; and (c) his "unremovability".
iii) That the 29 August 2013 letter was no answer to the claim, on the basis that it: (a) was factually flawed; (b) failed to have regard to all the relevant factors in the Claimant's case; (c) failed to have regard to his length of residence; and (d) failed to have regard to his "unremovability".
iv) That the Claimant has been left in a state of "limbo". It was contended that, as an undocumented Eritrean he was not removable, and nor could he depart voluntarily; and that, in consequence, the Defendant should have granted some form of leave to remain in order that he was not "in limbo".
The Legal Framework
The basic legal framework was summarised by Simler J in R (Hamzeh and Others) v SSHD [2013] EWHC 4113, and I adopt her analysis.
"The legal and policy framework
16. Section 4(1) of the Immigration Act 1971 confers on the Defendant [viz the Secretary of State for the Home Department] the power to grant leave to remain in the UK, and to determine the period of any such leave. By s. 10 Immigration and Asylum Act 1999 (the "IAA 1999"), the Defendant has power to remove those who fail to comply with conditions attached to their leave to enter or remain beyond the time limited by their leave, or use deception in seeking leave to remain.
17. To enable some degree of consistency, decision-makers on behalf of the Defendant exercise their discretion in accordance with the Immigration Rules and guidance issued by the Defendant including in the form of Asylum Policy Instructions. The Immigration Rules are not subordinate legislation. They are to be seen as statements by the Secretary of State as to how she proposes to control immigration. But as the Supreme Court held in Alvi v SSHD [2012] UKSC 33, the scope of her duty is now defined by statute. The obligation under section 3(2) of the 1971 Act to lay statements of the rules, and any...
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