The Queen (on the Application of Nadeem Mirza) v Secretary of State for the Home Department

Hearing date: 10 July 2013

Approved Judgment

The Claimant applies for Judicial Review of the decision of the Defendant Secretary of State. The decision, dated the 10 February 2012, refused the Claimant leave to remain in the United Kingdom under the 'legacy' programme and/or to consider the representations of the Claimant as a fresh claim.

The decision was supplemented by a letter dated the 29 May 2013 confirming the February 2012 decision.

After consideration by two judges earlier in the process, permission to apply for Judicial Review was granted by Stadlen J at an oral hearing on the 5 December 2012.

The basis of the claim was that the Defendant created a legitimate expectation that the Claimant's case would be reviewed and concluded by July 2011; that the Claimant was entitled to indefinite leave to remain under Immigration Rules paragraph 395C; that removal from the UK would be disproportionate having regard to private and family life issues ( ECHR Article 8); and that the delay by the Defendant in communicating the legacy decision with reasons and the refusal of leave were irrational and unlawful.

The Defendant responded saying the matter had been considered at the time of the original refusal, and reconsidered in May 2013; that it was not a marginal decision; that it was considered in a timely manner having regard to the challenging administrative context of the legacy programme; and that the correct legal principles had been applied.

The last paragraph of the Defendant's letter of the 29 May 2013 was relied upon in particular as the encapsulation of the Defendant's decision:

'For completeness, the case has been considered on the basis of your claimed period of residence. The disputed period consist of illegal residence after an illegal entry to the UK following removal after a failed asylum claim. Whilst the period is of some length, given the circumstances in which the alleged residence is said to have been achieved, the adverse factors weigh against such significance being attached to that period as would lead to a different result if the period were substantiated. Bare unlawful residence accrued whilst out of contact with the UK immigration authorities after illegal entry cannot be considered to be significant in itself in this case and there are no other factors identified by paragraph 395C which would assist in justifying a decision not to pursue removal in this case. In particular, the independent judicial assessment was that there had been minimal integration into UK society. No independent cogent evidence is provided of special features associated with age, domestic circumstances, strength of connections with the UK, compassionate circumstances or personal history (including character, conduct and employment) to which substantial weight could be given. It is noted that there is no negative factor of known convictions in the UK but that does not justify a decision not to pursue removal in this case where there has been persistent and substantial disregard for UK immigration law.'

The Claimant's relevant history commenced with his entry into the UK on the 2 October 1997, when he claimed asylum. Asylum was refused. He was removed to Pakistan on the 18 May 2000. It was claimed that he returned on the 1 September 2001, to the knowledge of the Home Office. This latter fact appeared to be accepted by a letter dated the 4 September 2009 written by a UK Border Agency Official to the Claimant's solicitors. However, there were no records to indicate that the Defendant had knowledge or notice of such entry, and in my judgement the material part of the letter was a poorly phrased reflection of, rather than an acceptance of the claim that re-entry had occurred on that date.

A further application for asylum was pursued more recently, but rejected by the First-tier Tribunal on the 25 August 2010. The Immigration Judge found the Claimant not to be a credible witness.

There remained a dispute as to when the Claimant re-entered the UK. The decision of the Defendant was based on such evidence as she was given by the Claimant's solicitors. Before this Court...