Yusuf, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 3513 (Admin)

Case No CO/2432/2006

Case No CO/2472/2006

[2006] EWHC 3513 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Thursday, 21 December 2006

Strand

London WC2

B E F O R E:

MR JUSTICE DAVIS

Between

THE QUEEN ON THE APPLICATION OF RECHACHI, KALOBO, FODIL, YUSUFClaimant

-v-

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

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MS N FINCH (instructed by Birnberg Peirce) appeared for Rechachi

MR S VOKES (instructed by Tyndallwoods) appeared for Fodil

MR S COX AND (JUDGMENT ONLY) MR J WALSH (instructed by Refugee Legal Centre) appeared for Kalobo

MS P CHANDRAN (instructed by Birnberg Peirce) appeared for Yusuf

MR T OTTY QC (instructed by Treasury Solicitor) appeared for DEFENDANT

J U D G M E N T

Introduction

[1]Between 1998 and 2005 it had been the general policy of the Secretary of State for the Home Department to grant indefinite leave to remain in the United Kingdom to those recognised as refugees under the 1951 Convention. There was then a change of policy. With effect from 30 August 2005, and as had been foreshadowed for several months, persons having refugee status who were granted leave to enter or remain were granted such leave to enter or remain in the United Kingdom for a period of five years, subject to potential further extension.

[2]The claimants in these four claims for judicial review complain that delay in the handling of the consideration of their claims for asylum, and in particular in the handling of and giving effect to their successful appeals, meant that they were only formally granted the benefit of the recognition of refugee status after 30 August 2005; and in consequence were only granted leave to remain in the United Kingdom for an initial period of five years. They say that, without such delay and in accordance with their successful appeals, their cases would and should have been disposed of earlier and a formal grant of leave to enter or remain would and should have been made before 30 August 2005. In consequence, the argument goes, they would and should have been granted indefinite leave to remain.

[3]The claimants say that the decision not to grant such indefinite leave to remain is conspicuously unfair, in the public law sense, or contrary to their legitimate expectations. They variously claim quashing orders of the decisions to grant them five years' leave to remain and declaratory relief. Each claimant has previously been granted permission to bring the claim.

[4]The arguments on behalf of the various claimants differed in various respects. This was to a significant extent, although not solely, because the facts of each case were significantly different. Since it is elementary that challenges of this kind depend on the facts and circumstances of each case, I turn straight away to summarise the relevant chronology and background facts of each such case.

(i) Rechachi

[5]So far as the claimant Mr Rechachi is concerned, he arrived in the United Kingdom on 20 August 2002. He was from Algeria. On 27 August 2002, Mr Rechachi claimed asylum. It should be mentioned that there was subsequently quite a high degree of publicity relating to all this in view of his asserted political activities.

[6]On 5 September 2002, Mr Rechachi made a statement. He was interviewed on 24 September 2002. On 3 October 2002 a deferral of the decision was sought on his behalf pending an appointment with the Medical Foundation. Further updates were sought and, in the result, on 2 September 2003 there was then the submission of medical evidence.

[7]There was then a considerable period of delay. In the interim, as I will come on to say, there was publication of the statement of intent (if I can put it that way for present purposes) with regard to the proposed change of policy. At all events, on 4 April 2005 -- that is to say, nearly 18 months after the submission of the medical evidence -- the asylum claim was refused. On 20 April 2005 further representations were made by those acting for Mr Rechachi, and on 20 May 2005 his appeal against the refusal decision was heard.

[8]On 26 July 2005 there was promulgated a decision allowing his appeal. That decision had in fact been made in the course of June 2005. There was no appeal by the Home Office from that decision or attempt to seek to appeal from that decision by way of reconsideration or otherwise, and time expired for that purpose on 11 August 2005. On 18 August 2005 the lawyers acting for Mr Rechachi requested the issue of status papers. There were then chasing letters sent by the lawyers acting for Mr Rechachi in the course of October and November 2005. On 1 December 2005 an apology was given for the delay. It was said that an administrative error had occurred to blame for that delay. Special steps were then taken to hurry matters up with regard to Mr Rechachi and in the event he was issued on 20 December 2005 with a status document entitling him to five years' leave to remain. Thereafter, a letter before claim was sent and these proceedings were commenced on 16 March 2006. (ii) Fodil

[9]So far as the claimant Mr Fodil is concerned, the material chronology is this. On 30 September 2004, he submitted an asylum claim. (Mr Fodil had in fact submitted two previous claims and they had failed in between the years 1993 and 1996.) Thereafter, there were the announcements to which I have already alluded about the prospective change in policy. On 12 May 2005 his third asylum claim was refused. There was then an appeal, and a determination, which allowed his appeal, was promulgated on 7 July 2005 (the actual decision being dated 28 June 2005).

[10]On 30 August 2005, and in response to a letter from Mr Fodil's lawyers requesting his status document, it was said that it was standard Home Office policy to undertake a number of checks. By letter of 28 September 2005 the lawyers for Mr Fodil indicated that they understood that checks needed to be carried out but stated that by then the delay was unreasonable. In the event, five years' leave to remain was granted to Mr Fodil on 21 December 2005. (iii) Kalobo

[11]Turning to the claimant Mr Kalobo, he is a citizen of the Democratic Republic of Congo. He applied for asylum on 21 October 2004. On 17 December 2004 his asylum claim was refused. On 15 March 2005, however, his appeal was allowed by an adjudicator. The Home Office sought reconsideration of that; and on 3 May 2005 the AIT ordered reconsideration of the adjudicator's decision on two grounds put forward out of the four that had been advanced. In the course of July 2005 Mr Kalobo's lawyers on two occasions wrote letters to the Home Office contending that there was no merit in either such ground.

[12]On 18 October 2005 the matter came on for hearing before the AIT. On that occasion, the presenting officer appearing for the Home Office accepted that there had been no material error of law: and a decision was then given by the AIT affirming the adjudicator's decision, that determination itself being formally dated 21 November 2005. Thereafter, letters were sent on behalf of Mr Kalobo requesting that he be granted indefinite leave to remain. On 20 December 2005 status documentation, or purported status documentation, was issued. I will have to come on later to explain what that said, but it is sufficient here to say that, on one view at least, that documentation was ambiguous.

[13]On 4 January 2006 Mr Kalobo's representatives pointed out the apparent conflict on the face of the status papers. At all events on 25 January 2006, a second residence permit was issued, unequivocally giving Mr Kalobo five years' limited leave to remain. Thereafter, there was further correspondence between Mr Kalobo's representatives and the Home Office in which the Home Office explained its position: and these proceedings finally resulted. (iv) Yusuf

[14]Turning then to the position of the fourth claimant, Miss Yusuf, she claimed asylum on 20 March 2004. She is a lady who had come from Nigeria, and it was said that she had been trafficked for sexual purposes. On 17 May 2004 her asylum claim was refused. There was an appeal before the adjudicator in the course of November 2004; and on 16 December 2004 a decision allowing the appeal was promulgated. Thereafter, the Secretary of State sought permission to appeal by way of reconsideration, and reconsideration was ordered by the AIT on 6 April 2005. The matter then came on for substantive hearing on 8 November 2005. At that hearing, the Secretary of State indicated that the appeal was no longer to be pursued. I will have to explain later the circumstances in which that came about. But at all events the AIT then gave its determination, indicating that the original decision of the adjudicator should stand.

[15]On 30 November 2005 five years' leave to remain was granted to Miss Yusuf. In the course of January 2006 a letter before claim was sent. On 10 January 2006 the Secretary of State maintained the decision of 30 November 2005 and indicated that that was so notwithstanding the circumstances identified in the pre-action letter. The claim form was then issued. Change of Policy

[16]I turn then to the background to the changed policy.

[17]Until 1998 it was Government policy that a person recognised as a refugee would be granted initially four years' leave to enter or remain. In July 1998, however, the present Government announced in a published paper entitled: "Fairer, Faster, Firmer" that recognised refugees would be granted indefinite leave to enter or remain as the case may be. It was said, amongst other things, at the time that such policy would help such individuals more quickly to integrate into society, make the policy swifter and fairer in application and would be wholly consistent with the Government's commitment to a more humanitarian approach under the 1951 Convention.

[18]In due course, however, there was a change of mind by the Government. It published a paper called:

"Controlling our Borders: Making migration work for Britain" in February 2005. In summary this, amongst other things, was said: "

Section 3: Who we allow to stay and why This section sets out who we allow to stay in the UK permanently, and how we will tighten the criteria further to ensure that we carefully control permanent migration to provide long term economic and social benefit. We will: ... • Grant refugees temporary leave to begin with and keep the situation in their countries under review. If it has not improved with in five years we would allow them to stay, if it does they will be expected to return." Then a little further on this is said:

"We will bring the criteria for settlement nearer to those for citizenship by ... Granting refugees (those whose asylum applications are agreed) temporary leave rather than permanent status to begin with while we review whether the situation in their country has improved. If it has not improved after five years, we would grant them permanent status. Otherwise we would expect them to return. They may be joined by their immediate family and will be encouraged to find work and participate in local communities during their period of temporary leave ... A number of other European countries including France, Germany, the Netherlands Denmark and Norway grant refugees temporary leave to begin with rather than immediate settlement."

In my view, that was effectively notice to all concerned that the policy previously set out in 1998 was going to be changed.

[19]At an Asylum Processes Stakeholder Group meeting relating to this strategy held on 4 March 2005 it was explained by a senior representative of the Asylum and Appeals Policy Directorate that, under the new policy announced in respect of the five-year strategy, those recognised as refugees would initially be granted a period of limited leave rather than indefinite leave. It was estimated that the new policy would be "implemented" at the earliest in two to three months' time and that instructions would be issued when the new policy came into effect. Concern was expressed by a number of those attending at the potential effect of the new policy.

[20]On 19 July 2005 there was a written ministerial statement by Mr Tony McNulty, Minister for Immigration, Citizenship and Nationality, in the course of which he said this:

"I am also announcing today that from 30 August onwards refugees will be granted five years limited leave in the first instance, rather than immediate settlement as at present. If there is a significant and non-temporary change in conditions in a country, we would consider whether this should, in line with the Convention's cessation clauses, trigger a case by case review of the position of all or some refugees from that country with limited leave ... From 30 August onwards, beneficiaries of humanitarian protection will be granted five years limited leave, rather than three as a present. Similar policies on review will apply to them as to refugees with limited leave and they will also, from 30 August, benefit from immediate family reunion."

[21]There were no formal changes to the Immigration Rules at this time to give effect to the new published policy. In the event, on 25 August 2005 there was issued a guidance note by the Immigration and Nationality Appeals Directorate as operational policy guidance headed:

"Changes to Refugee Leave and Humanitarian Protection from 30 August 2005"

. It reads as follows:

"Purpose of this guidance note This note gives guidance on the types of leave to be granted, from 30 August 2005, to refugees and people who qualify for Humanitarian Protection. It also briefly reminds colleagues of the leave they should grant in other cases, following an allowed appeal. The new periods of leave Ministers have decided that, from 30 August 2005: • Refugees will be granted an initial period of five years' Leave to Enter/Remain, rather than ILR; and • Humanitarian Protection leave will be granted for five years, rather than three as now, and will not be granted for shorter periods. The new provisions will apply to all grants made by AIU on or after 30 August, regardless of when the decision to grant leave was taken or the appeal allowed. In order to avoid having to try and guess precisely when AIU will make a grant, SEOs are advised not to change the periods of leave they specified until 30 August. However, all grants made on or after that date will be under the new provisions, even if leave had been specified under the old provisions. Circumstances in which it may still be appropriate to grant ILR Where a claimant is to be granted leave on or after 30 August but we had previously undertaken to grant him/her ILR, we should honour that undertaking. Where there has been a significant delay in actioning an appeal and that delay: • is out of step with other appeals of a similar nature; and • is for reasons attributable to the Home Office; and • means that leave is being granted on or after 30 August when it otherwise would not have been; then it may be appropriate to grant ILR instead of limited leave. Such a decision should not, however, be taken without consulting the AD responsible for AIU. Family reunion and other benefits The change to the period of leave being granted will not affect refugees' other rights. They will still be entitled to family reunion, travel documents and to use the welfare state/NHS, as they are now. Family reunion rights will be extended to those who are granted leave on Humanitarian Protection grounds on or after 30/8/05. These people will now be able to be joined by their spouses, minor children etc on the same terms as are available to refugees. Active Review and grants of further leave Subjects who have been granted leave as a refugee, or HP leave, under the new provisions will be subject to a review of their claims if, during their initial five years' leave, Ministers are satisfied that there has been a significant and non-temporary change in the conditions in their country. Such reviews will be announced to Parliament and separate instructions will be issued setting out the scope of the reviews and procedures for conducting them. If that happens, then a decision will be taken on whether they still qualify for asylum/HP and, if they do not, their leave will be curtailed so that no leave remains. Any such curtailment would attract a right of appeal. However, a person who ceases to qualify for asylum or HP may qualify for leave on some other basis (for instance on article 8 grounds, in which case DL may be appropriate). In such cases, leave will be varied rather than removed altogether. Refugee leave will also be reviewed, and if appropriate curtailed, if: • the person has voluntarily re-availed himself of his country's protection, or has otherwise brought him/herself within the scope of the Refugee Convention's cessation provisions; or • evidence comes to light showing that the initial grant of leave was obtained by deception; or • the person acts in a way that would bring him/her within the scope of the exclusion provisions of the Refugee Convention (eg if s/he is convicted of a particularly serious crime and is a danger to the community), or has engaged in what we regard as unacceptable behaviour. The position is similar in HP cases (see paragraphs 5.3 and 5.4 of the API on Refugee Leave and section 7 of the API on HP for further details); However, provided this does not happen, and the person applies in time for further leave before his/her initial grant expires, s/he will be granted ILR/E provided s/he does not fall within the exclusion or cessation provisions of the Refugee Convention, and has not been convicted of a particularly serious crime, and provided his/her presence here is not otherwise deemed to be unconducive to the public good (see paragraph 5.4 of the API on Limited Leave or, for HP cases, para 2.5 of the API on HP for further details). Discretionary Leave, and grants in managed migration/Port cases None of these changes affect Discretionary Leave, which will still be granted as before to people who qualify for it but do not qualify for Refugee leave or Humanitarian Protection. Remember that claimants who are excluded from the protection of the Refugee Convention by Articles 1F or 33(2) will also be excluded from Humanitarian Protection. Thus if they are granted and leave (and Ministers can decide to refuse them altogether), it will have to be six months' Discretionary Leave, with active review at the end of that period. Similarly, nothing in this note changes the approach we should take to allowed Managed Migration cases (or non-asylum Port cases). These should still be sent to NCC6 (for Managed Migration) or to the Port for leave to be granted. Remember that there is no need to specify the type or duration of leave in appeals that were allowed under the Immigration Rules."

[22]Although some complaint was made before me that such guidance note received little in the way of publicity at the time, it is not suggested that it is invalid for that reason alone so far as its effect is concerned. It is also to be noted that each of the four claimants before me expressly accepts that in principle a grant to refugees of five years' initial leave to enter or remain is of itself capable of being compatible with the requirements of the 1951 Convention.

[23]There was debate before me as to the true significance of the differences between five years' initial leave to remain and indefinite leave to remain. The most important difference, as it seems to me, from the perspective of the refugee, is that it gives rise to a lack of certainty, in that if the situation in the country of origin has improved in that time, the refugee is liable to be required to be returned there. As it was put by Mr Cox, appearing on behalf of the claimant Mr Kalobo:

"He has the threat of removal hanging over him for five years"

. Certain other potential differences may also be noted, including, amongst other things, the need for permission to marry in the United Kingdom, certain restrictions on the right to be joined in the United Kingdom by a spouse or partner and certain potential limitations on the right to seek British citizenship.

[24]As against that, as pointed out by Mr Otty QC appearing on behalf of the Secretary of State, it is fundamental to the new policy that a refugee will not be liable to be returned unless the situation in his home country has sufficiently changed on a "significant and non-temporary basis" so as to render it safe to do so. It is said that such a decision to return would call for the appropriate objective country information; that each case would be reviewed on its own merits; and further that there would be the potentiality for appeals and for the raising of any Article 8 points in individual cases that may have arisen. Overall, it is submitted, and I agree, that the grant of five-year leave to enter or remain, subject to further review, is significant and valuable protection.

[25]Some points at least, I think, are reasonably clear. 25.1. First, and really reflecting what I have already said, there can be and is no challenge to the Secretary of State's entitlement in principle to change the policy as he has done in substituting a normal five-year leave to enter/remain for the previous indefinite leave to enter/remain. That is common ground. This really reflects the point made by Mr Otty that refugee status carries with it no automatic entitlement to indefinite leave to remain. It is protection from persecution to which the relevant policies must be primarily directed. 25.2. Second, it cannot be said that this change to policy operates in any relevant way with retrospective effect. It certainly does not purport to take away the grant of indefinite leave from those who were actually granted such leave before 30 August 2005. 25.3. Third, the Secretary of State made no promise or representation to any of the individual claimants to the effect that he would not change the policy, or not apply the new policy as changed to them. The claimants no doubt had a legitimate expectation that, upon a final disposal of the appeal process, they would thereafter be granted relief respecting their refugee status, in accordance with the 1951 Convention, and would be granted that relief without undue delay. But what precise form that grant took -- be it indefinite leave to remain or some other leave to remain -- was not a matter in respect of which they could have had a legitimate expectation, in the public law understanding of those words. Implementation

[26]Underpinning all the points raised is a point that it is important to bear in mind; that is, the distinction between recognition of refugee status and the grant of leave to enter or remain to reflect such refugee status as so recognised. The position can most conveniently be traced back to paragraph 28 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status. That, amongst other things, provides as follows:

"A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition but is recognised because he is a refugee."

This also reflects, for example, Article 2(d) of Council Directive 2004/83/EC.

[27]Ordinarily in the United Kingdom a person can be recognised as a refugee either by a decision of a relevant case worker on behalf of the Secretary of State at the initial stages of the determination process or at a later stage where an appeal is allowed by the AIT.

[28]The process of actually granting leave to enter or remain consequent upon recognition of refugee status is essentially, as it seems to me on the materials before me, an administrative task. It has in fact been described in one case as being in the vast majority of instances "a purely clerical exercise". Nevertheless, it is that formal grant which confers the entitlement to remain: and it is, as it were, the document of title of the refugee in question. The significance of recognition in this context is that it is the recognition which obliges the Secretary of State, pursuant to his obligations under the 1951 Convention, to implement the decision to recognise and to confer the actual benefit of the status of refugee on the applicant, in particular by granting leave to enter or remain. It is that grant which provides the requisite protection preventing any return to a potentially persecuting country.

[29]There is however, so far as I am aware, no express statutory obligation in the relevant statutes or Immigration Rules which sets out any time limit on the Secretary of State for making a formal grant of leave to enter or remain consequent upon a decision having the effect of recognising an applicant as a refugee. Such a decision to grant leave to enter or remain is granted variously by immigration officers or others, as provided in, for example, sections 3 and 4 of the Immigration Act 1971. However, and not surprisingly, various legal authorities clearly state that, notwithstanding the lack of any express words in the statutory provisions, such implementation must take place within a reasonable time and without undue delay.

[30]What then is a "reasonable time" for this purpose? I confess that I would have appreciated rather more in the way of evidence from the Home Office on this point than I actually received in these cases. For example, it would have been very helpful to know, at least as a matter of generality, precisely what administrative or clerical tasks or obligations are called for, at least in the usual kinds of case, before the relevant status document, carrying with it the proof of entitlement to leave to enter or remain, is issued. But I had no very clear evidence on this. However it does seem, from the evidence that was put in, that there is involved the moving around of files from one centre to another. Further, checks have to be made and, for example, photographs and sometimes certificates also are needed for the document. There also may be enquiries needed into past grants, as well as enquiries about any certificates that are called for. In certain cases (and Mr Fodil's may be taken as one) extra security checks also need to be undertaken. In addition, other investigations may also be called for.

[31]As to the time actually needed for all this, this also might have benefited, so far as I am concerned, from rather more extensive and explicit evidence than in fact was placed before me. In a witness statement dated 20 November 2006 Mr Jones, policy officer of the Asylum and Appeals Policy Directorate in the IND, sets out what he would perhaps say is the normal practice. He accepts that in terms of time allowed for any appeal from a decision of the AIT time starts to run, so far as the Home Office is concerned, as soon as such decision is actually received by the IND (which is not the same as when such decision is eventually promulgated). He sets out the possible timetables after certain initial actions which are requisite and after the need to transfer files. His timetabling after those initial steps, as set out in his witness statement, also includes this passage with regard to times:

"Action by individual case worker seeking any outstanding information/documentation (eg photographs, birth certificates, past grants): c. 33 days to a maximum of 84 days."

He refers to lapses of time occasioned by reminders but says that "33 days is the average period" according to the statistics collected for this purpose.

[32]The claimants query the evidence of Mr Jones, complaining that the timetabling for the various stages set out in his witness statement is not clear and is not explained in detail. It is said, most particularly on behalf of Mr Kalobo, that analysis of the matters put forward by Mr Jones should not, in the ordinary case, seem to require a delay of more than 24 days in implementation. In this regard, as it seems to me, reference may be made to the decision of Jackson J in the case of Arbab v Secretary of State for the Home Department

[2002] EWHC 1249

Admin. In that case, Jackson J indicated that, under the asylum procedures existing at that particular time (which was 2001), 28 days was the expected normal period for implementation of the grant of leave to enter or remain consequent upon a prior decision to recognise. Why in 2005 and 2006 it should in the ordinary case call for anything longer than that -- assuming, that is, prompt co-operation on the part of the applicant in question -- is not really explained to me, apart from the customary indication of "lack of resources" -- the usual bleat of public bodies under criticism for delay in dealing with matters. But the evidence of Mr Jones is suggestive of the fact that implementation can in 2005 and 2006 frequently take more than 28 days, and sometimes significantly so.

[33]Notwithstanding the points made by Mr Jones, I find it difficult to see why in at least the ordinary case (and also assuming, I stress, co-operation on the part of the applicant) it should not be possible to achieve implementation of a prior decision to recognise within 28 days. That, as I have said, was the position stated, under the then procedures, to be considered reasonable in Arbab. Taking notice, as I do, of the fact that there has been an ever-increasing volume of asylum cases, with concurrent pressure on resources, but also taking notice of the fact, as I do, that the Home Office has stated that it has been endeavouring to meet the challenge of such increased case load, I think that a 28-day time limit in the ordinary case and assuming co-operation should be achievable. The evidence of Mr Jones, however, as I have said, indicates that, in practice, that is not by any means always what is happening.

[34]Nevertheless, all that having been said, it is by no means in every case that an unsatisfactory administrative delay will ground a valid claim for judicial review. In Arbab itself, where the Secretary of State had himself accepted that, at the time in question, he expected 28 days to be a sufficient period in which to dispatch the letter of status, the delay was in fact two months or so: which was described as "highly unsatisfactory" by Jackson J. No relief however was granted in that case. That case, nevertheless, differs from the present cases: in that what was at issue in Arbab was the entitlement to benefits which could only accrue from the date of the actual grant of the letter of status. Moreover, the applicant in Arbab had suffered no real prejudice because, in the event, such benefits had, albeit not in accordance with statute, in fact been paid to him. Jackson J's conclusion was that the "two months delay ... though unfortunate, did not on the evidence cause prejudice and was not unlawful".

[35]In R v the Secretary of State for the Home Department ex parte Mersin [2000] INLR 511, the applicant's appeal had been allowed by an adjudicator on 29 March 1999, his status thereby being recognised. There was no further appeal. In spite of requests, and there being no intervening change of circumstances, he was not issued with his status letter until 13 November 1999, proceedings having been initiated in the interim after having previously been threatened. Elias J held that, there having been no appeal, it was the duty of the Secretary of State to give effect to the adjudicator's decision. It was held that a delay of seven and a half months was unreasonable and constituted unlawful delay in giving effect to the refugee status previously recognised. Elias J said this at page 522 of his judgment:

"In my judgment if someone has established the right to some benefit of significance, as the right to refugee status and indefinite leave surely is, and all that is required is the formal grant of that benefit (in the absence at least of a change in circumstance since the right was acquired or other exceptional circumstance), then it is incumbent upon the authority concerned to confer the benefit without unreasonable delay. The resources available to the authority will be part of the circumstances which can be taken into account when determining whether the delay is reasonable or not. However, if the authority fails to have regard to the fact that a right is in issue, it will have failed to take into account a relevant factor and will be acting unlawfully. In this case the respondent ought to have treated the applicant and those in a similar position differently to other categories of cases ... I should add that in my view even taking both stages in the procedure separately, each was unlawful considered separately. For the ICD to take six months to send the file on was wholly unacceptable ... "

[36]In R(Mambakasa) v the Secretary of State for the Home Department

[2003] EWHC 319 (Admin)

, the applicant complained of the delay in formally granting him refugee status (this also being in the context of benefits). His appeal had been allowed on 26 February 2001, there being no further appeal by the Secretary of State. In due course, letters, including a letter before claim, were sent on his behalf complaining of the delay. A formal letter granting leave to remain was eventually received on 31 August 2001. The intervening delay prejudiced the applicant's entitlement to benefits in the interim. The question was whether the Secretary of State had acted unlawfully in delaying for this period of around six months.

[37]Richards J, after reviewing the evidence and the submissions, and having referred to various authorities, including the decisions in Arbab and Mersin, said this:

"64. In considering those rival submissions I have borne firmly in mind that the issue at this stage is not whether the delay constituted a breach of Article 8, but simply whether there was a breach of the duty on the Secretary of State to act without unreasonable delay in granting the claimant the refugee status to which he had a right or legitimate expectation as a result of his successful appeal to the IAT. 65. In my judgment the delay of about 6 months was unreasonable and did amount to a breach of duty on the part of the Secretary of State. It is not necessary to decide at precisely what point the delay became unlawful, but I take the view that if the matter had come before the court on an application for judicial review during at least the last 2 months or so of the period of delay the court would have been likely to grant declaratory relief (subject to the discretionary withholding of relief once the letter of 2 August indicated that a decision had been taken and that a status letter was about to be issued)."

Mr Otty observed that those last remarks would seem to indicate that a delay of around four months would not necessarily have attracted a finding of unlawfulness or the grant of declaratory relief.

[38]It seems to me that those cases confirm what is really elementary principle: that the length of the delay in question cannot normally be taken on its own without consideration also of the consequences resulting from such delay in assessing whether or not the failure to issue the letter of grant of leave to remain is to be categorised as unlawful and to require the grant of relief. Putting it another way, the entire circumstances of each case have to be borne in mind.

[39]This is borne out by the decision of the Court of Appeal in the case of R(Rashid) v Secretary of State for the Home Department

[2005] EWCA Civ 744

. In that case, the Home Office failed over a period of time to apply a policy which would have entitled the applicant to refugee status. The failure and neglect in doing so over so long a period was variously described as "startling", "prolonged" and "unexplained". It was also noted that two other applicants in precisely the same circumstances as Mr Rashid, and on the outcome of whose appeals his own case had been waiting, had been granted such status. But he in the event was not, there having been a change in circumstance in the removal of Saddam Hussein's regime in Iraq before the Home Office eventually issued its final decision. The Home Office at that stage invoked the principle of Ravichandran [1996] Imm AR 97, deciding that, as matters at that time then stood, there was no requirement to grant Mr Rashid refugee status or any leave to remain. It was held by the Court of Appeal that the circumstances of that case evidenced a degree of conspicuous unfairness amounting to it being an abuse of policy to refuse to grant Mr Rashid indefinite leave to remain. The circumstances of that case of course are very different from the present case, and indeed, it has to be said, far more extreme. They involved, amongst other things, a persistent failure to apply policy; a wholly unwarranted and unacceptable delay; and a resulting failure to give any recognition or any leave to remain of any kind at all. It is also to be noted that, in the course of giving his judgment, Pill LJ was careful at paragraph 36 to say this:

"I am very far from saying that administrative errors may often lead to a finding of conspicuous unfairness amounting to an abuse."

Submissions

[40]I turn to the submissions. It was argued by Ms Finch, on behalf of the claimant Mr Rechachi (her arguments being adopted by Mr Vokes for the claimant Mr Fodil and by Ms Chandran for the claimant Miss Yusuf) that the way in which the policy was introduced was flawed and was unsustainable. She submitted that if a person was recognised as a refugee before 30 August 2005, at all events by reason of a successful appeal, then such person should, without more, lawfully be entitled to the grant of indefinite leave to remain. The guidance note of 25 August 2005 could not stand, it was submitted, in that it failed to acknowledge that as a requirement. Putting it another way, the effect of the submissions of Ms Finch is that, in reality, it was the duty of the Secretary of State to provide in effect for transitional arrangements, retaining the former policy with regard to indefinite leave to remain for those whose appeals had been allowed (or, it may also be, had received favourable decision letters from the Home Office) at any time before 31 August 2005: even, on that argument, just one day before. Those submissions, as I have said, are supported by Mr Vokes and Ms Chandran.

[41]Mr Cox, on behalf of Mr Kalobo, perhaps recognising the force of Mr Otty's arguments to the contrary on this point, indicated that he did not feel able to support those particular submissions. But he did loyally say with regard to his colleagues' submissions that he was not seeking to gainsay them.

[42]In my judgment, those submissions are not correct and Mr Otty's arguments are to be preferred. The Government might have decided to retain the grant of indefinite leave to remain for those asylum seekers whose appeals were allowed, or those in respect of whom favourable decisions had been made, prior to 30 August 2005; that is to say, for those whose status as refugees had been recognised by that date. The Government might have chosen expressly to include transitional arrangement to that effect and to have announced a policy accordingly. But the Government has chosen not to do so. That, as I see it, was a policy matter for the Government. It plainly has applied its mind (through its officials) to the point: and its worked-out solution to that position is to be found in the exceptions set out in the guidance note dated 25 August 2005.

[43]There is also nothing in the exceptions there set out in such guidance which, in my view, (and contrary to some of the submissions made to me) runs counter to the broad policy statements contained in the "Controlling our Borders" document or in the ministerial statement of Mr McNulty. Moreover, that point had also been expressly referred to in an IND note to stakeholders of 25 July 2005. In the course of that, and in a series of posed written questions and answers, this was said:

"Q: When do you propose to commence the new policies? A: They will be commenced on Tuesday 30 August. The new policies will apply to all decisions to grant leave at initial decision, or following allowed appeals, which are served from that date onwards."

[44]That makes it clear among other things that the new policies apply to grants of leave, following allowed appeals, which are served after 30 August 2005. That that was chosen in the light of perceived administrative convenience and to avoid inconsistencies is explained in the second witness statement of Mr Jones dated 6 December 2006.

[45]I accept, speaking generally, that there may be cases, where a general policy has been changed by a different policy, whereby an applicant will be able to assert either an abuse of policy with regards to him or in appropriate circumstances a denial of a legitimate expectation: see Craig on Administrative Law (5th Ed), pages 641 and 657-658; Rashid (cited above); and see also the observations of Laws LJ in the case of R(Nadarajah) v Secretary of State for the Home Department

[2005] EWCA Civ 1363

, in particular at paragraphs 66 to 70. But the present, as I see it, are not such cases.

[46]It was, I might add, also submitted that the present arrangements give rise to an "administrative lottery". But that can, in one sense, be said in almost any context where the Ravichandran principle may have to be applied. One can readily think of examples. In any event, such a viewpoint cannot displace the entitlement of the Government to change its policy in the way that it did.

[47]I accordingly approach each of these four claims on the footing that, first, the Secretary of State was entitled to change his policy as he did; secondly he was entitled to change it in terms of detail in the way set out in the guidance note of 25 August 2005. In saying that, of course, I also accept the submissions on behalf of the Secretary of State that such revised policy still reflects the obligations imposed by the 1951 Convention, and further, that acknowledgment of recognition as refugee entitles the individual concerned to the benefit of concomitant status and leave to remain sufficient to reflect the 1951 Convention (provided always of course no undue delay is involved, and I should also add, subject to the intervention of any exceptional circumstances in the meantime: these for example could include the practice of gross deception or other material change of circumstance). Disposition

[48]That then leads on to the question (which in truth, in my view, is the key question here) as to whether there was unreasonable delay in each or any of these cases, sufficient to warrant the grant of relief, in giving implementation by the grant of leave to enter or remain to the prior recognition of refugee status.

[49]In this regard the phrase "significant delay in actioning an appeal" as set out in the guidance note is not perhaps wholly clearly expressed. It could be meaning delay in implementing the outcome of the successful appeal to an immigration judge. It could, on the other hand, possibly include delay that has occurred in the course of pursuing the substantive appeal process itself. I think that the former is the better interpretation. It makes practical sense and also fits the words used better: for example, it is not ordinarily the Secretary of State who delays "actioning an appeal" as such to an immigration judge. Furthermore, such approach also accords with the explanation given by the Home Office Policy Directorate to the Immigration Law Practitioners' Association by e-mail of 28 September 2005: although of course that is after the guidance note was issued.

[50]In my judgment, therefore, that is the way these four cases have to be approached. That approach, I repeat, involves the recognition of refugee status as carrying with it no absolute entitlement to the permanent status of indefinite leave to remain. However, it does involve the proposition that the entitlement to the grant of the benefit flowing from recognition should, in the absence of exceptional circumstances, be made within a reasonable time.

[51]I should record that some of the written arguments before me did invoke the doctrine of legitimate expectation. But in the event, in the course of the oral arguments, none of those points were really pursued: in my view, rightly so, not least because the change in policy had been foreshadowed by February 2005, and also because -- as I have indicated above -- the true legitimate expectation must be taken to be that the policy for the time being applicable at the time of grant should be applied in accordance with its particular terms so as to comply with the 1951 Convention.

(i) Rechachi

[52]I turn then to the case of Mr Rechachi. Ms Finch referred to three periods of delay relating to him. First, the period of delay between the eventual submission of his medical evidence in September 2003 and the actual decision refusing his asylum claim on 4 April 2005, some 18 months; second, the delay between 4 April 2005 and 26 July 2005, the time taken to receive the appeal decision; and third the period between 26 July 2005, the promulgation of the decision, and 20 December 2005, the issue of the status permit.

[53]There were two refinements to this, in that as to the third period, Ms Finch pointed out, and as is accepted on behalf of the Secretary of State, the actual decision of the immigration judge would have been notified to the IND shortly after it had been dated, that is to say, on 24 June 2005: so that the Home Office was able to consider the position at that time. Further, it was in turn accepted by Ms Finch, as indeed by counsel for the other claimants, that any delay occurring after 30 August 2005 could have no causative relevance.

[54]As to the first period, Ms Finch ultimately did not suggest that such delay was so great that of itself it was unreasonable in such a way as to bring about the grant of the relief she seeks on behalf of the claimant. But she submits that that first period should at least be taken into account in assessing the reasonableness or otherwise of the failure thereafter (after the appeal had succeeded) formally to grant leave to remain before 30 August 2005. I accept that, in the sense that a lengthy delay preceding the allowing of the relevant appeal which has the effect of recognition of refugee status is, in my view, capable of having a bearing on the reasonableness thereafter of the length of time taken to implement that decision. In appropriate cases, a degree of prioritisation may sometimes in such circumstances then be called for. But in the present case the force of that point is, in my view, significantly reduced by reason in particular of two matters. First, there is no evidence of Mr Rechachi chasing for a decision in the period leading up to the decision letter. Second, it is plain from a reading of the AIT's determination that the appeal was to a significant extent assisted by intervening events and developments in Algeria occurring in 2004 and which, under the Ravichandran approach, fell to be taken into account. Ms Finch said that those matters in fact had no bearing on the outcome; but, having considered the determination, I do not agree.

[55]As to the second period, the decision was dated 24 June 2005 and was promulgated on 26 July 2005, as I have said. That of course had the effect of reversing the Secretary of State's previous decision. But the Secretary of State contributed to no unreasonable delay in the conduct and pursuit of that appeal. The delay was just because of the fact of the decision by the applicant to appeal. The AIT reached a different conclusion from the Secretary of State on the evidence then being placed before the AIT on the matter. But that cannot, as I see it, of itself be held against the Secretary of State for present purposes.

[56]As to the third period, the gap between the date of promulgation and 30 August 2005 was some 35 days. It may be that such a lapse of time cannot of itself be categorised as "significant", even if it is not altogether satisfactory. But Ms Finch also added to it the point that the Secretary of State would have had notification of the decision at the end of June 2005, as is accepted: and thus had a further four weeks or so to consider the matter, and then, having decided that he did not to seek further to appeal, was in a position to have started upon the implementation process: which could then, it is submitted, have led to the grant being effected before 30 August 2005.

[57]The witness statement of Ms Mercer dated 21 November 2006, filed on behalf of the Secretary of State, would seem to suggest an unexplained period of a number of weeks elapsing before the relevant files were even transferred across to a particular case worker in Croydon; and as I have said, in the event there ultimately in December 2005 had to be a special intervention to get the letter of grant issued even as late as it was.

[58]Taken together, I think there is force in these points made by Ms Finch: even though I do accept that the delay here in actual implementation is of a significantly lesser order than that prevailing in the cases of Mersin or Mambakasa. It has however to be said that, for the purposes of the guidance note, the evidence would suggest that the delay here, although unsatisfactory, was not "out of step" with other appeals of a similar nature. That of itself would suggest that this particular case was not within the exceptions set out in the guidance. But it seems to me that, if that be so, then that is indicative of a systemic dilatoriness in the handling of these cases. I do not think that the relevant delay in this case here can be said to be attributable to a purely one-off administrative oversight as was suggested by Mr Otty. And it is not, as I see it, good enough to say that the case does not come within any exception set out in the guidance just because most or many of other such cases have taken similarly so long.

[59]Nevertheless, I do not think that the periods of delay here, whether one takes them individually or cumulatively, warrant my exercising discretion in granting relief.

[60]The relevant delay here, as I have said, in implementation was of a much lesser order than as that occurring in Mersin or Mambakasa. Certainly the delay was not in itself so gross (irrespective of the consequences) as to require the grant of relief. Further, and this to my way of thinking is a most important point, the claimant conspicuously was not (unlike, for example, Mr Rashid) deprived of any effective refugee status. On the contrary, he has been granted five years' leave to remain, with the prospect of extension unless circumstances in the interim change. In my view, in all the circumstances there is no conspicuous unfairness involved in the Secretary of State granting five years' leave to remain as he did; and there was no infringement of any legitimate expectation, to the extent that the point was put that way.

[61]A separate complaint -- which in reality was little more than a variation of the main argument -- was also made that the Secretary of State had failed to give individual consideration to the claimant in failing to grant him indefinite leave to remain; and it is said that the policy was applied in a wholly generalised and rigid way. But in my view that is not borne out by the materials before me; and I simply add for the record that that has further been confirmed subsequently by a letter from the Home Office of 11 July 2006.

[62]I therefore dismiss the claim of Mr Rechachi. (ii) Fodil

[63]I can take the case of Mr Fodil rather more shortly. The refusal of his third asylum claim, which had been made on 30 September 2004, was notified on 12 May 2005; that is to say, after the change of policy had been announced. The appeal was allowed on 7 July 2005, the actual decision being dated 28 June 2005.

[64]In the case of Mr Fodil, the evidence shows that in his case, and for reasons I need not expressly spell out in this judgment, particular security checks then had to be undertaken. This was explained by the IND by letter to Mr Fodil's solicitors dated 30 August 2005. It is further explained in the witness statement of Miss Hedges of the IND, dated 21 November 2006, that the file was recovered for security checks on 20 July. Those checks include investigation with other Government departments and international organisations. That necessarily took significant time: in his case, such checks were not completed until 3 November 2005. It was important, in my view, in the public interest for such security checks to be made and concluded.

[65]In my judgment, that evidence of itself shows that the delay occurring between the AIT decision promulgated on 7 July 2005 (or as dated on 28 June 2005) and the 30 August 2005 was, in context, neither significant nor unreasonable. Further, Mr Fodil in any event has been granted five years' leave to enter or remain which protects his refugee status; and he too has the prospect of further extension in the event of no material change in circumstances. No conspicuous unfairness arises in his case, given those circumstances.

[66]I add that, as in the case of Mr Rechachi, complaint was made as to the delay in having the original decision letter set aside on appeal by the AIT. But, as I have said in Mr Rechachi's case, such delay is not to be held against the Secretary of State. Moreover, just as in Mr Rechachi's case, the appeal of Mr Fodil was allowed to a significant extent because of material not put before the Secretary of State at the time of the original decision letter. Accordingly, it by no means follows, as Mr Vokes' argument seems to assume, that the original decision letter was unjustified at the time it was given. It is also to be noted, of course, that the subsequently allowed appeal, following the initial refusal, post-dated the announcement of the changed policy.

[67]So far as the submission made on behalf of Mr Fodil that here too no sufficient consideration was given to his individual circumstances, in deciding whether to disapply the general policy, that also in my view is not justified and I do not think there is any basis for that. (iii) Kalobo

[68]I turn next to the case of Mr Kalobo. The position with regard to Mr Kalobo is rather different again. In his case, the timetable shows that, whilst his appeal to the adjudicator was allowed on 15 March 2005, reconsideration was ordered on 3 May 2005, and it was only on 18 October 2005 -- some six weeks after 30 August 2005 -- that the AIT determined the matter, ruling that the original Tribunal decision had made no material error of law and its decision thus stood.

[69]As I have said, Mr Cox does not seek to challenge in principle the change of policy or the way in which the Secretary of State has changed it. It is accepted by Mr Cox that, generally speaking, it is not unfair to apply the new policy to those who have pending appeals because of a challenge by the Secretary of State to a decision of an adjudicator, and that, as put in the grounds:

"The Secretary of State is entitled, for reasons of administrative convenience, to draw a clear line and to apply his new policy to each case that comes across his desk from the date of change."

As will be apparent from what I have said earlier, I, in general terms, agree with that concession. But what is said in the case of Mr Kalobo is that the appeal was deliberately pursued by the Secretary of State on two grounds, which were ultimately acknowledged by the Secretary of State on 18 October 2005 as, so it is said, unsustainable. One ground had involved a misreading of the adjudicator's findings; the other had involved a point which, even if right (and the AIT doubted that), could not have been a material error of law and could not have impacted on the overall favourable credibility assessment made by the adjudicator. This, it is said, makes all the difference; in that, as it is submitted, there simply was no proper basis, as can now be seen, for the appeal in the first place. The Secretary of State's concession, moreover, as to that only came at the last minute and of course well after 30 August 2005. It is said that this scenario gives rise to conspicuous unfairness and to an abuse of power and policy. The asserted abuse did not lie in the decision to appeal and the delay in recognising that the appeal grounds had no merit: rather the abuse lay in the decision that Mr Kalobo nevertheless was to be denied the indefinite leave to remain that he would have received had there not been such an unmeritorious appeal and delayed appreciation of the lack of merits. Mr Cox accepts that it is not enough for there to be a hard result or even a result that some might style "unfair"; there must, he accepts, be "conspicuous" unfairness. But he submits that this is such a case.

[70]I reject that submission for quite a few reasons. 70.1. First, reconsideration had in fact first been ordered. That connotes that a senior immigration judge had thought the points sufficiently arguable. 70.2. Second, the Secretary of State was entitled at that time to pursue the matter. As Mr Otty submitted, and I agree, he should not in effect be penalised for subsequently conceding these points. That remains so notwithstanding the intervening letters on behalf of Mr Kalobo's lawyers, inviting the Secretary of State to reconsider the merits of the appeal. It was a matter of viewpoint as to whether the grounds were sustainable or not. 70.3. Third, the decisions in Mersin and in Mambakasa are both authority for the proposition that, in assessing whether any delay in implementation is unreasonable, time ordinarily runs from the date of the decision on the ultimate appeal. The Secretary of State here had not, in the language of Elias J at page 518 of the judgment in Mersin "ignored the ruling of the original adjudicator without appealing it". On the contrary, the Secretary of State had appealed it. And in paragraphs 39 and 40 of the decision of Richards J in Mambakasa, this is said:

"39. In my judgment there can be no question of unlawful delay prior to receipt of the IAT's determination on 27 February 2001. The Secretary of State was entitled to await receipt of that determination before granting the claimant refugee status. It is true that at the hearing on 8 January the Presenting Officer did not oppose the IAT's indication that the appeal would be allowed. It must have been clear that the IAT's intention was to allow the appeal outright and not to remit it to another adjudicator. The discussion between the claimant's solicitor and the Presenting Officer about the family's visa applications was on the basis that the claimant was going to gain refugee status. Nonetheless there was no duty on the Secretary of State to recognise the claimant as a refugee in advance of the IAT's determination. His own decision had been to refuse asylum, he had not withdrawn that decision and it remained effective unless and until the claimant's appeal was allowed by the IAT. I reject a contention advanced by Mr Nicol in reply that by reason of the events of 8 January there was an express or implied decision by the Secretary of State that the claimant was entitled to refugee status. Further, the IAT's determination was based on the tribunal's own assessment of the merits of the claim, not on any concession by the Secretary of State. 40. On the other hand, the fact that it was known on 8 January that the appeal was to be allowed and that, on the Presenting Officer's own recollection of events, he had suggested that details of the family be sent to him so as to speed things up once the IAT's determination was promulgated are relevant to the question of how long it was reasonable for the Secretary of State to take in issuing the claimant's status papers following receipt of the IAT's determination. I come back to that below."

Those comments, as it seems to me, though made in a case not identical to the present case, are at least analogous to the situation arising in the present case; and in my view the Secretary of State was entitled to wait upon the decision of the AIT. I can accept of course that the position might be entirely different if the Secretary of State's pursuit of the appeal had been fraudulent or activated by malice, or something akin to that. But that is rightly disclaimed by Mr Cox.

[71]In my view, those reasons are enough to dispose of this claim. But here too, if it be necessary at all, I would consider that the grant of five years' leave to remain, which protects Mr Kalobo's refugee status and which would be capable of further extension, also confirms here that there was no conspicuous unfairness. There is also in this case nothing in the suggestion that the Secretary of State had otherwise failed sufficiently to consider whether exceptional circumstances applied to Mr Kalobo so as to qualify him to receive a grant of indefinite leave to remain.

[72]Accordingly, and subject to the point raised as to the meaning and effect of the status document in fact issued to him, I would reject Mr Kalobo's claims based on these grounds. (iv) Yusuf

[73]I turn then to the case of Miss Yusuf. In the case of Miss Yusuf, while her asylum claim was made on 20 March 2004 and refused on 17 May 2004, her appeal was allowed by a decision promulgated on 16 December 2004. Reconsideration, as I have previously said, was ordered on 6 April 2005. But on 8 November 2005, the day fixed for the substantive hearing before the AIT, the Secretary of State's presenting officer indicated that the case was not to be pursued; and the determination of the AIT of that day ruled, with reasons, that the original determination of the appeal should stand.

[74]In my view, the arguments advanced in this case can have no more validity than those advanced on behalf of Mr Kalobo. I reject them. Ms Chandran criticises the Home Office for only making the decision to abandon the appeal at the last possible minute. But the evidence, including the contemporaneous note of the presenting officer, as well as Ms Chandran's own notes (she being counsel appearing on that occasion also), indicates that, to a very considerable extent, the presenting officer decided not to pursue the matter just because Ms Chandran had succeeded in persuading him outside the door of the court not to do so on humanitarian grounds. The grounds on which reconsideration as a matter of law had previously been ordered were several and none of them was by any means demonstrably bad. On the contrary, they were at least arguable, as had been decided by a senior Immigration Judge in ordering reconsideration, and one indeed included the potentially important point as to whether or not trafficked women from Nigeria constituted a social group. The ultimate position was in fact recorded by the AIT in its determination dated 8 November 2005 in the following way:

"At the outset of the proceedings, Mr Deller indicated that he would not pursue this appeal on humanitarian grounds in the light of the appellant's vulnerability and because the grounds were not well drafted. The respondent would therefore be recognised as a refugee. However he stressed that this decision was in no way a concession by the respondent on the issues which would be argued on another day and in another case."

[75]As the single judge pointed out in considering the permission application in this case on the papers, it would not be sensible to seek to second guess the AIT as to whether or not the grounds would have failed had the case been argued; and it would, in my view, be most unfortunate -- indeed, in a sense, might be described as "unfair" -- if a concession made by the Secretary of State on humanitarian grounds should then, as it were, thereafter be held against the Secretary of State in the way now advanced. It follows that here too there was no departure from the guidance note and no unreasonable delay; and there was no conspicuous unfairness involved in the decision to grant Miss Yusuf five years' leave to remain.

[76]Ms Chandran did also object that the Secretary of State had failed to give individual consideration to the exceptional circumstances said to apply to Miss Yusuf in deciding whether or not to grant indefinite leave to remain, and had rigidly and wrongly fettered his discretion. The arguments here went rather further than the arguments advanced in respect of the other claimants on this particular point (which in substance had been in those other cases simply a variation of their primary argument): because in the present case Ms Chandran very eloquently referred to the asserted psychological consequences to Miss Yusuf of even the possibility of being returned to Nigeria, which possibility of course at least exists in the light of the decision to grant five years' leave to remain. However, it transpired that much of this, including the reference to psychological evidence, has emerged since the decision to grant five years' leave to remain. At the time the original decision was made, it seems to me to have been a perfectly valid and reasonable decision to have been made as matters then stood. Accordingly, that point cannot be a basis for acceding to this claim for judicial review in these proceedings: although it perhaps may be a basis for those acting for Miss Yusuf hereafter to make further representations to the Secretary of State for him to consider whether, in his discretion, to grant indefinite leave to remain on the basis of the exceptional circumstances now being advanced, including any psychiatric or psychological evidence.

[77]I should just add that, in the course of her argument, Ms Chandran did say that the recognition of the refugee status of Miss Yusuf had occurred in December 2004 when the adjudicator allowed her appeal. She says that the ultimate upholding by the AIT of that decision simply reinforces that as declaring the position which should be deemed to have taken effect on that date, and so on no view, she submitted, had that recognition been implemented within a reasonable period of time before 30 August 2005. I have already explained why, as a general approach, I cannot accept that. But I would add that this particular approach also would seem unreal and unworkable in practice: for example, it would seem to require the Home Office constantly to be reviewing such appeals and constantly seeking to make "guesstimates" as to what might be the eventual outcome. That does not seem to me to be at all satisfactory or desirable.

[78]I can see that the Home Office may in an appropriate case be under a duty at least to consider representations as to the asserted weakness of an appeal which the Home Office may be pursuing -- indeed, such representations were made in the case of Mr Kalobo, as I have said. But, as I see it, in the ordinary way the Secretary of State has no general and freestanding duty constantly to reconsider, prior to the hearing of an appeal, the ultimate prospects of success once reconsideration has been ordered by the AIT.

[79]It follows that all these claims are dismissed on the grounds advanced. Status document of Kalobo

[80]However, a quite separate point arises in the case of Mr Kalobo. It is clear that the intention of the Secretary of State was to grant Mr Kalobo five years' leave to enter or remain. The details of the leave to be granted were, as explained in the witness statement of Mr Bligh (Appeals Implementation Unit Manager), entered on to a form called ICD.2100. If an appellant is granted asylum and the leave is five years' leave to enter or remain the appropriate expiry date will be entered. If the appellant is granted asylum and indefinite leave to remain is granted the case outcome will be recorded as "granted asylum and ILR": and the expiry date on the form is left blank. An immigration status document is then prepared and sent to a secure handling area for what is called a vignette to be produced and incorporated into the immigration status document is issued. For this purpose, the details are transferred by computer system from the form ICD.2100 to create the vignette. If the type or duration of leave recorded on the vignette differs from that shown on the ICD.2100, that can only be due to error. Staff in the secure handling area are not authorised to depart from the ICD.2100.

[81]The form ICD.2100 in the case of Mr Kalobo recorded the case outcome as "granted asylum and LTE/LTR". The outcome date was described as 20 December 2005. There was also recorded:

"Expiry Date: Valid Until: 20 December 2010"

. It appears, however, that at the time, and partly because of the recent policy change, a "manual workaround", as it is called, was incorporated as an interim arrangement until the computer system relating to the upgrading of the vignette system had itself been upgraded. It is clear that in this case an error occurred in the production of the status document incorporating the vignette. The personal details were correctly recorded. The standard form typed endorsement contained in the status document was also in the usual form. That stated, amongst other things, as follows:

"Refugee Status The person named on this document has been recognised by the Secretary of State as a refugee as defined by the 1951 Geneva Convention relating to the Status of Refugees and its Protocol. The period for which leave to enter or remain in the United Kingdom has been granted is indicated in the endorsement. While the period of leave indicated remains valid, the holder is able to work in the United Kingdom without any immigration restrictions limiting the type of work they can undertake."

And then in smaller type:

"This Immigration Status Document has been endorsed in place of a valid national passport or travel document and confers upon the person named leave to enter or remain in the United Kingdom for the period indicated. It does not certify the accuracy of the personal particulars which are supplied by the person who made the application ... Enquiries about the purpose, use, or validity of this document should be made to the Immigration and Nationality Directorate ..."

[82]It is in the incorporated vignette part of the status document where the errors occur. That is headed: "Residence permit". It gives Mr Kalobo's name. It then says against the words "VALID UNTIL": "20 DECEMBER/DEC 10". The place of issue is named as "Liverpool". Then, under the typed heading "TYPE OF PERMIT", is typed in the word "Settlement". Under the typed heading "REMARKS" follow the typed-in words: "Indefinite leave to enter the UK".

[83]That status document was accompanied by a separate standard form letter addressed to Mr Kalobo and dated 20 December 2005, sent to him via the Refugee Legal Centre. Amongst other things, that letter said this:

"You have been recognised as a refugee as defined by the 1951 Geneva Convention ... and have been granted asylum in accordance with the Immigration Rules."

[84]Then this is said in block capitals:

"THIS LETTER IN ITSELF CONFERS NO LEAVE TO ENTER OR REMAIN IN THE UNITED KINGDOM AND DOES NOT CONSTITUTE PROOF OF YOUR STATUS."

[85]It then refers to the enclosed immigration status document, saying this:

"This has been endorsed with your leave to enter the United Kingdom. The date this leave to enter or remain expires is shown on the endorsement. It is this endorsement that constitutes proof of your immigration status in the United Kingdom."

[86]Then on the second page there is a reference, under a capital heading, about applying for an extension. Then further on, under the heading "ACTIVE REVIEW", is set out a number of points whereby active review may be generated. One of those points is stated to be:

"where there is a significant and non-temporary change in the conditions of a country in which you have a right to reside."

[87]On 4 January 2006 the RLC wrote to the IND querying the conflict on the face of the status document and requesting amended status papers with unlimited leave to remain issued on the whole document, as it was put. Thereafter, as I have said, the IND declined to accede to such a request, saying that Mr Kalobo was only entitled to five years' leave to remain; and a further letter to that effect enclosing another status document giving five years' leave to remain was sent on 25 January 2006.

[88]Under the provisions of section 4 of the Immigration Act 1971, the grant of leave to enter or remain must be by notice in writing, subject to the refinements set out in the Immigration (Leave to Enter and Remain) Order 2000. Further, Council Regulation EC 1030/2002 of 13 June 2002 lays down a uniform format for residence permits for third country nationals: see in particular Article 1 which, amongst other things, also provides that "the uniform format may be used as a sticker or a stand alone document". The annex to the Directive also provides for a required description. Amongst other things, the entries set out as required in the annex include "'valid until' will indicate the relevant expiry date or, where appropriate, a word to indicate unlimited validity".

[89]The Secretary of State before me has not pursued alternative arguments based on assertions of mistake of fact or the doctrine of ultra vires. The sole point argued before me was the issue of the correct interpretation of the status document, and in particular the vignette as sent on 20 December 2005. This document is indeed at first sight seemingly self-contradictory. On the one hand it says "valid until" a date five years hence; on the other it expressly includes the words "settlement" and "indefinite leave to enter the UK".

[90]Mr Otty sought to invoke the terms of the accompanying letter of 20 December 2005. He submitted that these things should all be read as a whole. That letter, he says, includes the comment:

"The date this leave to enter or remain expires is shown on the endorsement"

. Further, such letter includes a heading, "Applying for an extension", with details, and further the points made under the heading, "Active review" also more obviously fit limited leave to remain: although he accepted that at least some of those points could also fit indefinite leave to remain.

[91]With respect, however, this will not do. First, that accompanying letter in bold type made it clear that in itself it conferred no leave to enter or remain and did not constitute proof of status. On the contrary, it had referred to the accompanying status document. Second, the enclosed status document by its express language indicates that it is that document and no other which is the relevant document. That also accords with EC Directive 1030/2002. Third, this accompanying letter is in standard form, and could be taken by a recipient to apply to all issues of leave to enter documents. Mr Otty told me that another form of letter was in fact used in cases of grants of indefinite leave to remain: but all I can say is that that was not in evidence before me. This accompanying letter, in short, is too vague in my view to counter what is set out in the formal status document itself. Fourth, I am in any event uneasy about the prospect of status documents -- important documents -- conferring leave to enter or remain and requiring production for use in a number of contexts being capable of being controverted by side letters. Status documents, as I have said, are in a sense documents of title. It would give rise to great uncertainty if, after the event of their issue -- perhaps even some considerable time after -- they could be altered or amplified in their ostensible purport by the production of a side letter whose possible effect may not have been appreciated or understood.

[92]In the present case therefore, in my view, my task is to interpret this particular status document itself as issued on 20 December 2005. If its wording has a particular meaning and effect, then that, absent deception, is the meaning and effect which must be given to it, even though some mistake may have occurred: see R v Secretary of State for the Home Department ex parte Ram

[1979] 1 WLR 418

; R v IAT ex parte Coomasaru

[1983] 1 WLR 14

. I add that no one suggests that Mr Kalobo practised any deception in this regard.

[93]Turning then to construe this status document, and in particular the vignette, by reference to which the period of leave to enter or remain in the United Kingdom is stated to be indicated, I think, read overall, that it connotes the grant of indefinite leave to remain. Not only do these words -- and I repeat that the annex to the 2002 Directive permits the use of words -- appear expressly in the remarks "indefinite leave to enter the United Kingdom", that is also reinforced by the type of permit being described as "settlement". Both those entries are completely inconsistent with limited leave to remain. It is of course true that the document is also marked as "valid until 20 December 2010": but I do not think that that can displace the express and repeated words elsewhere of the vignette.

[94]Moreover, as Mr Cox submitted, the validity of the permit for a limited period of five years is not necessarily inconsistent with indefinite leave to remain. It may simply connote to a holder, rather as to a holder of a passport, that he needs to renew the document after five years and, for example, provide fresh photographs and so on. While I have to say that I do not think that that would be a very likely thought to an immigration lawyer practising in this field on receipt of such a document, it is at least a possible way of giving that particular entry on the vignette some effect; whereas the Secretary of State's interpretation entirely deprives the words "settlement" and "indefinite leave to enter" of all effect.

[95]I did raise with counsel the question of whether I should apply the "reasonable recipient" test: see Mannai Investments Limited v Eagle Star Life Assurance Company Limited

[1997] AC 479

. They both agreed that I should: although I think that they also both ultimately agreed that it did not in this case take the matter much further. However, in the course of the argument at this stage, I perhaps rather incautiously ventured the observation that the reasonable recipient might be in something of a fog on receipt of this documentation. Mr Otty then coolly asserted that that suited his argument: because leave to enter or remain requires notice, and if the purported notice was wholly equivocal or wholly ambiguous, then it was no notice at all. It was, as it were, a nothing. I must say, I cannot accept that. It would connote, if right, that Mr Kalobo had been granted no leave to remain of any kind at all at the time to give effect to the prior recognition of his refugee status. Moreover, that potentially could have had very serious consequences for him on a number of fronts had it not, as it happened, been noted at the time. I do not think that the Secretary of State can take advantage of his own mistake by arguing for such a consequence. In any event, I do think that a process of interpretation can properly yield a conclusion in this case: which, in my view, is that indefinite leave to remain was here granted.

[96]If for this purpose it is necessary also to adopt a contra proferentem approach so as to give this document some meaning and effect, then that is an approach I am prepared to adopt. In my view, therefore, Mr Kalobo was given notice and that notice as a matter of construction was of indefinite leave to remain.

[97]There are three other points I should also mention in this context: 97.1. Mr Kalobo and his advisers in no way contributed to the mistake occurring on the part of the Home Office. 97.2. Mr Kalobo and his advisers could not have assumed that he was bound only to be granted five years' leave to remain. On the contrary, the RLC on Mr Kalobo's behalf had, shortly before the issue of the status document, been writing letters urging the Secretary of State to grant Mr Kalobo indefinite leave to remain, given in particular the circumstances of the abandoned appeal; and nowhere had the Secretary of State, prior to the issue of the status document, indicated that he would not be prepared to grant indefinite leave to remain. 97.3. My attention was not drawn to any statutory power entitling the Secretary of State to revoke or alter a status document on the ground of unilateral mistake.

[98]The claimant, Mr Kalobo, therefore succeeds on this ground. If nothing else, such an outcome will hopefully help ensure that careful checks for errors and inaccuracies in status documents are made before they are actually issued to refugees. If not, the Home Office has to take the consequences.

[99]MR OTTY: My Lord, could I just mention three very minor corrections for the benefit of the transcript which I noticed during the course of your Lordship's judgment?

MR JUSTICE DAVIS: Yes.

[101]MR OTTY: First, near the beginning of the judgment, your Lordship referred to the new policy coming into effect from 1995. Obviously, it was 2005.

MR JUSTICE DAVIS: Yes.

[103]MR OTTY: Secondly, when your Lordship was dealing with the reasons for dismissal or Mr Fodil's claim, your Lordship referred to the refusal of the asylum claim having taken place on 30 September 2004. In fact, that was the date of the asylum claim and the refusal was on 12 May 2005. Similarly, in relation to that your Lordship referred to the appeal having been determined on 12 May 2005, and that should be 7 July 2005.

MR JUSTICE DAVIS: Of course that is right.

[105]MR OTTY: My Lord, the last point was in relation to the reference given for the residence document in Mr Kalobo's case. Your Lordship gave a reference of E49 for the first residence permit. It is entirely understandable why there should be an error here because this was the illegible document in your Lordship's bundle. In fact, E49 is the second permit. E56 is the correct reference for the first permit.

MR JUSTICE DAVIS: Yes, thank you.

[107]MR OTTY: My Lord, that is it in terms of any corrections that I noted. It must follow, my Lord, that the claims of Mr Rechachi, Mr Fodil and Miss Yusuf are dismissed. I am not instructed to seek any costs.

MR JUSTICE DAVIS: That is very fair.

[109]MR OTTY: It must also follow that the claim of Mr Kalobo be allowed. I think the declaration will probably need to be in slightly different form to the form sought at E24.

MR JUSTICE DAVIS: Right, who is appearing on behalf of Mr Kalobo today?

[111]MR OTTY: Mr Walsh is appearing.

[112]MR JUSTICE DAVIS: Mr Walsh, thank you very much for turning up today. Is it something that perhaps --

[113]MR WALSH: I think we can agree that, my Lord.

MR JUSTICE DAVIS: Agree that, lodge it and I can initial it.

[115]MR WALSH: Yes, I think we could do that, my Lord, yes.

[116]MR OTTY: My Lord, I am instructed to preserve the position in relation to Mr Kalobo's case. No decision has been taken as to whether or not any appeal would in the event be pursued, but I am instructed to preserve the permission by asking formally for permission to appeal, and asking for a short extension of time in relation to the filing of an appellant's notice given the intervening Christmas break, my Lord. The extension of time I would seek would be one of 14 days, which would take one to 25 January. But, as I say, it is a preservative application.

[117]MR JUSTICE DAVIS: You do not appeal on what I might call the compelling other reason ground because hopefully there is not too much of this sort of thing going on.

[118]MR OTTY: I do not, my Lord.

MR JUSTICE DAVIS: So you say realistic prospects of success.

[120]MR OTTY: Yes.

MR JUSTICE DAVIS: On a question of interpretation; not a question of fact or judgment or discretion?

[122]MR OTTY: My Lord, yes. I cannot take it any further than the arguments that have already been advanced.

[123]MR JUSTICE DAVIS: Very well, I will think about it. Ms Finch, do you have any observations?

[124]MISS FINCH: My Lord, I am actually representing both Mr Rechachi and Miss Yusuf today for the purposes of this.

MR JUSTICE DAVIS: Thank you very much for turning up on her behalf as well.

[126]MISS FINCH: As my learned friend has said, I would also like to preserve the position about appealing because obviously I will need to take further instructions, particularly on Miss Yusuf's case. So formally I would ask for permission to appeal.

[127]MR JUSTICE DAVIS: You will convey to Ms Chandran, will you, that the particular point she was urging on behalf of Miss Yusuf, which does not apply to the other cases, about the particular psychological hardship, does seem to be capable of further formal representations accompanied by evidence. That is not so in the other cases that I am aware.

[128]MISS FINCH: My Lord, I note that. I would also seek an extension of time to 25 January.

[129]MR JUSTICE DAVIS: So you are asking for permission to appeal on behalf of both Mr Rechachi and Miss Yusuf?

[130]MISS FINCH: That is correct, my Lord.

[131]MR JUSTICE DAVIS: Right. Mr Vokes?

[132]MR VOKES: I hold the same position of the other claimants in this court, my Lord. I would preserve my position for consideration given the extempore judgment, and indeed I would formally ask for permission to appeal with the time extension.

[133]MR JUSTICE DAVIS: Yes, thank you. Mr Walsh?

[134]MR WALSH: With regard to the judgment, my Lord, it should be the Refugee Legal Centre; not Refugee Legal Council.

MR JUSTICE DAVIS: Of course it should be.

[136]MR WALSH: That is the only error those behind me detected.

[137]MR JUSTICE DAVIS: I am very sorry about that. Of course, that is right.

[138]MR WALSH: I oppose the application from my friend. He should not be granted permission to appeal. My Lord has construed the status document, and I say that construction is clear and correct, with respect.

[139]The other matter I think is appropriate now, I would seek -- I think it is now I can do it -- I should seek an application for my costs against the defendant. I do not know if he is resisting that or not.

MR JUSTICE DAVIS: You won on part and you lost on part.

[141]MR WALSH: Yes, my Lord, but I had to be here for the whole lot.

[142]MR JUSTICE DAVIS: You did not have to argue the whole lot, or rather Mr Cox did not have to. In fairness to Mr Cox, although I dealt with that point on which you won last, it was his first point.

[143]MR WALSH: My Lord, yes.

[144]MR JUSTICE DAVIS: So you may say that once you had to be here -- I understand what you are saying, Mr Walsh.

[145]MR WALSH: Yes, my Lord. There is something else. My claimant is legally aided --

[146]MR JUSTICE DAVIS: All the claimants should have legal funding. I think all counsel have eminently deserved their pay.

[147]MR WALSH: Could I have a moment, my Lord? Nothing else, my Lord. I am obliged.

MR JUSTICE DAVIS: Anyone else?

[149]MR OTTY: My Lord, could I just mention in relation to the application for permission to appeal made against me, your Lordship will have seen from my skeleton argument that similar arguments have already been considered by Newman J. Permission to appeal against his judgment has been refused on paper by Keene LJ, and I would respectfully submit that this should be a matter for the Court of Appeal to decide to take if it wishes to.

[150]MR JUSTICE DAVIS: You say, on what I view as perhaps the central issue in this case -- was there on the facts here conspicuous unfairness -- you say that is just fact-specific.

[151]MR OTTY: My Lord, yes, and it is an application of the principles already articulated in the existing judgments.

MR JUSTICE DAVIS: Mr Vokes, do you want to say something?

[153]MR VOKES: Yes, my Lord. As I understand it, and it was an extremely brief transcript of the remarks -- understandably, because it was a permission hearing before Newman J -- as I understand it, the claimants in that case were arguing the slightly different point that the Secretary of State was not actually entitled to change his policy. That is conceded, as your Lordship --

[154]MR JUSTICE DAVIS: Absolutely. It is rather different.

[155]MR VOKES: Quite. So therefore we maintain our position.

MR JUSTICE DAVIS: Mr Otty, what do you say about Mr Walsh's application for costs against you?

[157]MR OTTY: He certainly should have some, my Lord.

MR JUSTICE DAVIS: How much? He says all.

[159]MR OTTY: I would respectfully say those reasonably assessed to relate to the discrete Kalobo case.

[160]MR JUSTICE DAVIS: Mr Cox had to be present and he had to be present throughout. The interpretation point was his first point, so it is really just the extra costs occasioned by his argument supporting the argument of his colleagues, is it not?

[161]MR OTTY: My Lord, yes, and in a sense it should be relatively easy for the assessment --

[162]MR JUSTICE DAVIS: No, I am going to do it myself. If a percentage is to be paid at all, I will indicate it myself.

[163]MR OTTY: I am grateful, my Lord.

MR JUSTICE DAVIS: Anything else?

[165]MR OTTY: No, thank you, my Lord.

[166]MR JUSTICE DAVIS: Mr Walsh, do you want to say anything about percentages of costs. I appreciate you were not present.

[167]MR WALSH: No, my Lord, but looking at all the papers, the deduction would have to be a small one, and I would say for the sake of tidiness and completeness and everything else, it should be 100 per cent -- for administrative convenience if nothing else.

[168]MR JUSTICE DAVIS: So far as costs are concerned, Mr Otty very fairly says that he does not seek costs against the unsuccessful claimants, so there will be no order for costs in their case.

[169]So far as Mr Kalobo is concerned, he has succeeded in his claim, although he did not succeed on his second ground. But it is right to say he has succeeded on what he had advanced as his first ground, and the extra time taken by Mr Cox arguing the second ground was, although not insignificant in terms of length of time, very much secondary to the overall issue. In the circumstances, Mr Kalobo will have 90 per cent of his costs, assessed on the standard basis if not otherwise agreed.

[170]There will of course be legal representation orders for all the claimants in this particular case.

[171]So far as permission to appeal is concerned, I do not think the situation is such that it is right for me to grant permission to appeal to any of the unsuccessful claimants. It seems to me ultimately that my assessment is a matter of judgment by reference to the circumstances of each individual case.

[172]So far as Mr Otty's application for permission to appeal is concerned, that relates purely to what is a question of interpretation. It does not involve a question of discretion or assessment of the facts. With some hesitation, I am prepared to grant permission to appeal on that point. It is of course for Mr Otty and those instructing him to decide whether or not they wish to pursue it. I will extend time as sought for that purpose.

[173]Thank you all very much indeed for your very helpful submissions.

Yusuf, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 3513 (Admin)

Introduction

(i) Rechachi

(i) Rechachi

MR JUSTICE DAVIS: Yes.

MR JUSTICE DAVIS: Yes.

MR JUSTICE DAVIS: Of course that is right.

MR JUSTICE DAVIS: Yes, thank you.

MR JUSTICE DAVIS: That is very fair.

MR JUSTICE DAVIS: Right, who is appearing on behalf of Mr Kalobo today?

MR JUSTICE DAVIS: Agree that, lodge it and I can initial it.

MR JUSTICE DAVIS: So you say realistic prospects of success.

MR JUSTICE DAVIS: On a question of interpretation; not a question of fact or judgment or discretion?

MR JUSTICE DAVIS: Thank you very much for turning up on her behalf as well.

MR JUSTICE DAVIS: Of course it should be.

MR JUSTICE DAVIS: You won on part and you lost on part.

MR JUSTICE DAVIS: Anyone else?

MR JUSTICE DAVIS: Mr Vokes, do you want to say something?

MR JUSTICE DAVIS: Mr Otty, what do you say about Mr Walsh's application for costs against you?

MR JUSTICE DAVIS: How much? He says all.

MR JUSTICE DAVIS: Anything else?

Cited in 8 later judgments