“The Defendant erred in law as follows: 1. In failing to seek Parliamentary approval for a modification of her policy and practice as applied to those considered by the Defendant’s Case Resolution Directorate and subsequently the Case Assurance Audit Unit, specifically in the application of the policy and/or practice that leave would be granted to those with 6 years’ residence and as per Pankina. 2. In publicising and or informing those considered by the Defendant’s Case Resolution Directorate and subsequently the Case Assurance Audit Unit not to contact the Defendant’s CRD, whilst informing her CRD caseworkers in guidance and training slides that “A person who has actively attempted to resolve their status through requesting progress reports, for example, will have a stronger case than someone who has simply taken advantage of the delay and not made any contact to attempt to regularise their position.”. 3. In failing to publicise aspects of her practice and policy, as detailed within training slides and applied by the CRD, in particular that: a. a person who has actively attempted to resolve their status would have a stronger case; b. “all things being equal” 6 years’ residence would result in a grant of leave; c. the prospects of removal would be considered a relevant factor. 4. In failing to consider that delay on the part of the Defendant in enforcing removal was a relevant factor. 5. In the circumstances of these applications in failing to provide these Claimants with the opportunity for interview or to provide representations. 6. In failing to provide sufficient reasons.”
“Before a decision to remove under section 10 is given, regard will be had to all the relevant factors known to the Secretary of State, including: (i) age; (ii) length of residence in the United Kingdom; (iii) strength of connections with the United Kingdom; (iv) personal history, including character, conduct and employment record; (v) domestic circumstances; (vi) previous criminal record and the nature of any offence of which the person has been convicted; (vii) compassionate circumstances; (viii) any representations received on the person’s behalf.”
“53. Extenuating Circumstances It is the policy of the Agency to remove those persons found to have entered the United Kingdom unlawfully unless it would be a breach of the Refugee Convention or ECHR or there are compelling reasons, usually of a compassionate nature, for not doing so in an individual case. 53.1 Illegal entrants and persons subject to administrative removal action under section 10 of the 1999 Act Full account must be taken of all relevant circumstances before a decision to remove is taken on a case. The factors to be considered are the same as those outlined in paragraph 395C of the Immigration Rules. 53.1.1 Instructions on applying paragraphs 364 to 368 and 395C of the Immigration rules Before a decision to remove is taken on a case, the case-owner/operational staff must consider all known relevant factors (both positive and negative). It is important to cover the compassionate factors in the transcription of the interview and to record them and the fact that you have discussed them with the UKBA officer authorising removal, on the local file minute or IS126E and UKBA internal database records (CID). Removal should not be considered in any case which qualifies for leave under the Immigration Rules, existing policies or where it would be inappropriate to do so under this policy. Relevant factors are set out in paragraph 395C of the immigration rules and in the guidance below, but this list is not exhaustive … 53.1.2 Relevant Factors in paragraph 395C. [I add subparagraph numbers] (i) The consideration of relevant factors needs to be taken as a whole rather than individually, for example, the length of residence may not of itself be a factor, but it might when combined with age and strength of connections with the UK. … • Length of residence in the United Kingdom For those not meeting the long residence requirements elsewhere in the immigration rules, the length of residence is a factor to be considered. In general, the longer a person has lived in the UK, the stronger their ties will be with the UK. However, more weight should be attached to the length of time a child has spent in the UK compared to an adult. (ii) Residence accrued as a result of non-compliance by the individual Where there is evidence of an attempt by the individual to delay the decision making process, frustrate removal or otherwise not comply with any requirements imposed upon them, then this will weigh against the individual. … (iii) Residence accrued as a result of delay by UKBA Case law has established that there are particular contributory factors involving delay that need to be present before it is considered significant enough to grant leave (Court of Appeal judgment in HB (Ethiopia) & others v SSHD[2006] EWCA Civ 1713 refers). These include cases where: • an application has been outstanding for over 2 years; and • no decision has been received from the UK Border Agency during that time; and • the individual has been making progress enquiries during that time; • in the meantime the delay has meant that they have built up significant private or family life or the delay has resulted in considerable hardship: (iv) In addition to the foregoing, provided that none of the factors outlined in ‘Personal History’ weigh against the individual, then caseowners should also place weight on significant delay in cases where, for example: • An initial application or an ‘in-time’ application for further leave (an application made before the individual’s leave to enter/remain had expired) was submitted some time ago. A significant delay in such cases considered as being between 3-5 years. • ‘Family’ cases where delay by UKBA has contributed to a significant period of residence (for the purposes of this guidance, ‘family’ cases means parent as defined in the Immigration Rules and children who are emotionally and financially dependent on the parent, and under the age of 18 at the date of the decision). Following an individual assessment of the prospect of enforcing removal, and where other relevant factors apply, a 3 year period of residence may be considered significant, but a more usual example would be 4-6 years. Family units may also be exceptionally considered where the dependent child has experienced a delay of 4-6 years whilst under the age of 18. • Any other case where delay by UKBA has contributed to a significant period of residence. Following an individual assessment of the prospect of enforcing removal, and where other relevant factors apply, 4-6 years may be considered significant, but a more usual example would be a period of residence of 6-8 years”
“… as the 395C exercise requires a holistic evaluation of cases based on a range of factors – both positive and negative – it does throw up borderline cases where it is difficult to say definitively that it is clearly a case where either refusal must proceed or leave [be] granted. We have generally taken the approach that where a case is genuinely borderline – most often if the negatives associated with an applicant are associated with non-compliance behaviour, rather than criminality – it is more likely that we would err on the side of granting. But we do apply the guidance on non-compliance as detailed in Chapter 53 of the [EIG].”
“34. It is fair to say that my experience has shown in almost all of the cases that have been granted to the best of my knowledge were all individual [sic] who had been in the UK in excess of 6 years.”
“The individual’s personal history will be particularly relevant where residency has been built up as a result of the person evading enforcement action, as it would not be appropriate for a person to benefit from refusing to co-operate with the Home Office. However the strength of the connections that the person has established and any compassionate circumstances should still be carefully considered … An individual’s lawful employment history and how they have supported themselves and/or their family during their stay in the UK may also be relevant to consideration of their personal history. Similarly the individual’s effort to actively press for resolution of their immigration status will add weight to any delays suffered. A person who has actively attempted to resolve their status through requesting progress reports, for example, will have a stronger case than someone who has simply taken advantage of the delay and not made any contact or attempt to regularise their position.”
“Please send your photographs and any other documents along with the completed form sent with this letter, to the address at the top of this letter … If you do not return the documents requested above, we will consider your case on the documents available to us. We ask that you do not make routine telephone or written enquiries about the progress of your case, as this diverts our resources from resolving cases … Should we require any further information about your case, a UKBA colleague will contact you … You should note that if you send us information other than that requested above, this will be treated as information only and will not be accepted as ‘Further Submissions’ to your asylum/human rights claim. Further Submissions to your asylum/human rights claim must be submitted in person at our Liverpool office. Guidance on what UKBA would like to see from any further submissions and details of how to submit them can be found on the UKBA website.”
“Because we have so many cases to deal with, we cannot give you a precise date for when we will consider yours. You can help to speed up consideration of your application by making sure that you have given the UK Border Agency your current address. Then you should wait until we contact you. If we feel we need more information from you, we will send you a questionnaire asking you to give us all your current reasons for wishing to stay in the United Kingdom … We will deal with truly exceptional or compassionate cases earlier if there are compelling reasons for doing so.”
“Not all applicants will receive a questionnaire … We will only send you a questionnaire if we think we need more up to date information from you. If we have not sent you a questionnaire it may be because we do not need to, because we have contacted you in another way or because we are not yet ready to consider your case. You should wait until we contact you.”
“… The UKBA website contains the following guidance for individuals wishing to contact CRD staff: In all cases we would prefer to receive correspondence only if further or supporting evidence is to be provided. Enquiries about the progress of a case may slow down the consideration process. You can contact the case resolution directorate in the following ways: If you have received a notification letter and you want to provide further information or enquire about your case, you should write using the details indicated in the notification letter. If you have an enquiry or you want to provide further information about a case but you have not yet received a notification letter, you should contact the UK Immigration Enquiry Bureau below.”
“Any representations received on the person’s behalf: These must always be considered and given due weight. Individuals may raise other relevant factors not listed above. These should be fully considered on a case by case basis.”
“5. … The simple point is that those who had taken steps to obtain leave to remain in the UK during their time here and had followed those up if there was a delay in consideration of an application would be given credit for that. It was unlikely to be a very weighty matter compared to the other relevant factors, although each case would be considered on its own facts. 6. Whether a person, with no outstanding representations or applications, chased up the CRD for an outcome of the review of their case was not considered to be a relevant factor given that the legacy exercise automatically considered every outstanding case and for resource reasons chasers were not encouraged. If chasers of CRD were received, that was dealt with as correspondence and did not form part of the substantive consideration of the review. 7. There was a distinction between chasing enquiries and provision of further information which went to the substantive consideration of the review. There was no intention to discourage persons who considered that they had information relevant to their case from providing it to CRD … CRD received further information in many thousands of cases for its review.”
“Caseowners must also take into account … whether the individual has maintained contact with the UK Border Agency as required and whether they have been actively pressing for resolution of their immigration status.”
“34. The rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised. Just as arrest and surveillance powers need to be transparently identified through codes of practice and immigration powers need to be transparently identified through the immigration rules, so too the immigration detention powers need to be transparently identified through formulated policy statements. 35. The individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt, provided that the adopted policy is a lawful exercise of the discretion conferred by the statute … There is a correlative right to know what that currently existing policy is, so that the individual can make representations in relation to it … 36. Precisely the same is true of a detention policy. Notice is required so that the individual knows the criteria that are being applied and is able to challenge an adverse decision ... 37. There was a real need to publish the detention policy in the present context … The failure to publish these policies meant that individuals who may have been wrongly assessed as having committed a crime that rendered them ineligible for release would remain detained, when in fact, had the policy been published, representations could have been made that they had a case for release. 38. The precise extent of how much detail of a policy is required to be disclosed was the subject of some debate before us. It is not practicable to attempt an exhaustive definition. It is common ground that there is no obligation to publish drafts when a policy is evolving and that there might be compelling reasons not to publish some policies, for example, where national security issues are in play. Nor is it necessary to publish details which are irrelevant to the substance of decisions made pursuant to the policy. What must, however, be published is that which a person who is affected by the operation of the policy needs to know in order to make informed and meaningful representations to the decision-maker before a decision is made.”
“Caseowners must also take account of any evidence of deception practised at any stage in the process, attempts to frustrate the process (for example, failure to attend interviews, supply required documentation), whether the individual has maintained contact with the UK Border Agency, as required, and whether they have been actively pressing for resolution of their immigration status. The caseowner must assess all evidence of compliance and non-compliance in the round. The weight placed on periods of absconsion should be proportionate to the length of compliant residence in the UK. For example, additional weight should be placed on lengthy periods of absconsion which form a significant proportion of the individual’s residence in the UK.”