Geraldo & Ors, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 2763 (Admin)

Case No CO/5595/2012

[2013] EWHC 2763 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT (LEEDS)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 06/09/2013

Before

THE HONOURABLE MR JUSTICE KING

Between

The Queen on the application ofClaimant

SAMUEL GERALDOClaimant

LYES AROUNClaimant

MOHAMMED IQBALClaimant

SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

Mr Raza Husain QC and Mr Alasdair Mackenzie (instructed by Birnberg Pierce & Partners) for First Claimant

Mr Raza Husain QC and Ms Melanie Plimmer (instructed by Parker Rhodes Hickmotts) for Second and Third Claimants

Ms Julie Anderson (instructed by The Treasury Solicitor) for Defendant

Hearing Hearing dates: 18 th- 21 st and 28 th June 2013

Judgment

[1]Each of these 3 claimants is a failed asylum seeker who has exhausted all appeal rights. Each seeks to challenge a grant in 2012 made by the defendant outside the Immigration Rules in exercise of her general discretion under section 4(1) of the Immigration Act 1971, of 3 years Discretionary Leave to Remain (DLR) in the United Kingdom. Such grants were made by the caseworker concerned using the then current guidance in chapter 53 of the Enforcement Instructions and Guidance (EIG). Such grants were made respectively on the 1 March 2012 (first claimant, Geraldo), 24 May 2012 (the second claimant Aroun) and 1 May 2012 (the third claimant, Iqbal). The principal remedy sought by each is one quashing these respective decisions and a mandatory order directing that the defendant make a grant instead of Indefinite Leave to Remain (ILR).

[2]The hearing before me has been a ‘rolled–up’ hearing pursuant to previous orders of the court.

[3]Although these individual cases are necessarily fact-specific, each is a case which fell within the backlog of cases where the claim for asylum had been made prior to 5 March 2007, being handled by the defendant through the Case Resolution Directorate (CRD) until it was closed in 2011 and all outstanding legacy cases under the so called legacy programme transferred to the Case Assurance and Audit Unit (CAAU). The essence of their claims is that each ‘should have been’ dealt with under the programme by at the latest the 19th July 2011, up until when it is said the defendant’s policy under the programme was to grant any ‘legacy’ individual who was not to be removed from the UK, ILR; that had each been considered by that date each would have been granted ILR; that because of the failure to decide their cases by that date, each has been caught to his detriment by a change of policy by the defendant introduced on the 20th July 2011 to grant only DLR in such cases.

[4]It is important to note at the outset that these are not challenges to a refusal of leave but to the length of leave granted. As an overall rejoinder to the claims, the defendant submits that the difference to the individual claimants between the two grants of leave is not in any event of such magnitude as to give rise to any real injustice in the circumstances of these cases. None has any ‘rights’ basis to remain in the UK, in particular none has any established protection-based or family/private life basis to remain, each having been granted leave to remain outside the Rules on the basis that removal has been decided not to be appropriate. Under the Discretionary Leave (DL) policy applicable to their cases each will be able to apply for further leave to remain after 3 years. If they continue to qualify for leave, such further leave will be granted and after 2 periods of 3 years DL each will be able to apply for settlement. The claimants say there is a real difference: an immediate grant of ILR brings with it the security of an entitlement to remain in the UK permanently without the need for further applications which carry no presumption of a successful outcome and provides a swifter path to citizenship affecting not only the individual claimant but any children. The Facts

[5]I was provided with a chronology applicable to each individual claimant. For present purposes it is sufficient if I highlight the following facts in respect of each. Mr Geraldo

[6]The first claimant is a national of the Democratic Republic of Congo born on the 28th July 1983. He claimed asylum on the 12th April 2003 having claimed to have entered the UK the day before. Asylum was refused on 25th May 2003. An appeal was unsuccessful and all appeal rights were exhausted on 20th January 2004. As far as the CRD was concerned, his solicitors were the firm of Tuckers to whom they wrote in June 2010 (enclosing a letter in standard ‘legacy questionnaire’ form to the claimant at an old address from which he had moved) advising that his case was in the legacy programme. However Tuckers were no longer his solicitors, his interests by then being looked after by the Wandsworth and Merton Law Centre (WLC) who did in fact not long thereafter (19 October 2010) write to the defendant’s Legacy department inviting the defendant to consider his case ‘under the legacy cases’.

[7]Mr Geraldo’s immigration history is then complicated by the fact that he was at some stage prior to 2010 granted a five year residence permit pursuant to EU based rights. This was along with his mother and siblings on the basis of his being a family member of an EEA national resident in the UK, namely his Dutch stepfather. He had in that capacity been included in his mother’s application by letter dated 22 December 2009 for recognition of a permanent right of residence in the UK under EU law. There was during the course of the hearings before me a factual mystery as to the date that permit came to be issued. In 2011, by letter dated 9 December, the claimant’s solicitors (in a letter of complaint to the legal ombudsman) had asserted that the permit was valid from 11 January 2007 until 11 January 2012 whereas the only copy documentation then in the court bundle was a letter from the Home Office Immigration and Nationality Directorate (IND) date stamped 30 January 2006 (although purportedly dated 31 March 2005), purportedly enclosing the material permit accordingly suggesting that the permit ran until January 2011. Further investigations on the part of the defendant since the close of the hearing however have disclosed that the claimant’s January 2006 permit was revoked in December 2006 but reinstated from January 2007 thereby in truth expiring in January 2012.

[8]The relevance of all this to the present proceedings is the defendant’s evidence, through Mr Forshaw and Mr Bray, that this claimant’s case would not in normal circumstances have fallen for review under the legacy programme, whilst he had extant leave to remain, in this instance pursuant to EU law. However the issue of for how long this claimant had such an extant right pursuant to EU law is further complicated by the fact that in early 2010 (19 February 2010) his stepfather died and it is common ground that whatever the expiry date of the residence permit, the claimant could thereafter have no extant EU based right to remain unless he were a dependant of the EU national at the time of his death which it would appear the claimant was going to have difficulty in establishing. In 2008 at the latest he had ceased to be a member of the stepfather’s family when he had started living with his girlfriend, another DRC national, by whom he had a child in November 2008. Indeed it is known that by letter from the claimant’s solicitors dated 29th April 2010 to the EU casework section of the UKBA the claimant’s name had been removed from the EU permanent residence application (although that application of his mother and siblings did eventually succeed following an appeal on the basis that they had acquired a permanent right of residence before the material death).

[9]Just to complicate matters further when on the 19 October 2010 the claimant’s then solicitors (WLC) wrote to the ‘legacy department’ of the UKBA asking for consideration of his status ‘under the legacy cases’ they also referred to the previous family EEA application, to the complication of the ‘eventual death of the qualified family member’ and asserted that ‘we are separately making a submission that Mr Geraldo himself has an automatic right to permanent residence’ and they were making this separately ‘because his case has the added need to demonstrate dependence at the time of the qualified family member’s death’. No such further separate application was in fact made but the point being made by the defendant in this context is that any review prior to 19 July 2011 would have necessitated further investigation of the claimant’s factual position and then his legal status arising as a result which would have been bound to have taken some time. The point again being made by the defendant was that any consideration of the question as to what would or might have been the outcome, had the claimants’ cases been reviewed earlier than they were, would have to look to what a caseworker ‘would or should have known if appraised of the facts’ and what would have been seen on the CRD database available to the caseworker was the fact of a residence permit which would have needed further investigation. Although originally it would appear that the CRD were not aware of the residence permit (evidently Mr Geraldo had ticked the box on his EEA appeal saying that he had made no other applications and did not provide the HO reference for his asylum application so the 2 different claims were not married up), the fact of the grant of the five year permit in July 2006 certainly came to their attention when WLC in their letter of November 16th 2010 (referred to below) enclosed a copy of the Home Office letter of 31.03.05.

[10]Be this as it may, the next stage in the chronology is that the defendant, through the CRD, did write to his new solicitors WLC of which she was aware having received their letter of 19th October 2010, by letter dated the 3rd November 2010, reiterating that the claimant’s case was being dealt by the CRD, stating that she had some evidence on file but ‘not enough to make a decision’ and requesting further information and documentation concerning the claimant’s history of residence in the United Kingdom. (‘To support your client’s case, you must provide evidence of continuous residence from the date they entered the United Kingdom. We request at least a document for each year’.)

[11]This letter was in the standard ‘legacy questionnaire’ form. Material to the present issues, its opening paragraph read:

‘Re Mr Samuel Joao Geraldo Democratic Republic of the Congo 28 July 1983. The Case Resolution Teams have been established to deal specifically with the older asylum applications, such as your client’s and their aim is to resolve these cases by either removing individuals from the United Kingdom or granting them leave to remain in accordance with existing law and policy. Details on how we are handling older cases can be found at (details given of website).’

Further into the letter the following appeared:

‘You should note that if you send us any 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 to our Liverpool office … Please submit documents FAO: CRTS 12, PO BOX … Croydon …’

[12]By letter of the 30th November 2010 WLC replied enclosing that information and documentation. WLC had already, by their letter of 19 October 2010, made reference to the claimant’s relationship and the birth of his daughter.

[13]Thereafter there was no further communication from the defendant until late December 2011 when responding to letters of complaint. In the meantime on 11 March 2011 WLC had written to the CRD seeking a response to their previous letter. On the 14 July 2011 Battersea Law Centre (‘BLC’) which had taken over the conduct of the case had written advising that the claimant’s mother and sister’s appeal had been allowed and asserting that the claimant ‘ought to be granted settled status … in this country in line with other family members’ and referring to ‘our client’s ongoing request for ILR status’. Letters of complaint on the claimant’s behalf over the failure to answer correspondence and ‘to consider the request for ILR’ were made to the defendant on October 2011 and to the Parliamentary Ombudsman via the claimant’s MP in December 2011. 3 years DLR was eventually granted to Mr Geraldo on the 1 March 2012. Mr Aroun

[14]The second claimant is a national of Algeria, born on the 23 March 1971. He entered the UK illegally in November 1994. He claimed asylum which was refused in 1996 with all appeal rights exhausted by February 1998. In February 1996 he had written to the defendant saying that his circumstances had now changed, that he had married and wished his application to remain to be based on that basis. Further in June 1996 he commenced employment and continued to be so employed until June 2008, albeit illegally after the exhaustion of his appeal rights. (In March 1997 the defendant through IND had written to his wife to confirm that he had been entitled to work since July 1995 and might continue lawfully to be employed ‘until such time as he has exhausted all appeal rights against the … decision to refuse him asylum’).

[15]After 1998, the claimant did not maintain contact with the defendant for some 10 years (in breach of, it might be added, and in non-compliance with temporary admission conditions). At some stage in or about 2001 the defendant(i) passed the file to ‘enforcement backlog exercise’ with an instruction that if the marriage was genuine it might be appropriate to ‘concede the case’ (but with the corollary that if not genuine this claimant was ‘on the removal track’)

(ii) in June 2001 requested information on the claimant’s address from the National Identity Fraud Unit and

(iii) in July 2001 wrote to the claimant (in all likelihood at the Leeds address so identified) informing him ‘that in view of the length of time which has elapsed’ the defendant ‘is prepared to review your case in light of the current compassionate factors’ and inviting information in support of his case. No response was received. The next time the defendant heard anything from Mr Aroun was in October 2008 when a form of authority to act was received from new representatives, Cole and Yousaf. Subsequently by letter dated the 24 June 2009 those solicitors in a letter to the ‘legacy CRT’ made further submissions described as a fresh human rights claim based on Art 8 and interference ‘with private life’ and in addition as a strong case for leave to remain ‘under paragraph 395C of the Immigration Rules’, based on his having been living in the UK for almost 15 years and having always worked and supported himself and being a man of good character with strong connections with the UK. Those submissions did not however make any reference to any marriage or partner.

[16]The letter was marked internally by the defendant as ‘N/t on CRT’ which Mr Bray told the court meant there was at that date no trace of the claimant on the Home Office Integrated database with the possible explanations being that his asylum claim predated CID records and/or because when his claim was last processed before he absconded, it was in the backlog of enforcement cases based on the application to leave to remain based on marriage, that it is possible it was not recognised as a failed asylum seeker case and this may have explained the delay in tracking down his file, although Mr Bray did not purport to have any personal knowledge that this was in fact the case.

[17]Thereafter absent any response from the defendant, the claimant’s solicitors sent chasing letters in August 2010, November 2010, May 2011 and October 2011. The one of May 2011 expressly said that ‘it is our understanding that the (UKBA) is winding down the case resolution directorate as it is of the opinion that that all cases covered by the Case Resolution Programme has now been resolved. Clearly our client’s case has yet to be resolved despite the fact he has been in the United Kingdom for over 16 years … it is hoped that our client will be granted indefinite leave to remain without further delay’.

[18]On the 4th October 2011 Mr Aroun was asked (for the first time) to report and this was on a monthly basis. On the 23rd February 2012 the claimant’s solicitors received an undated letter from the CAAU saying that his case had been reviewed, that it was acknowledged that he had further submissions outstanding upon which the UKBA had yet to reach a final decision and that ‘this is one of a very small number of cases on which the UK Border Agency has not yet been able to come to any final decision’. On 29th February 2012 the defendant refused his application for permission to work on the basis that his outstanding submissions were not protection-based.

[19]Ultimately a decision was reached in his case on 24th May 2012. His further submissions of June 2009 were rejected as a fresh claim but 3 years DL was granted in exercise of the defendant’s discretion ‘for a reason not covered by the Immigration Rules’. Mr Iqbal

[20]The third claimant is a national of Pakistan born on the 25th October 1978. He entered the United Kingdom on the 5th May 2004 and claimed asylum. His claim was refused and after a series of appeals, during which he was on immigration bail, the Court of Appeal refused permission to appeal in September 2008 and he became appeal rights exhausted on 17th September 2008. Thereafter from 19th September 2008 Mr Iqbal did not comply with his bail conditions, failed to report and became classified as an absconder. He, for example, failed to attend a bail hearing on 24th July 2009 and absconder action was taken against him on 2nd November 2009. Then on 12th April 2010 solicitors (Thomson and Co) made contact by letter with the defendant requesting a ‘legacy questionnaire’ and purporting to lodge further submissions (albeit invalid as they were not lodged in person under the ‘Further Submissions in Person’ process). The claimant was subsequently sent a legacy questionnaire by standard form letter from the Defendant’s CRD dated the 10th May 2010 telling him his case would be considered under the legacy programme and requesting the standard information including photographs and details of any relationship and family.

[21]That standard form letter included in his case the following, amongst other matters:

‘Your case is in the backlog of older asylum applications that the UK Border Agency is in the process of concluding. The Case Resolution Directorate (CRD) is responsible for your case. The Case Resolution Teams have been established to deal specifically with the older asylum applications, such as yours, and their aim is to resolve these cases by either removing individuals from the United Kingdom or granting them leave to remain in accordance with existing law and policy … It is important that we hold the most recent information about your case … We ask that you do not make routine telephone or written enquiries about the progress of your case as this diverts resources from resolving cases. We will not confirm receipt of your reply to this letter … or of your photographs. Should we require any further information about your case, a UKBA colleague will contact you.’

[22]What happened thereafter in the ensuing months is a history of the claimant’s solicitors purporting (letter 18 May 2010, wrongly dated 22 04 2009) to make further submissions (again by post) based in part upon Ahmadi activities in the UK and on Article 8, until on 9th September 2010 they did provide in written form all relevant details and information in support of a further asylum and human rights claim which were delivered by hand in accordance with the procedure. In those submissions Mr Iqbal claimed to have married his wife in London on 1st February 2009 when he started to live with her. However alongside this the claimant was detained on the 14th June 2010 for removal as an immigration offender and was not released until the 9th July 2010, with reporting conditions following representations by two different sets of solicitors, only one of whom (Lloyds) mention the claimant having a wife and problems with her pregnancy. It would appear that in his detention interview the claimant wrongly claimed that his wife, a Pakistan national, had arrived some 3–4 months earlier on a student visa. His first child was born on the 7th July 2010 and a second child on the 14th August 2011. It is not in dispute that since being released Mr Iqbal continued thereafter to comply with his reporting conditions which were relaxed over time.

[23]In fact his wife made a claim for asylum on the 16th October 2010 which, although it has been refused and a First-tier Tribunal appeal has been dismissed, is still outstanding, her appeal to the Upper Tribunal for which she has leave having been adjourned pending further country guidance. One of the complications in this case is that it is clear that on the 8th March 2011 Mr Iqbal’s case was pulled for consideration by the CRD but the CID note indicated that no review took place at that stage because his file was with the New Asylum Model (NAM) which was dealing with his wife’s case. The CID note reads:

‘…this case is currently with NAM TLds TM7. There are outstanding further reps dated 13 September 2010. This case has been reviewed by CRTS3, outcome refused not currently removable by CRD’

[24]It should be observed however that Mr Forshaw conceded in evidence to the court that there was no reason in principle why Mr Iqbal’s case could not have been considered under the legacy programme without awaiting the outcome of his wife’s asylum claim as indeed was the ultimate position when he was granted 3 years DL on the 1 May 2012, the defendant having previously noted on 14th October 2011 in a reply to the claimant’s MP who had sought to have his wife added to the claimant’s application, that submissions from the claimant of 15.6.10 and 13.09.10 were ‘currently awaiting consideration’. The Challenge

[25]The claimants concede that to have any hope of succeeding in their claims (at least as originally formulated) it would have to be established that the identified failure to decide their cases by the 19 July 2011 was an unlawful one. But necessarily to succeed in such challenge to the decisions of 2012, each would have to go further and establish that in exercising her discretion in the way she did in 2012 the defendant was acting unlawfully or irrationally in public law terms. An immediate difficulty standing in the way of such challenge is that it is common ground that the lawfulness of any such decision is to be assessed by reference to the law, policy and facts current at the time they were taken (see Ravichandran v SSHD [1996] ImmAR 97), by reference to which as at 2012 it might be thought the decision in each case was entirely lawful and rational, given the current policy to grant only DLR, subject to defined exceptions into which no claimant fell, in cases in which it was considered not appropriate to remove as an illegal entrant or overstayer.

[26]No doubt because of the perceived difficulties, the legal basis of the challenge has shifted during the currency of these proceedings. As originally pleaded in their individual claim forms each claimant sought to rely upon a variation of ‘legitimate expectation’. That is no longer pursued in terms although Mr Husain QC, on behalf of the claimants, would say that this is to nothing. In addition the first claimant relied upon the delay in deciding his case as giving rise to and offending an alleged principle of ‘conspicuous unfairness’. Again Mr Husain did not seek to put his case on this basis before me.

[27]As opened to the court at the first day of the hearing no challenge was made to the lawfulness of the change in policy on the 20th July as such. It was not opened on the basis that there was an immutable policy to be applied to any ‘legacy’ case. Rather the challenge was based on(i) an alleged ‘historic injustice’ of the failure of the defendant to deal with the claimants’ cases prior to that date when the old ILR policy was in force, in breach of an alleged time limited commitment given by the defendant to make decisions on legacy cases by the 19th July 2011 or in the alternative in breach of the obligation of a public authority to make an administrative decision within a reasonable period of time (the unlawful delay basis of the alleged injustice)

(ii) the failure of the defendant when exercising her discretion in 2012, to correct this historic injustice by granting ILR when she had the ability to do so given her wide discretion under section 4(1).

[28]Translated into legal principle as said to be recognised in the authorities, this challenge to the lawfulness/rationality of the 2012 decisions is put on the basis of the failure of the defendant ‘to take into account as a legally relevant factor’ the need to correct ‘historic injustice’ occasioned by the failure to consider their cases by 19 July 2012. The line of authority here relied upon is that beginning with the Court of Appeal decision in R (Rashid) v SSHD

[2005] EWCA Civ 744

as further considered in, amongst other cases, R (S) v SSHD

[2007] EWCA Civ 546

. Other cases on ‘correcting historic injustice’ cited to me included AA (Afghanistan) v SSHD

[2007] EWCA Civ 12

; R (on the application of S, H and Q) v SSHD

[2009] EWCA Civ 142

; SL (Vietnam) v SSHD

[2010] EWCA Civ 225

; KA (Afghanistan) v SSHD

[2012] EWCA Civ 1014

; EU (Afghanistan) v SSHD

[2013] EWCA Civ 32

; Mohammed v SSHD

[2012] EWHC 3091

[29]What is clear from all these authorities in my judgment however is that (i) the historic injustice must be based upon some prior illegality (in all these cases there was either a legally flawed prior decision, in some instances such as in Rashid by reason of a decision made in disregard of a relevant policy, or at least a legally flawed failure to carry out a duty, as in KA, which impacted upon the ability of the applicant to make out an asylum claim) and there must be sufficient causal connection between that illegality and the alleged historic injustice caused thereby, and the alleged prejudice caused to the claimant by the decision under challenge to justify the intervention of the court. Considerations of ‘conspicuous unfairness’ are not in themselves a relevant test to trigger the intervention of the court, although the degree of prejudice may be a relevant factor when it comes to the question of remedy.

[30]Further on the question of remedy, the same line of authority makes clear that this court has no power to direct the Secretary of State how to exercise her discretion under section 4(1) of the 1971 Act. It has no power to order the defendant to make a grant of ILR to these claimants. At most the court, if it considered that the exercise of discretion had been vitiated by the failure to take account of ‘an historic injustice’ in the way contended, would be enabled to quash the material decisions and remit the case to the defendant for reconsideration. At its highest, the power of the court would be to indicate how it expected the discretion to be exercised if it considered the circumstances to be so compelling that no reasonable Secretary of State could conclude otherwise. On this see, for example, Sir Stanley Burton in EU at paragraph 6.

[31]The whole basis of this ‘historic injustice’ challenge is accordingly the alleged commitment of the defendant to deal with the cases by a specific date (19 July 2011) rather than say the end of July 2011 (since at any date after 19th July the new policy would be in force); or in the alternative, the proposition that any delay in deciding the cases after the 19th July, rather than after say the end of July, would amount to unlawful delay in public law terms.

[32]By the end of the hearings however, during his final submissions, Mr Husain QC sought to introduce two new heads of challenge.

[33]One described as ‘more ambitious’ was in effect to assert that there was a policy always to grant ILR to anyone falling within the legacy programme who was not to be removed.

[34]The other was to introduce for the first time a challenge to the lawfulness of the change in policy on 20 July 2011 on the basis that the defendant failed to have regard to ‘the vast numbers’ of individuals like the claimants who had not had their cases reviewed under the legacy programme, and in effect had failed to make provision for a further exception to the DL policy (in addition to those already catered for).

[35]Miss Anderson has vigorously objected to the amendment at such a late stage of the proceedings to introduce this third head.

[36]The claimant’s amended or rather re-amended grounds of challenge accordingly now read as follows:

‘1. The decisions to grant discretionary leave, instead of ILR, to the Claimants on 1 March 2012, 24 May 2012 and 1 May 2012 respectively was vitiated by the SSHD’s failure to take into account the historic injustice to the Claimants, occasioned by her failure to consider their cases by 19 July 2011: (a) this was the timetable to which Dr Reid had committed his Department on 19 July 2006; alternatively, (b) this was the time by which public law principles regulating unlawful administrative delay required a decision, the consequence of which failure was that the Claimants were denied the ILR which they would probably or possibly have been granted, had their casers been considered by 19 July 2011 (Claimants’

Updated Skeleton Argument, para 81). 2. The SSHD’s failure to grant the Claimants ILR on 1 March 2012, 24 May 2012 and 1 May 2012 respectively was inconsistent with the very rationale of the legacy programme under which their cases were being considered (Claimants Updated Skeleton Argument, para 59). 3. The change in the leave policy on 20 July 2011 was unlawful because the policy-maker was unaware of, and failed to have regard to, the fact that vast numbers of individuals, like the Claimants, had not had their cases reviewed under the legacy programme. The impact of the policy change on those individuals was a mandatory relevant consideration for the policy-maker. The erroneous departmental view was that all such cases had been reviewed.’ The question of permission

[37]I will and do grant permission in respect of the first two grounds and hence proceed to deal with each on a substantive basis. However, in respect of the third proposed ground – the challenge to the change in policy – in light of the objections raised, I refuse leave to introduce such ground at such a late stage for reasons I explain below. The background

[38]Before considering these heads of challenge further, I turn to the effect of evidence I have received concerning the legacy programme and the changes in policy. Within the court bundles are witness statements from:(i) Mr Neil Forshaw, Assistant Director of the UKBA, who speaks to the work of the CRD and the transfer of cases to the CAAU. Mr Forshaw was formerly Chief Case Worker in the CRD from between January 2008 and November 2010. He returned to the CAAU as Assistant Director in July 2012. The witness statement which he gave to the court in Hakemi (see below) has also been placed before me.

(ii) Mr Neil Parkin, the grade 7 civil servant in the Asylum Policy Unit of the Immigration and Border Policy Directorate of the Home Office, who was directly concerned with the development and implementation of the Discretionary Leave to Remain policy for cases falling under chapter 53 of the EIG. He had worked in that Unit from February 2006 until June 2007 and then since May 2011. His evidence included his adopting that set out in an earlier witness statement of Katherine McNulty, Senior Executive Officer in the same Unit, prepared while Mr Parkin was on paternity leave and which had been based for the most part on information provided by Mr Parkin.

(iii) Mr Stephen Bray, a Senior caseworker in the CAAU who speaks to the individual facts of each claim. Both Mr Forshaw and Mr Parkin attended the hearings for cross examination. The Legacy programme

[39]The Case Resolution Programme or the Legacy Programme, was instigated by the government in July 2006 to deal with a vast backlog of unresolved asylum claims, that is to say for the most part failed asylum claims, some going back many years in which the unsuccessful claimant had neither been removed nor a decision made to grant him or her leave to remain in the UK on some basis other than the claimed refugee status either within the Immigration Rules or outside the Rules, and with many of whom the Home Office had lost contact. One of the problems was that as at July 2006 there were in the region of 400-450,000 electronic and paper records concerning such claims within the Home Office which had not been opened or reviewed (and indeed once the programme was under way further records came to be included, ultimately reaching a total caseload of some 500,000 – see the report of the Parliamentary Home Affairs Select Committee for April – July 2011) but which were recognised to be ‘riddled with duplication and errors and cases of individuals who have since died or left the country or become EU citizens’, (to quote the statement of the then Home Secretary Dr John Reid MP to Parliament in July 2006). As Mr Neil Forshaw told me, until the exercise of going through the vast archive of assorted records was undertaken to identify how many cases remained to be dealt with, the true nature of the task undertaken under the programme could not be known.

[40]The programme was an operational programme only. That is to say it was a programme designed to deal with the backlog, with its own internal priorities and procedures, but it was always made clear that the programme did not involve any kind of amnesty and that cases handled within the programme would have applied to them the same generally prevailing law and policy which applied to all other immigration and asylum cases, being handled within other units elsewhere within the UKBA. I say at once that none of the evidence before me supports the proposition that there was a discrete ‘legacy policy’ different from that applied to other, for example, failed asylum cases not within the programme, where consideration was being given to the grant of leave outside the Rules (on this aspect see further the decision of Burton J in Hakemi and Others

[2012] EWHC 1967 (Admin)

. In other words the programme did not purport to create any new substantive rights or new basis for the grant of leave.

[41]To handle and work through the cases within it, the Casework Resolution Directorate (CRD) was established to review and make a decision (that is whether to remove or grant leave) in each of the cases over time. It was always recognised that this would take a number of years.

[42]On any view of the contemporaneous material, the aim was to clear the backlog within five years, although whether the government ever undertook more than such an aspirational objective, and whether in any event a specific cut off date was contemplated, is at the heart of the proceedings before me. I deal with this issue and the relevant material relied on by the claimants below.

[43]The programme started work on selected cases on 1 November 2006. The CRD was created on 1 April 2007. Case records were allocated to case owners from December 2007. The programme dealt only with cases where the initial asylum claim was made prior to 5 March 2007. Applications made after that date were to be dealt with by other units within the UKBA under the New Asylum Model (NAM) aiming to decide cases much more speedily than before.

[44]The essential organisational features of the programme were described in the briefing information paper placed in the House of Commons library (entitled Asylum: Legacy Cases) dated 10 August 2010, in these terms (any emphasis is the emphasis of this court): - information about the legacy programme is given on the UKBA website – this explains that legacy cases are those asylum applications made before 5 March 2007 which have not been concluded ‘either because of errors in recording information or because there is still some action we need to take’. These include: outstanding asylum applications; asylum applications which have been refused but there is no indication that that the applicant has left the UK; asylum applications which have been refused but there is no indication that the applicant has left the UK; in time applications for further leave to remain from applicants previously granted a temporary form of status such as Discretionary leave - ‘people cannot apply to be considered under the programme’ as it is only for cases that have been in the system for a very long time already. - the cases are being handled end to end by about 950 caseworkers in 40 regional teams. Each case is allocated to a case worker who is responsible for it until it is ‘concluded (whether that is by granting leave or ensuring removal’); - ‘once a case has been selected for consideration’, the case worker may send a questionnaire to the individual with a deadline for its return. Applicants will only be sent a questionnaire if the case worker thinks they need more up to date information on the applicant’s case before they review it. From 4 June 2008 CRD has notified individuals and their legal representatives when one of its teams begins actively considering their case, but there are exclusions from this policy; …all of the cases falling within the CRD caseload are believed to have been allocated to a CRD team by now. - 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 progress.

[45]The CRD processed cases according to four published priorities (cases in which the individual concerned might pose a risk to the public; those who were in receipt of public support; those cases in which it was likely a decision would be made to grant leave; cases where the individual could easily be removed from the UK) but retained a discretion to deal with exceptional or compassionate cases out of turn. Delays

[46]The programme inevitably, given the size of the backlog, led to further delays in dealing in particular with those who had outstanding ‘further submissions’ but the process instigated by the Programme, including the adoption of the stated priorities, was nonetheless upheld as lawful by Collins J in FH & Others v SSHD

[2007] EWHC 1571 (Admin)

. That decision considered the historic delays, but had regard to the sheer volume and complexity of the task being undertaken, and the wide discretion given to the Secretary of State in administering applications for leave to remain, in answering in the affirmative that which the court regarded as the critical question namely ‘whether the manner in which the backlog is being dealt with is in all the circumstances as reasonable and fair’ (see judgment at paragraph 21).

[47]It is to be noted that the delays considered in FH(i) were in most cases a delay in decision making on further submissions (‘… the majority of these claims involve applications which are said to amount to fresh claims following the rejection both by the defendant and the appellate authority of the claimant’s initial asylum application’) (paragraph 12),

(ii) varied between 2 to 5 years, and that the court there held that although such delays were not to be condoned, ‘none were so excessive as to be for that reason alone unlawful’ (paragraph 21). Decision to grant leave inside the Rules and outside the Rules

[48]Not all cases within the programme necessarily involved a fresh claim submission of the kind with which FH was concerned (which would involve consideration by the case worker of the fresh claims and paragraph 353 of the Immigration Rules), and as Eady J pointed out when himself considering the workings of the legacy programme in Baser v SSHD

[2012] EWHC 3620 (Admin)

, at para 15, the mere fact that an individual was being considered under the programme did not entail an immigration decision since ‘that would only arise if a fresh application (for leave to remain) had to be considered’. In some cases consideration under the programme would simply lead to a confirmation, where no further applications or submissions had been received, that the applicant in question still had no basis for leave to be granted and should be removed. The case worker did still however, even if there were no application for leave to remain within the Rules, on the basis of for example a fresh claim, have to consider whether or not to make a decision to remove the individual.

[49]This tension between a decision whether or not to grant leave within the Rules and if not, whether to grant leave outside the Rules in the exercise of the defendant’s general discretion under section 4(1) of the Immigration Act 1971, has been emphasised throughout the defendant’s evidence before me in support of the submission that the CRD was concerned with both types of decision, albeit the majority, in so far as a grant were made, were a decision outside the Rules. I would accept that evidence. Again to quote the House of Commons Paper:

‘When the CRD considers a legacy case it does so using the ordinary criteria for deciding whether or not to recognise Refugee status or to grant another form of leave such as Humanitarian Protection or Discretionary leave … where applicants do not fit any of the specific criteria for being granted leave to remain, UKBA workers must also consider whether their case falls within any of the general considerations which would prevent removal.’

Guidance to case workers when considering whether to grant leave outside the Rules: paragraph 395C of the rules; Chapter 53 of EIG

[50]In so far as the individual was an overstayer, the relevant paragraph under the Rules was that at 395C which set out a non exhaustive list of factors to be taken into account, before deciding whether to remove:

‘395C. Before a decision to remove under section 10 (the Immigration Act 1971) is given, regard will be had to all 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.’

[51]As Miss Anderson submitted, paragraph 395C went only to the question whether the defendant should stay her hand on removal from the UK, in the case of an overstayer. It did not in terms apply to illegal entrants nor did it impose any obligation to grant leave to remain (or necessarily of leave of any particular duration). It gave rise to no rights or entitlement. Guidance as to whether or not to grant leave in such circumstances to either class of individual, outside the Rules, in the exercise of the defendant’s general section 4 discretion, was and continues to be provided by Chapter 53 of the Enforcement Instructions and Guidance as periodically updated. That Chapter 53 guidance made use of the factors set out in 395C, giving more detailed guidance under each listed factor, but equally made clear that the list was not exhaustive and further that the discretionary exercise required a ‘holistic’ evaluation of a range of cases based on a range of factors, both negative and positive. Thus to quote from the Chapter 53 of 12 August 2009 (exhibited to Mr Forshaw’s evidence in Hakemi); ’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 reason, usually of a compassionate nature, for not doing so in an individual case. 53.1.1. Instructions on applying paragraph 364 to 368 and 395C of the immigration rules. Before a decision to remove is taken on a case, the case owner … must consider all known relevant factors (both positive and negative). 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 the guidance below but this list is not exhaustive … 53.1.2. Relevant factors in paragraph 395C The consideration of relevant factors needs to be taken as a whole rather than individually, for example, the length of residence may not be a factor, but it might when combined with age and strength of connections with the UK.’

[52]Particular guidance given in relation to the listed factors, included (again using the August 2009 version):

‘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 tie will be with the UK. Residence accrued as a result of delay by the 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 (CA in HB (Ethiopia) … [2006] EWCA Civ 1713 refers. These included cases where: ‘an application has been outstanding for over 2 years … in the meantime the delay has meant that they have built up a significant private or family life or the delay has resulted in considerable hardship; In addition to the foregoing, provided none of the factors outlined in the ‘personal history’ weigh against the individual, then case owners should also place weight on significant delay where, for example … any other case where delay by the 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. Personal history (includingcharacter, conduct and employment record) … case owners 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 case owner must assess all evidence of compliance and non compliance in the round.’

Personal history (includingcharacter, conduct and employment record)

[53]The history of changes in the policy guidance on the exercise of this general discretion is more fully set out in the judgment of Burton J in Hakemi but as an example (and in the context of these present claimants a significant example) is the shortening in August 2009 in the length of the guideline number of years that might be regarded as ‘significant’ residence, a reduction from 10 to 12 years to 6 to 8 years. Again to quote the House of Common Library paper (CB 20):

‘The guidance includes an indication of the weight that should be attached to a person’s length of residence in the UK and how the UKBA will determine whether a significant delay has occurred. In August 2009 the UKBA issued an updated version of this guidance, which gave caseworkers scope to consider granting persons permission to remain if they had been in the UK for six to eight years, rather than ten to twelve years as previously suggested.’

[54]In Hakemi Burton J recorded the evidence of Mr Forshaw to him that once an asylum applicant had been resident in the United Kingdom for 6 years, under the policy of the Secretary of State, ‘everything being equal he should be granted leave to remain.’ The duration of any leave to remain

[55]Save for possibly a short period (2 months) when a particular version of the Chapter 53 Guidance may or may not have been published in August 2008, the evidence is all one way that the Chapter 53 Guidance prior to July 2011 never itself specified the period of leave which could or should be granted if the para 395C factors were considered to prevent removal. However it is accepted by the Secretary of State that the practice in such circumstances was to grant ILR. This is borne out by the statistics given in response to a freedom of information request in March 2011 that for the period up to 19 January 2011, of the cases granted leave under the legacy programme, 97%, that is to say 145,843, were granted ILR, and of the remainder, 3,405 were granted DLR and 439 humanitarian protection. It is clear from the evidence I heard particularly from Mr Forshaw that these more limited grants will not have been by virtue of the exercise of the guidance under Chapter 53 but by reference to other ‘rights based’ criteria under which the person qualified. In other words if a person was one to whom the factors in Chapter 53 were ‘positively’, from the individual’s standpoint, applied by the case worker so as to deem removal not appropriate, the practice was to grant ILR. The position was, I have no doubt, accurately summarised by Miss Elizabeth Farrell, Chief of Staff to Emily Miles of the CRD, in a letter dated 15 January 2010:

‘on the 12 August 2009 the UK Border Agency updated the operational guidance on paragraph 395C of the Immigration Rules. We hope that this will ensure consistency of decision making process across the Agency … I must make clear there has been no amendment to the Immigration Rules or existing legislation. The grants that the Case Resolution Directorate (CRD) makes under 395C are all grants of Indefinite Leave to Remain (ILR). However CRD grants other forms of limited leave as well as ILR, depending on the individual circumstances’

[56]However I should stress that I accept entirely the point emphasised by Miss Anderson that the CRD granted ILR where there was a positive outcome of application of Chapter 53 EIG, not because a case fell within the legacy programme but because it was applying Chapter 53 in the same way as the rest of UKBA. It is clear beyond argument that CRD granted forms of leave other than ILR where appropriate to the circumstances of the case applying the current law and policy. ‘Concluded cases’

[57]One of the issues before me has been what was understood by the term ‘concluded’ for the purposes of the Legacy Programme. The claimants’ contentions on this question (namely that it was a term indicating either removal or a grant of ILR) were designed to support the submission that the very rationale of the legacy programme, if removal was not the appropriate option, was to make a grant of ILR. The claimants rely upon statements made, for example, by Miss Emily Miles, Director of CRD, to a meeting of the ‘Case Resolution Stakeholder Group’ (including representatives of the Immigration Law Practitioners Association (ILPA)), in September 2008 that ‘Discretionary Leave’ was not considered to be ‘a conclusion’ by the CRD and the further statement of Mr Forshaw himself in his witness statement in Hakemi at paragraph 10 that ‘the purpose of CRD was there fore to conclude cases by either removing the applicant or granting leave so that no further applications would be required’. Mr Forshaw himself told the court this was a misinterpretation of his evidence in Hakemi and this I would accept. As Mr Forshaw himself pointed out, and as has already been demonstrated above, it is clear that as a matter of fact the CRD did make grants of leave other than by ILR. These were included in the statistics given as relating to a concluded case under the programme for example by Lin Homer, the then Chief Executive of UKBA, in letters in 2008, 2009 and 2010, to the Chairman of the Parliamentary Home Affairs Select Committee (HASC), the table 1.1 attached to which headed ‘Conclusions’ would define ‘case conclusions’ as ‘cases taken to a logical conclusion, including removal, grant of a period of stay within the UK and closure of the case through updating of CRD records where actions hadn’t previously been recorded’ and defined ‘Grants’ as ‘Grants: Cases granted some sort of leave, be it limited or indefinite commissioned by Case resolution Directorate Count of case ID’.

[58]However, again I would accept, as already indicated, that these more limited grants would be cases in which leave was granted other than on the positive application of Chapter 53, for example in cases qualifying for humanitarian protection or refugee status when the current practice and policy was to grant 5 years leave to remain (although also with refugee specific benefits). To quote Mr Forshaw again (first w/s para 7): ‘If pursuit of removal was judged not to be appropriate the case worker would grant leave and the period of leave would be indefinite leave to remain (ILR). This was a longer form of leave than asylum status (5 years leave to remain although also with refugee benefits) humanitarian protection (5 years leave to remain) and discretionary leave (normally 3 years leave to remain)’.

[59]I ought also to add that included within ‘conclusions’ were cases which had been in the ‘controlled archive’ for more than six months. The controlled archive was an archive into which cases were put after 6 months when the individual to whom the cases referred could not be traced but with a potential for being revived if the individual were to surface. Again as explained by Miss Homer in the same letter attachments ‘the controlled archive is made up of cases where we have made extensive attempts to contact the applicant without success. Controlled archive cases are considered completed for statistical purposes when they have been in the archive for more than six months.’ The transfer to the CAAU: ‘unresolved cases’

[60]As already indicated by reference to the Lin Homer letters, the Case Resolution Programme was monitored by a parliamentary select committee (HASC). By the time the CRD was wound up in 2011, HASC in its report of April – July 2011 (published November 2011) noted a final position of ‘500,500’ records of which 479,000 cases were said to be ‘concluded’ of which 172,000 had been granted ‘leave to remain’, 37,500 had been removed, and 268,000 were ‘others’ which included duplicate records, errors or cases in the ‘controlled archive’ which then stood at 98,000 to which 500 would be added if not traced within 6 months. 3,000 stood to be granted subject to security checks.

[61]The then 18,000 legacy cases then identified as still outstanding, together with the controlled archive, were transferred to the CAAU in Liverpool to be resolved by that unit. Mr Forshaw’s evidence (second w/s para 20) was that the arrangements for transfer were made well before July 2011 and the CRD closed in March 2011. It is clear that the evidence to the HASC from the Home Office (in particular Jonathan Sedgwick, Acting Chief Executive of the UKBA on 13 September 2011), was that all of these ‘non concluded cases’ were cases which had been ‘reviewed’ under the programme and a decision had been made, but for one reason or another removal had still to be completed with the explanation being ongoing litigation, impending prosecution, incomplete legal or criminal proceedings, non compliance and offenders from ‘difficult to remove countries’ (see HASC report at para 15). In similar vein the response of the government to the HASC’s 9th report of session 2010-12 (‘On 31 March 2011 the UK Border Agency had reviewed all cases in the asylum backlog, ahead of schedule’).

[62]In fact, not long after, it emerged that this was an inaccurate statement to Parliament and there were a number of cases which had not been reviewed at all, albeit they were available to be reviewed. How many unresolved cases fell into this category is by no means clear. In his highly critical report for the quarter ending July 2012, the Independent Chief Inspector of Borders and Immigration, John Vine, spoke of 9,393 cases as having been identified by the CAAU as ‘where reviews had not been carried out’. However Miss Anderson makes the point that this has been shown to be ‘loose language’ (referring to the evidence drawn to my attention of Mark McEvoy, Assistant Director of the CAAU, in Hakemi). She herself also draws my attention to the evidence of ILPA to the Home Affairs Committee that the unreviewed cases may be ‘hundreds possibly more’.

[63]The critical point to be made at this stage however is that this has been acknowledged by the defendant for some time. To quote Mr Forshaw at para 15 (first w/s):

‘In evidence to HASC on 13 September 2011 it was stated that as at that date there were still a number of cases which were not concluded (i.e. leave granted or actually removed). It is recognised however that at this time it was stated that all of the legacy cases had been reviewed. This was a regrettable inaccuracy for which UKBA has accounted to Parliament. UKBA now recognises that there are cases that were not fully reviewed by CRD but should have been, and cases that were placed in the controlled archive (and therefore not fully reviewed by CRD) even though some contact had been maintained.’

Evidence of Maladministration

[64]I should record that the Vine report referred to, does contain material understandably relied upon by the claimants as evidence of maladministration and administrative delay on the part of the defendant in dealing with cases which fell within the legacy programme and as explaining why in their particular cases the defendant never got round to opening their files before she did. Thus for example Mr Vine referred as at September 2011 (report para 5.124) to a backlog of 100,000 pieces of correspondence with some 28,000 pieces of post remaining unopened, and to the likelihood that many cases placed into the Controlled Archive at the end of the CRD had been done so incorrectly ‘on the basis that the applicants and/or legal representatives had not replied to Agency correspondence when in fact they had’. I should add however that Miss Anderson does not accept that this material has any relevance to these individual cases, the boxes of unopened correspondence being peculiar to the short period of time in 2011, not relevant to these cases, when the work of the CRD was being transferred to the CAAU.

[65]Further the report criticises the inadequacy of ‘tracing steps’ undertaken by the UKBA to trace ‘absconders’ (para 5.29), the failure of the Agency to follow up employer contact details held on applicants in order to trace ‘applicants’ (paras 5.54/5.55) and the further failure by the Agency to undertake ‘any proactive work within CRD to locate and trace any of the individuals in our sample prior to placing these cases into the asylum controlled archive’ (5.21). This was said to be a serious failing. The Agency was also said not to be ‘meeting the commitments it had made to carry out extensive checks in these cases’ with the point being made that the Agency should have been much more proactive in undertaking data matching exercises to identify whether any of the individuals were known to other government departments (for example the Department of Work and Pensions (DWP) or the HMRC) or financial institutions (e.g. credit reference agencies). Mr Forshaw was cross-examined on these particular ‘tracing’ failures in the context of Mr Aroun who had been working up until 2008, with the suggestion he had been capable of being traced between 1998 – 2008 through the DWP. Mr Forshaw’s evidence was however that the tracing requirements referred to, were linked to the controlled archive and were steps undertaken to confirm that a person could be put in the archive as an untraced person whereas none of the claimant’s cases were placed in the controlled archive. Moreover Miss Anderson made the further point that none of this material could have any relevance to Mr Aroun who, on the evidence referred to by Mr Bray, was never in the CRD cohort of cases until he got in touch again after some 10 years, his entry into the UK predating the CRD database (and possibly also because he had been treated as a marriage case and not an asylum case at his own request).

[66]Mr Vine then himself observed in paragraph 5.126 that ‘these delays also had potentially serious consequences for applicants following the policy change made by the Agency in July 2011, when the category of leave given to asylum legacy applicants changed from ILR to DL’. The history of the change in policy is a matter to which I now turn although I should say that I accept the point made by the defendant’s witnesses that although the API (Asylum Policy Instruction) policy for which Mr Parkin was responsible has been commented upon by the Chief Inspector, the policy, as distinct from the manner of its implementation, did not fall within his remit. Change in Policy

[67]On the 20th July 2011 the policy guidance given to caseworkers when considering the application of Chapter 53 and the grant of leave to remain outside the Rules by reference to the paragraph 395C factors, changed so that if a person was not to be removed, 3 years discretionary leave would be granted. In other words a new Chapter 53 ‘DL policy’ was introduced as part of the defendant’s’ general DL policy applicable to other category of cases.

[68]The EIG guidance was further updated in February 2012 to take account of the deletion from the Rules, of paragraph 395C on 13th February 2012 and the insertion of paragraph 353B which itself reflected a policy change in identifying and describing more restrictively the exceptional circumstances in which it would not be appropriate to remove illegal migrants from the UK and putting an onus on the migrant to make submissions to this effect. Paragraph 353B is in these terms:

‘Exceptional Circumstances 353B. Where further submissions have been made and the decision maker has established whether or not they amount to a fresh claim under paragraph 353 of these Rules, or in cases with no outstanding further submissions whose appeal rights have been exhausted and which are subject to a review, the decision maker will also have regard to the migrant’s: (i) character, conduct and associations including any criminal record and the nature of any offence of which the migrant concerned has been convicted; (ii) compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable; (iii) length of time spent in the United Kingdom spent for reasons beyond the migrant’s control after the human rights or asylum claim has been submitted or refused; in deciding whether there are exceptional circumstances which mean that removal from the United Kingdom is no longer appropriate. This paragraph does not apply to submissions made overseas. This paragraph does not apply where the person is liable to deportation.’

[69]That Chapter 53 DL policy itself was further amended on 9th July 2012 (after the decisions taken in the present cases) to limit the grant of DL to 30 months. At the same time a further change was made to the periods of DL which had to elapse before an applicant became eligible to apply for settlement (two periods of 3 years, that is to say six years, became 120 months (10 years). The Policy expressly stated that ‘subsequent periods of leave can be granted providing the applicant continues to meet the relevant criteria’.

[70]Two express exceptions were made to this general policy setting out two situations in which the defendant in effect continued to accept that the practice followed before 20 July 2011 should still be applied, although not I might add by purporting to apply ‘past policy’ but rather by making that practice part of the current policy applicable to cases falling within the exceptions. One was where the defendant had made a written commitment, in effect a promise, to the individual concerned that his case would be considered before 20 July 2011 but had failed to do so. The other was where an erroneous adverse decision had been made before 20 July 2011 so that when the decision was retaken on the same evidence the same type of leave should be granted as would have been granted if the decision had been correctly taken in the first place. This exception in effect reflected use of the discretion of the Secretary of State to correct a ‘historic injustice arising from a past illegality’ upon which the Rashidline of authority turns.

[71]When Chapter 53 DL policy was further amended to reduce the 3 year grant to one of 30 months and the increase in the period which had to elapse before eligibility for settlement, like exceptions were introduced so to reflect the position as it had been between 20 July 2011 and 9th July 2012.

[72]Thus in the version of the DL policy produced to the court which dates from the 9th July 2012 the following appears as far as is material for present purposes:

‘5.2 Exceptional circumstances Where removal is no longer considered appropriate following consideration of the exceptional factors set out … in the guidance in Chapter 53 of EIG, 30 months DL should be granted, unless one of the following situations applies: - where the UK Border Agency makes a written commitment that a case would be considered either before 20 July 2011 or before 9 July 2012 but failed to do so, and the (UKBA) later decided that a grant is appropriate; - where the (UKBA) makes a decision either before 20 July 2011 or before 9 July 2012 that a grant of leave on the grounds then listed in chapter 53 was not appropriate, but after that date carried out a reconsideration of that decision and – on the basis of the same evidence - decides that the earlier decision was wrong and leave should have been granted. - when the above applies and the relevant date was before 20 July 2012, ILR outside the Rules should be granted. This is because prior to 20 July 2011 ILR was granted to cases which met the exceptional circumstances. Where the above applies and the relevant date was before 9 July 2012, 3 years Discretionary Leave should be granted with the person becoming eligible to apply for settlement after two periods of 3 years Discretionary Leave. This is because between 20 July 2011 and 9 July 2012 the (UKBA) granted 3 years Discretionary Leave in cases that met the exceptional circumstances in Chapter 53 of EIG.’

[73]No other discrete exceptions were made or have been made in any published policy of the defendant although the defendant accepts that there always remains a residual discretion to depart from the published policy where there is ‘good reason to do so’, but this is to be reserved for ‘self evidently’ exceptional individual circumstances ‘to avoid unfairness to others’ (see Katherine McNulty at paragraph 22). Mr Parkin referred to a residual discretion to depart from policy ‘in compelling’ exceptional circumstances.

[74]Mr Parkin was cross examined upon an email to a member of the ILPA from one Rob Jones, described as Head of Home Office Asylum Policy, dated 7th September 2012 with a copy to Mr Parkin, in which the following appears:

‘We discussed the ILR to DL point and I am conscious that there are a number of challenges to our change in policy in train. As I said, in a perfect world we may have chosen to conclude all legacy cases before changing the leave granted under 395C/353B but we didn’t have that option. UKBA guidance provides a number of exceptions that allows ILR (or the more ‘generous’

DL policy) still to be granted to some current cases and our steer to case owners has been to be pragmatic when considering where to apply such exceptions. This pragmatism extends to cases where an applicant has submitted all relevant information in good time but there has been a clear failure by UKBA to act on it.’

[75]Mr Parkin’s response was simply to emphasise that this was an informal communication, not part of any carefully considered written submission and was at best a statement of ‘general approach’ if the residual discretion was ever called upon but not a policy statement. Similarly, both he and Miss McNulty were at pains to describe the observations of John Vine in his July 2012 report (at para 7.44) suggesting that a further third exception had been introduced in November 2011 based on ‘other compelling reasons’; of which examples were given such as ‘having spent a very long time in the UK (say 7 years plus)’ or ‘having had multiple and serious administrative delays in a case being considered, through no fault of the applicant’, as being a misconstrual and misunderstanding of the materials available to Mr Vine, in particular of a series of emails to which Mr Parkin was party which were no more than a discussion of the residual discretion which must always exist to depart from the general policy in compelling ‘exceptional circumstances’, with the point being made that it would be for a senior case worker to consider the exercise of any such discretion in any particular case. To quote Mr Parkin’s evidence on this point (W/s bundle 26F): ’19. … After the introduction of the DL policy as a result of the litigation burden, I have had reason to actively consider whether it is appropriate and possible to produce a viable general ‘exception’ policy for legacy cases. It was in this context that I believe the Chief Inspector’s team may have misapprehended a discussion with CAAU to assume that there was a third ‘exception’ to the application of the DL policy over and above those very narrow and discretionary matters identified in the API set out by Ms McNulty in her statement. At paragraph 7.44 of the Chief Inspector’s report that is relied on by the Claimants, mention is made of a second scenario where a grant of ILR might be appropriate which would in effect be a third much more general exception. This appears to have been taken from an email exchange which I had with a senior caseworker at CAAU. In this email, advice was provided on the circumstances in which it might be appropriate to depart from the DL policy (and it is this advice, in its entirety, which appears in the Chief Inspector’s report). However, it was judged that there was no clearly definable category of case that could form another express exception so that this was never put forward to caseworkers or published as a general exception. Instead, it was decided to emphasise to caseworkers that as a matter of basic decision-making they had the discretion to depart from the policy and grant ILR if there were sufficient compelling circumstances to justify the departure. Any such exceptional case had to be referred to a senior caseworker to ensure consistency of approach. This is reflected in paragraph 23 of Ms McNulty’s statement.’

[76]Mr Parkin was not challenged on this evidence and I have no reason to reject it. It is clear there was no third specially defined exception in addition to the two already set out, and indeed Mr Parkin went out of his way to explain how difficult it would be to define any other group of ‘legacy’ cases to be expressly favoured (w/s bundle 26E paras 16-18): ’16. There are a number of obstacles to attempting to carve out some or all of the legacy cases from the DL policy. Importantly, (and as indicated by Ms McNulty’s statement), creating such an excluded category would undermine two of the key principles which underpinned our reform of the immigration system: namely that cases should be decided on their individual merits and that they should, whenever possible, be decided on the basis of the law and policy in place at the date of decision. There is no special quality true of all legacy cases which merits an initial grant of settlement rather than an initial grant of DL (with the opportunity to apply for settlement in due course absent adverse factors such as a conviction). Rather, legacy cases tend to be ones where an illegal entrant has no valid protection claim but simply refused to leave the UK as the law requires, though this is not true in all cases. Secondly, deviation from adherence to the usual principle that the law and policy at the time of decision applies risks arbitrary and unpredictable results. Where any line is drawn there will be those on the wrong side who consider themselves to be unfairly treated so there is no overall benefit from deviation rather than sticking with established principles.17. In theoretical terms there would be real issues with defining a group to be favoured. I note that the Claimants do not contend that all legacy cases should be excluded. There is a good case for excluding from the exclusion those whose cases were not determined prior to the introduction of the DL policy as a result of their own misconduct. For example, those serving prison sentences and those who had absconded. However, it is not so straightforward to determine the scope of such an exclusion as there may also be good grounds also for including those cases where there had been significant delay due to absconding or conviction even if that did not apply as at 20 July 2011.

18. Further, in practical terms even identifying what cases should be considered as part of the legacy for these purposes would have difficulties. I understand that there are cases where after removal a person re-entered the UK and their cases fell back within the legacy arrangements. Finally, there would be an issue of just how long the exclusion should apply for and whether the previous law and policy should be applied for an indefinite future period to the excluded cases.’

[77]Perhaps more importantly however, is to observe that in any event this debate about the extent of the exceptions under the newly introduced policy can have little relevance to the issues this court has to decide since there is no ground of challenge in the present cases on the basis that the 2012 decisions were flawed because of a failure to consider the applicability of a published exception or indeed any unpublished exception to the current policy. Rationale for the change in policy

[78]The rationale for the change is described both by Miss McNulty and Mr Parkin in their respective witness statements and was expanded upon before me by Mr Parkin.

[79]What clearly emerges and what I accept from this evidence is as follows: 1) The timing of the introduction of the DL policy (20th July 2011) was not linked to any specific end date for the legacy programme such as the 19th July 2011. Mr Parkin told me that he was not aware of any such date and the 20th July was no more than the date reached for practical reasons. The original intention had been to introduce it a month earlier. Miss McNulty’s evidence was that:

‘the specific date of introduction on 20th July 2011 reflects only the time taken for mundane practical reasons in updating the guidance from the decision in principle by Ministers on 15th June 2011 to bring Chapter 53 in line with other leave policies’; 2) The introduction of the Chapter 53 DL policy was not predicated upon an assumption or perception by those responsible for introducing the policy, that the legacy programme had been completed. Mr Parkin was at pains to emphasise that he himself had been aware that there were outstanding legacy cases which had not been concluded although he did not know the exact numbers as that was not within his area of responsibility. He had known of the existence of the controlled archive which on any view contained cases which had not been concluded. Mr Husain put to him the contents of a letter from Eddy Montgomery, Director of Operations, North West Region, UK Border Agency to the Chair of the ILPA dated 17 October 2011 in which it was said that ‘this change (to the Chapter 53 EIG Guidance) was introduced only after CRD had completed its review of all cases on the legacy cohort and the new guidance now applies to any case, legacy or otherwise’ (the emphasis is the emphasis of this court), but Mr Parkin stated that this was neither ‘here nor there’

. He accepted based on this and other material (see again for example that which Mr Sedgwick had erroneously reported to the HASC) that there may have been a ‘departmental understanding’ that all outstanding legacy cases had at least been ‘reviewed’ before the policy change was introduced, but that was not his understanding and further in any event he repeated more than once that the completion of the legacy programme was not something which was regarded as a necessary .prerequisite to the introduction of the DL policy. He did not accept as accurate the statement of the Chief Inspector at paragraph 7.31 that ‘the rationale for this policy change was that as the vast majority of legacy cases had now been cleared, it was no longer appropriate to grant ILR’; 3) The rationale for the introduction of the Chapter 53 DL policy, which applied to the outstanding legacy cases and non legacy cases alike, was rather the application of key principles for the reform of the immigration system that cases should be decided upon the basis of individual merits according to the law and policy in place at the time of the decision, and was part of a larger revision of the overall leave policy to provide for a coherent overall framework within the system and ensure fairness between the categories. In particular it was felt that the grant of ILR to those without any rights based claim to remain but for whom removal was nonetheless not considered appropriate by the application of the 395C factors (as then still in place) and Chapter 53 guidance, was out of line for example with those who could lay claim to protection under the UK’s treaty obligations. In part account had been taken of parliamentary criticism that the grant of ILR to the Chapter 53 cases was over generous. The aim was to put the Chapter 53 guidance on a sustainable basis.

[80]Mr Parkin was cross examined at some length on the rationale behind the two express exceptions to the DL policy to which I have already referred. As I have already indicated, his evidence was that he did not consider there was any legal obligation to introduce any exceptions, that the ones which were introduced were ones he nonetheless considered were ‘right’ and ‘fair’ but that he could see no justification for any wider exceptions or how such wider exception could be coherently drawn up. He would not accept, as a fair analogy with the second exception which he described as dealing with an historic extant decision which a reconsideration had shown to have been wrong (‘correcting what had gone wronghistorically’), a postulated case which ‘ought’ to or ‘should’ have been decided, and which ‘would have been decided’ in favour of a grant of leave, before the change in policy, since he took issue with what was meant by ‘ought’ or ‘should’ to have been decided as distinct from ‘could’ have been decided. His basic response was that the only ‘should’ to which any legacy individual could lay claim, as a failed asylum seeker with no other rights based claim, was an obligation to leave the country once his asylum claim had failed.

[81]This cross examination had little relevance to the pleaded case as it then stood. I record however, as it is relevant to the third ground now sought to be pursued, that Mr Parkin did concede that his approach to exceptions was by reference to his assessment of the impact of the change in policy upon those upon whom it would impact, that he had not known how many cases had in fact not been concluded under the legacy programme, and that had he known there were (as it was put to him) ‘many thousand cases’ which had not even been reviewed, it might or might not have made a difference. He did not however accept the proposition that the existence of a ‘considerable number’ of ‘outstanding cases’ meant that the policy change was flawed. The alleged commitment to determine/conclude/consider all legacy cases by a specific date (19 July 2011)

[82]I turn finally to record the material relied upon by the claimants to establish the corner stone of their primary submissions, namely a commitment by the defendant to ‘conclude’ (to use the expression used by Mr Husain in opening to the court) all cases which fell within the legacy cohort by the 19th July 2011, or at least a commitment to ‘consider’ all such cases by that date (as ultimately expressed in the re-amended grounds of challenge). When considering the relevant material, it is well to remember that the commitment to be established if it is be of any assistance to the claimants, has to have the quality that its breach would amount to an illegality on the part of the defendant.

[83]It is common ground that the critical material is the content of the statements made by the then Home Secretary (Dr John Reid) to Parliament in July 2006. It is accepted that these are the fons, the beginning and the end, of the alleged commitment, that it was for the court to determine the issue by looking at the material objectively and that issue did not fall to be determined on the basis of statements/comments/views expressed at later dates by civil servants or others, which would of course include the evidence of Mr Forshaw as to what he understood the departmental understanding of the position to be.

[84]Dr Reid made two relevant statements to Parliament: the first on the 19th July 2006, the second on the 25th July 2006. I set out the key extracts below. Any emphasis is the emphasis of this court.

[85]Both statements were made in the context of a wider exercise of announcing ‘plans for transforming the Home Office’ (to quote Dr Reid‘s opening words on 19 July) and ‘reforming the immigration and asylum process within the Home Office’, and went beyond setting out the proposals on how the ‘legacy cases’ were to be dealt with. The 19th July 2006 statement (Hansard HC vol 449, col 323) 12.36pm The Secretary of State for the Home Department (John Reid):

‘I should like to make a statement about our plans for transforming the Home Office … (col 324): In administration, the house knows that for example the national audit office last year suggested that 283,000 unsuccessful asylum applicants might still be here … … reflecting the difficulties of successive governments in removing failed asylum seekers. This is reflected in the immigration and nationality directorate’s case load of around 400,000 to 450,000 electronic and paper records, which … are riddled with duplication and errors, and included cases of individuals who have since died or left the country, or are now EU citizens … We will tackle the case load in the IND with the aim of clearing it, not in 25 years as has been suggested, but in five years or less. We will put our books in order. However as today’s capability review shows, we need to go much further in general and fundamental reform. For all these reasons, I am today setting out plans for an ambitious set of reforms across the Department. They are outlined in the document that we published today.’

The 25th July 2006 Statement (Hansard vol 449, col 735) 12.31 pm The Secretary of State for the Home Department (John Reid):

‘Last week I set out to the House our plans for transforming the Home Office … Today, as promised, I return to the house with further proposals for reform of the immigration and nationality directorate, with the aim of making it fair, effective, transparent and trusted, and of rebuilding confidence in our immigration system. I will now set out our plan, a copy of which I have placed in the library … To change IND, I have set out four new strategic objectives … (col 736) Thirdly we will fast–track asylum cases, remove those whose claims fail and integrate those who need our protection. We will continue to remove more failed asylum seekers who make unfounded claims now we have reached the tipping point. By the end of 2009 … we aim to deal with 75% of new asylum cases – granting or removing as appropriate - within six months. In five years time, by the end of 2011, we intend to deal with 90% within six months, and we have set out plans to achieve that. We will deal with the legacy of unresolved cases in five years or less, as I said last week. We will prioritise those who may pose a risk to the public and then focus on those who can be more easily removed, those (col 737) receiving support and those who may be granted leave. All cases will be dealt with on their individual merits: there will be no amnesty.’

The ‘plan placed in the Library’

[86]There is within the Court Bundles (Core vol 2 page 607) a copy of a ‘Home Office Immigration and Nationality Directorate’ document dated no more specifically than ‘July 2006’ entitled ‘Fair, effective, transparent and trusted Rebuilding confidence in our immigration system’ which I infer must be the plan placed in the House of Commons Library referred to by Dr Reid on the 25th July 2006 and which must therefore have been published that day (as distinct from 19th July).

[87]At paragraph 2.10 the following appears:

‘We will also deal with the legacy of the older cases that have yet to be fully resolved. We plan to do this within five years or less. We will prioritise who may pose a risk to the public and then focus on those who can be more easily removed, those receiving support and those who may be granted leave. All cases will be dealt with on their individual merits. There will be no amnesty.’

[88]On the same page within a highlighted list of bullet points headed ‘We will’ the following appears:

‘We will: - … - deal with the legacy of unresolved cases within five years or less’

Other material

[89]I was referred to a large number of other documents recording the understanding of various civil servants and others as to what, if anything, the defendant had made a commitment back in July 2006. I have already referred to the limited (if any) use this material can have for present purposes. However given the prominence which some of this material was given by Mr Husain in his cross-examination of Mr Forshaw, I record the key material relied on as follows (again any emphasis is the emphasis of this court): a letter from Robert Eagle, Director of the asylum casework directorate (although not of the CRD as such) dated 16 March 2007, written in reply to a letter ‘with questions about the legacy programme’.

[90]This letter stated amongst other things:

‘3. The Home Secretary’s statement implies that the asylum legacy will be cleared by July 2011. In other words within 5 years of his statement. Revision of our standard reply letters to avoid any confusion on this point is in hand’

Letters sent out to individuals within the legacy cohort

[91]Mr Forshaw was cross examined about the reference to the revision of ‘our standard form reply letters’. In this context Mr Husain referred him to the contents of two particular letters set out respectively in the judgments in R (Sathakaran) v SSHD

[2009] EWHC 2916

and R (MP Congo) v SSHD

[2009] EWCA Civ 125

. In the first (see para 3) a letter from the CRD to the claimant’s solicitors dated 26th March 2009, had stated:

‘On the 19 July 2006 the then Home Secretary Dr John Reid announced to Parliament that the Immigration & Nationality Directorate (now renamed the UK Border Agency) had a legacy of some 450,000 electronic and paper records. The aim is to resolve these case records in five years or less, and by 19 July 2011’

In the second the defendant by letter dated 8 October 2007 had written to the appellant’s solicitors in response to a letter before action ‘in respect of the failure by the Secretary of State to reach a decision regarding the appellant’s application for indefinite leave to remain’ using almost identical terms including ‘the aim is to resolve these case records in five years or less, and by 19 July 2011.’

[92]Mr Forshaw did not recognise either as standard letters although could not exclude them as being such, although he emphasised both the use of the term ‘aim’ and his belief that the reference in letters, if any date was given, would more usually be to ‘July’ or ‘Summer 2011’. He was however prepared to accept that the letters to which he had been referred did reflect the ministerial intent.

[93]I should record that the two letters relied on by Mr Husain were the only two of their type unearthed in the course of these proceedings. Miss Anderson points out that the letter sent out to Mr Alemayehu (originally one of the claimants to be dealt with in these proceedings but whose claim has been withdrawn) dated 18th December 2009 stated: ‘the aim is to resolve theses case records by July 2011’ and none of the present claimants received any letter containing any time frame. Of the two claimants who received a ‘standard form letter’ (Mr Geraldo and Mr Iqbal), the material letters spoke only of an ‘aim’ (see again above at paras 11 and 21). Information given to Parliament

[94]Miss Anderson referred me to the following paragraphs of the House of Commons paper of 10 August 2010 placed in House of Commons library to which I have already referred: Introduction 2nd paragraph:

‘CRD has a target to complete the programme by the end of July 2011 although there have been calls for it to finish this work earlier UKBA remains confident it will meet the July 2011 deadline’ para 6.2 ‘UKBA remains confident that it will meet the target of concluding the legacy casework by July 2011’ para 6.3 referring to the concerns of the HASC about ‘the feasibility of the CRD meeting the summer 2011 end date’ para 7 Non asylum legacy cases – ‘the UKBA intends to complete consideration of this set of case files in the same time frame as the legacy asylum cases (i.e. by end July 2011)’

[95]In a letter of 1st November 2010 to Keith Vaz MP, chair of the HASC, Miss Lin Homer, chief executive of the UKBA spoke of her being ‘confident that we remain on track to complete the programme by summer 2011’. A letter in similar vein was sent to Mr Vaz on 2nd March 2011 by the acting chief executive, Mr Sedgwick.

[96]Chief Inspector Vine himself in his July 2012 report spoke of the then Home Secretary making ‘a commitment that the UK Border Agency “must deal with” the legacy of unresolved asylum cases no later than the summer of 2011’. Evidence of Mr Forshaw

[97]The thrust of Mr Forshaw’s evidence was that the CRD did not understand that an unequivocal commitment had been made to conclude every case within the legacy cohort by the end of July 2011 but that there was an aim to ‘review’ every case by the end of July and to make a decision in every case capable of being decided. He drew a distinction between a ‘review’ and ‘concluded case’. Not every case was capable of being ‘concluded’ following a review. For example where, upon a review, it had been decided that a grant of leave was not appropriate, action to enforce removal might prove difficult to complete by the end of the programme, for a variety of reasons. He did however accept that by ‘review’, he meant more than a mere opening up of the file and the term was meant to embrace the concept of deciding cases capable of being decided. At one stage in his evidence he agreed there was a ‘commitment’ to review (in other words to decide cases capable of decision) cases but equally made clear that the CRD was not working to any specific end date. Operationally ‘it was understood that the CRD programme would last until the end of July 2011’. The court’s conclusions Substantive consideration of the Grounds upon which permission is granted

[98]Having set out in detail the background material relevant to these proceedings the court is now in a position to state its conclusions on each of the grounds of challenge to the defendant’s decisions to grant DL, in respect of which I have been prepared to grant permission, that is the first two pleaded grounds in the re-amended grounds of challenge. I take each in turn. The failure to take into account the historic injustice to the claimants occasioned by the failure to consider their cases by the 19 of July 2011

[99]The difficulty with this primary head of challenge is, as I have already explained, the need for the claimants to demonstrate an illegality on the part of the defendant in failing to consider their cases by the specific date of 19th July 2011, leaving aside the further question whether any injustice has resulted thereby which the defendant should have considered correcting, in exercise of her discretion under section 4(1) of the 1971 Act.

[100]Again as already explained, this illegality is now put in two alternative ways. Again I take each in turn. Illegality arising out of a breach by the defendant of a commitment to conclude or at least consider all cases falling within the legacy cohort by the 19th July 2011

[101]To establish such a commitment, capable of giving rise, if broken, to an illegality according to principles of administrative law, the claimants, in my judgment, need to demonstrate that that which Dr Reid stated to parliament amounted to and was intended to be a binding commitment in the terms contended for, in effect in the nature of a promise not only to Parliament, and to the public at large but to each ‘legacy case individual’ (individuals whose cases fell within the legacy programme), to conclude or at least consider each legacy case by 19 July 2011.

[102]I find it quite impossible, on any objective reading of those statements, bearing in mind the context in which they were spoken (a Ministerial statement setting out a number of aims and objectives for the new UKBA) to read such an unambiguous binding commitment or promise to ‘legacy individuals’ into Dr Reid’s words. At most, in my judgment, they were aspirational, setting out a clear declaration of an objective namely an aim to deal with the unresolved cases within five years or less but nothing more.

[103]It is significant in this context that the claimants have chosen not to pursue their claims based on ‘legitimate expectation’. Such a claim could not begin to be made out absent evidence of a clear unambiguous statement of practice or promise from which it would be contrary to principles of good administration for the Minister to resile, absent good reason to do so (see Laws LJ in R (Nadarajah) v SSHD

[2005] EWCA Civ 1363

, at paras 68, 69) which evidence in my judgment is clearly absent here. The only legitimate expectation which these claimants had was that their cases be determined by the current law and policy as at the date of determination and this is what each obtained.

[104]Moreover it is in any event quite impossible in my judgment to read into the words an unambiguous commitment to do that which is contended for, by a specific date such as the 19th July. One could just as easily make out a case for saying the end date was the 25th July 2011 (the date of the second statement and that of the accompanying plan placed in the House of Commons Library). I note with interest that in a Scottish decision delivered since the close of the current hearings (DM, Re Judicial review

[2013] CSOH 114

), the contention (unsuccessfully) being made by the petitioner based on the same parliamentary material, in the context of a legitimate expectation claim, was that there had been a promise that all legacy cases would be dealt with within 5 years not of the 19 July but of the 25th July 2006.

[105]It is equally significant, when considering the question of ambiguity in the context of Dr Reid’s words, that the claimants, reflecting perhaps the evidence heard in these proceedings, have shifted their contention as to the nature of the legal obligation which Dr Reid was imposing upon the defendant by his ministerial statements from one to the effect of ‘concluding’ all cases by the stated end date to one of ‘considering’ all cases by that date. The fact is that if Dr Reid had wanted to make a specific promise to deal with all legacy cases by the 19th July 2011, whether meaning by ‘deal’ concluding or at least considering or reviewing, he could have said so in clear and unambiguous terms, which he did not. And given the uncertainty as to what the case records would contain, at the time he made the statements (see again para 39 above) it is not surprising that he made no such specific promise.

[106]I should make clear that I have reached these conclusions without assistance from the ‘other material’ setting out how others understood the import of Dr Reid’s statements although it is still of note that, apart from the two letters referred to by Mr Husain, there is no evidence that anyone understood there to be a commitment to an end date of the 19th July and certainly no written commitment was made to any of these individual claimants in such terms. Moreover in deference to Mr Husain’s reliance upon Mr Forshaw’s evidence of a ‘commitment’, I should say that I have not ignored that evidence. It is just that Mr Forshaw was not qualified to give evidence of a legally binding commitment. At best he could give evidence only as to what the operational understanding within CRD was.

[107]I should also record that in objectively considering the meaning of Dr Reid’s parliamentary statements, I have borne in mind the approach of the court in both R (Tozlukaya) v SSHD

[2006] EWCA Civ 379

and NF (Ghana) v SSHD

[2008] EWCA Civ 906

. However the present case is very different from those cases and from Tozlukaya in particular where the Court of Appeal was interpreting an existing policy (DP5/96) having regard to the statement of the Minister. I agree with Miss Anderson when she submitted that Tozlukaya ‘is not authority for an approach of creating a ‘stand-alone’ enforceable legal obligation by interpretation from a statement in Parliament of objectives for the reformed immigration services over the medium term’. Illegality based upon delay

[108]This is a very different basis of illegality from that based on an alleged parliamentary commitment. It is in effect a submission that the failure to consider the claimants cases by the 19th July 2011 (as opposed say by the 25th July or the end of July) meant that the defendant was guilty of ‘unlawful’ delay since (to quote the new grounds) ‘(b) this was the time by which public law principles regulating unlawful administrative delay required a decision’, and further that this delay has given rise to a historic injustice requiring correction through the intervention of the court. This is in effect a complaint of maladministration on the part of the defendant in not getting round to reviewing these cases earlier than she did, resulting in alleged unfairness in her applying a different policy from that previously applicable.

[109]I find it impossible to accept these submissions.

[110]I was referred to the approach of the court in R (Rechachi) v SSHD

[2006] EWHC 3513 (Admin)

, where Davis J at paragraph 38 said:

‘it seems to me that these cases conform what is really an elementary principle: that the length of the delay in question cannot normally be taken on its own without consideration also of the consequences of the delay in assessing whether or not the failure to issue the letter of grant of relief to remain is to be categorised as unlawful and to require the grant of relief. Put another way, the entire circumstances of each case have to be borne in mind’

[111]However of more significance in the present context where none of the claimants had any entitlement to the grant of leave within the Rules and where none is complaining of the result of a delay in determining an application within the Rules (such as a claimed fresh asylum application itself), is the decision of the Court of Appeal in S, H & Q v SSHD

[2009] EWCA Civ 142

indicating that mere administrative delay (uncoupled from any promise or commitment to deal with a case by a certain date) does not readily give rise to an illegality relevant to a subsequent decision properly based on current policy, calling for ‘corrective’ intervention by the court, and arguments of ‘unfairness’ based on administrative delay simpliciter do not give rise to any jurisdiction in the court to intervene.

[112]Goldring LJ put the matter thus at paras 44-46 in S, H & Q: ’44. First, the normal principle is plain. If the Secretary of State takes a decision after the policy in question has been withdrawn, the policy does not apply. The rationale is clear. The person is not entitled to asylum. There is no reasonable likelihood of persecution on his return. The justification for the previous policy no longer applies. It is safe for the person to be removed. It is only in exceptional cases that the previous policy has any application.45. Second it seems to me, as it did to the court in (S), the court’s intervention in Rashid was justified by a two stage approach. Firstly, in refusing ILR when he reconsidered the case, the Secretary of State failed to have regard to a legally relevant factor, namely the correction of injustice caused by the previous unlawful failure to apply the policy. Secondly, the “extreme” nature of the injustice in that case, meant that there was only one way in which the Secretary of State could reasonably have exercised his discretion. He was bound to grant ILR. I agree with the submissions of Mr. Jay QC on behalf of the Secretary of State in that regard.

46. Third, I do not accept Mr. Gill’s submission that it would be sufficient effectively to oblige the Secretary of State to apply the policy after it has been withdrawn where the failure to apply it during its currency was lawful; where, for example, there was historically administrative delay or (possibly very serious and widespread) administrative inefficiency which did not amount to unlawfulness in the way I have defined it. The whole basis of applications such as the present is a previous unlawful failure to apply the policy. I cannot see how a previous lawful failure to apply the policy can give rise to a subsequent intervention by the court on the basis that the policy having been withdrawn, the Secretary of State should have taken it into account and having done so, was bound to grant ILR. There can moreover be no question of intervention by the court on the basis of a generalised and unfocussed idea of fairness; or by consideration of what subsequently may have happened to the individual in question and categorised in broad terms such as prejudice, loss and detriment. In other words, I do not accept Mr. Gill’s submission that Carnwath LJ was wrong in this regard.’

[113]I accept also the analysis of that decision by Mitting J in R (Shah) v SSHD

[2013] EWHC 2206 (Admin)

, at paragraph 36:

‘the case of Rashid … has given rise to innumerable applications to the Administrative Court and much case law. It has been asserted that but for unwarranted delay, decisions more favourable to an individual would have been made so as to require the Secretary of State to make the more favourable decision which would have been made had the case been dealt with earlier. Since Rashid there have been a number of cases, notably S v SSHD [2007] … and S, H & Q [2009] in which the true principle has now come to be settled law. It can be summarised as follows, first the Secretary of State is entitled to apply policy applicable to as the date of decision under challenge. Secondly the court is concerned not with maladministration but only with illegality so that if maladministration produces a decision that is unlawful, that can be the subject of a successful challenge but not otherwise. Thirdly, there is no principle of administrative law that if the Secretary of State had made a decision earlier resulting in a more favourable outcome for an individual, then whatever the changed circumstances may be when the decision was actually made, that more favourable decision must be made …’

[114]In my judgment applying these principles to the present cases I can find no illegality for the purposes of this ‘correcting an historic injustice’ ground of challenge by reference to any administrative delay or any other maladministration demonstrated in any of these cases. And certainly it is quite impossible to say that in each case the ‘delay became unlawful’ on the 20th July, the date of the change in policy, as opposed say to the 26th July or any other date in July. At no point prior to the 20th July 2011 can it be said in my judgment there was an obligation to make a decision in any of these cases such that not to make it before that date was an unlawful omission on the part of the defendant.

[115]Even if one were looking at the lengths of the alleged delay on their own (which as explained, the court is not) none of the material delay capable of being complained of could be characterised as ‘unlawful’ by reference to the guidance given in FH. In Mr Geraldo’s case his decision was made on the 1st March 2012. At the outset such ‘delay’ (which is only a synonym for the passage of time) could run at best (leaving aside the issue of the relevance of the expiry of his residence permit in January 2011 or 2012) only from 19th October 2010 when his first representatives wrote to the CRD, a period of under 18 months, of which some 7 months fell after July 2011. In Mr Aroun’s case, after 10 years or so of no communication from him, further representations were sent dated 24th June 2009 which means there was a period of just under 3 years before the decision in his case was made on the 24 May 2012, of which some 10 months fell after July 2011. Mr Forshaw explained why the so called ‘tracing commitment’ referred to by the Chief Inspector had no relevance to his case (see above at paragraph 65). In Mr Iqbal’s case, he did not come forward but was arrested as an immigration offender (having absconded from bail) on 14 June 2010. The decision under challenge was made on 1 May 2012 giving rise at most to a period of just under two years between his coming to light and his receiving a decision, of which some 11 months fell after July 2011.

[116]The essential point however in this context is that whether or not the claimants are able to point to evidence of maladministration, even serious maladministration, in the defendant not dealing with their respective cases sooner than she did (although I make clear I have made no finding on this question) such maladministration simpliciter cannot give rise to an illegality in the decision when it was made, capable of founding the intervention of the court which is asked for in these cases. Administrative delay in making a decision may in certain circumstances lead to a court granting relief by way of an order requiring a decision to be made, but the relief being sought here is of a very different kind.

[117]There is accordingly in my judgment no established basis for the invoking of the Rashid jurisdiction based on either of the ways in which ground 1 is pursued. The likely outcome had the claimants cases been reviewed before 19 July 2011

[118]Given my findings on illegality or the absence of it, it is unnecessary for me to make any definitive findings on whether in each of the cases there would have been a positive application of the Chapter 53 factors, resulting therefore in the grant of ILR under the then Chapter 53 policy, had each case been decided before the change in policy, that is by the 19th July 2011. There are indicators which go each way in each case.

[119]Although each could lay claim to a significant period of residence falling within the 6-8 years indicated in the post August 2009 guidance had each been considered after that date (Geraldo had been in the UK for some 7 and a half years by October 2010; Mr Aroun had accumulated 6 years from 2000 onwards and Iqbal some 6 years from 2010), a holistic approach was called for. In the case of Mr Aroun there had been a period of some 10 years of non-compliance which I accept would have weighed heavily against him until he could show a period of compliance which may or may not have been considered sufficient had his case been considered before it ultimately was. Similarly in Mr Iqbal’s case, he had been an absconder from September 2008 and was on the evidence originally on the removal track (hence his arrest in 2010). He too would have needed to demonstrate a sufficient period of compliance to outweigh the factor of non compliance. The irony of these considerations, is that it was in the interests of at least two of the claimants, Mr Aroun and Mr Iqbal, that there was some delay in the consideration of their individual cases after they came to the attention of the defendant following a period of ‘going to ground’ in order to demonstrate a period of sustained compliance.

[120]I note also that the grounds of challenge now sought to be pursued speak only of the consequence of the defendant’s failure being that they were denied the ILR which they would probably or possibly have been granted had their cases been considered by 19 July.

[121]However notwithstanding the reservations of the defendant in particular through the evidence of Mr Forshaw, I am prepared to assume that the grant of ILR would have been the likely outcome had their cases been considered in say the months immediately before the 20th July 2011. Certainly, subject to considerations of time being needed to research the residence permit issue discussed above (see paragraphs 7-9 above), Mr Forshaw was prepared to concede such likelihood in the case of Mr Geraldo (although not in the other two cases).

[122]However this assumption must avail the claimants nothing, given my rulings on the absence of illegality. Ground 2: failure to grant the Claimants ILR … inconsistent with the very rationale of the legacy programme under which their cases were being considered

[123]As already explained this way of putting the challenge is no more than an attempt (for the first time) to assert that there was a discrete policy always to grant ILR to any ‘legacy individual’ for whom removal was not considered appropriate, that this policy existed from the outset of the legacy programme, and that there was in effect an undertaking not to change that policy, during the currency of the legacy programme.

[124]This basis of challenge was described by Mr Husain as ‘ambitious’ and rightly so. Its genus is the dispute as to whether there was a discrete policy to ‘conclude’ legacy cases by which was meant only removal or the grant of ILR. I have however already given my conclusions on this dispute which is adverse to the proposition contended for. See paragraphs 57 – 59 above.

[125]The essential fatal flaw in this ground of challenge however is that it ignores the clear evidence to which I have already referred, that the legacy programme did not have its own substantive policies, that there was to be no amnesty and that each case falling within its cohort would be determined by reference to current law and policy (as set by the asylum policy directorate on the instructions of Ministers) applicable across the UKBA. As I have already accepted, when the CRD granted ILR where there was a positive application of Chapter 53 EIG, it did so not because the case fell within the legacy arrangements but because it was applying the Chapter 53 in the same way as the rest of the UKBA.

[126]Moreover there has been no evidence or other material put before me to support the proposition that there was any undertaking given, whether peculiar to legacy cases or generally, not to alter the Chapter 53 guidance or policy or practice on the length of leave to be granted upon a successful application of Chapter 53. There was no evidence of any promise not to introduce a DL policy under Chapter 53 during the lifetime of the legacy programme.

[127]For all these reasons this head ground of challenge must fail. Ground 3: the challenge to the change in policy of 20 July 2011

[128]As I have already indicated I decline to permit the claimants at this very late stage well out of time to pursue this ground of challenge, and when in opening counsel disavowed any challenge to the DL policy itself. This ground allegedly flowed from the evidence given by Mr Parkin but in truth it was always known by the claimants well before the hearings before me that the Secretary of State through Mr Sedgwick had given inaccurate information to Parliament (the HASC) that all cases within the legacy cohort had been reviewed before the 20th July 2011 and had duly apologised to Parliament. The Chief Inspector’s report for the quarter ending July 2012 and the ILPA’s own evidence to Parliament of July 2012 (see paragraph 61-63 above) were available sources of these facts. I agree with Miss Anderson that to allow the claimants to seek now to strike down a policy of general application would be contrary to the good administration of justice. I have in mind the strictures given by the Court of Appeal in AA (Afghanistan)

[2007] EWCA Civ 12

at para 57. As she submitted, the reasons underpinning the requirement to bring judicial challenges promptly are of particular importance where it is proposed to strike down a policy that is in force, to avoid generation of legal uncertainty and prevent the disruption of UK immigration law and practice.

[129]Moreover the proposed ground turns upon the alleged existence of ‘vast’ numbers of legacy cases which were unreviewed which the policy maker failed to take into account, when on the limited evidence available to the court on this issue there can be no confidence in the accuracy of such an assertion. Again see above at paragraphs 61-63. There is in truth an absence of the requisite cogent evidence that a ‘vast’ numbers of cases were not reviewed. Further again as Miss Anderson submitted if the point now sought to be taken did properly arise from the evidence of Mr Parkin then it should have been raised fairly before evidence was closed so that there was a fair opportunity for the defendant to consider and respond to it.

[130]I am also bound to record that the evidence of Mr Parkin which I have already rehearsed in some detail on the way the change in policy was formulated including the exceptions, did not on its face suggest that he had gone about his task irrationally or unlawfully. Further he gave evidence in paragraph 19 of his witness statement (set out above at para 75) that he had followed developments to ensure the policy remained appropriate, which was not in itself challenged under cross examination. Final conclusions

[131]For all these reason these claims must fail. I should add that in so ruling I do not accept that the claimants have thereby been the subject of any real injustice. As I have stated at the outset this is not a case where leave has been denied. The claimants have each been granted limited leave to remain outside the rules which has the potential of being both extended and ultimately transformed into settlement.

Cited in 25 later judgments

and 16 more of the most senior