Kumar, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 3794 (Admin)

Case No CO/1868/2013[2013] EWHC 3794 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 4 December 2013
Before
PHILIP MOTT QCSitting as a Deputy High Court Judge
Between
THE QUEENClaimant(on the application of TARSEM KUMAR)ClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Amanda Jones (instructed by Bhogal Partners) for ClaimantJulie Anderson (instructed by Treasury Solicitor) for DefendantHearing Hearing dates: 7 November 2013
JudgmentPhilip Mott QC :
[1]Tarsem Kumar was born on 1 December 1970. He is now aged 43. He is a national of India. On 3 June 1998, according to him, he entered the UK illegally. Over three years later, on 12 October 2001, he claimed asylum. Whilst that was being processed, on 8 February 2002, he made an application for leave to enter or remain as the spouse of a person present and settled in the UK. That was refused on 5 April 2002. There has been no mention of any spouse since that time.[2]On 29 July 2003 his asylum claim was rejected. He appealed, but his appeal was dismissed in a decision promulgated on 25 November 2003. He became appeal rights exhausted on 7 December 2003.[3]On 1 December 2003 his solicitors wrote to the Defendant indicating that he wished to depart from the UK voluntarily and requested the return of his passport and other documents. It took until 26 April 2007 for the Defendant to reply, stating that it was Home Office policy not to return travel documents where a person is subject to enforcement action.[4]In May 2007 he was given notice to report, and a copy was faxed to his solicitors. He did not report, and a warning notice was issued in August 2007. In September 2007 he was notified as an absconder. In October 2008, however, a further notice to report was sent to him at a different address. Whatever the correct interpretation of this paperwork, it cannot be said that the Defendant was doing anything to encourage the Claimant to stay in the UK.[5]On 29 July 2010 different solicitors wrote on the Claimant’s behalf. They suggested that he had claimed asylum “shortly after arrival” and that his was an unresolved asylum case. They put forward a claim based on his right to family and private life under Article 8. Much of this was rather unspecific, but in practice it amounted to a claim to private, rather than family, life.[6]The Defendant’s response, in an undated letter received on 25 November 2010, was that the asylum application had been refused and an appeal rejected, so that the Claimant had no outstanding applications and no legal right to remain in the UK. The Claimant’s solicitors replied on 27 November 2010 asking for his case to be considered under the Legacy Casework Programme.[7]The reply from the Defendant, on 14 December 2010, said “I can advise you that it has been decided that the representations made on behalf of your client are considered to be exceptional and justify considering your case out of turn. The file is now with a caseworker for consideration. You will be notified of our decision in due course”. At the same time, the letter enclosed a Voluntary Departure leaflet “which explains how your client can obtain help and advice on returning home”.[8]It is difficult to see why this case should have been considered to be exceptional. It was suggested on the Claimant’s behalf in argument that it might indicate that it was likely to be successful. I find that difficult to accept, both when the facts are compared to others which I have seen in numerous challenges to this court, and because of the reference to voluntary return to India. All that can safely be said is that the promise was made to deal with the case out of turn.[9]No decision had been made by 20 March 2012, when the same solicitors wrote a pre-action protocol letter to the Defendant. The response came on 3 April 2012 from the Case Assurance and Audit Unit in Liverpool (the unit which had by then taken over the task of processing Legacy claims). It apologised for the case not having been treated as a priority, and said “We will aim to review your client’s case within one month of the date of this letter”.[10]In the end the decision was dated 7 December 2012, and appears not to have been served on the Claimant until somewhat later, perhaps with Removal Directions on 2 February 2013. The letter rejects the Article 8 claim on the application of Rule 276ADE of the Immigration Rules, and also considers the Claimant’s position under Paragraph 353B of the Immigration Rules but concludes that nothing warrants a grant of leave.[11]This decision is challenged in these proceedings by virtue of permission granted by Ben Emmerson QC, sitting as a Deputy High Court Judge, on 8 May 2013. He also ordered an expedited hearing.[12]The Claimant put forward three Grounds, as follows: i) The decision of 7 December 2012 was irrational and unfair. ii) The decision-maker failed to consider whether the submissions amounted to a fresh claim, under Paragraph 353 of the Immigration Rules. iii) The Removal Directions were illegal.[13]By the time of the hearing before me only the first Ground remained. The Removal Directions had been cancelled, and the Defendant has agreed to reconsider the matters considered in the letter of 7 December 2012, together with any further submissions.[14]The first Ground has also developed, especially in the light of the decision of King J in Geraldo & Others v SSHD [2013] EWHC 2703 (Admin). I shall return to consider that authority, but in essence Miss Jones for the Claimant accepts that there were no discrete Legacy policies, and that the correct rules were applied in the December 2012 decision letter. She submits that the decision may have been reasonable when judged simply against those rules, but that it was irrational not at least to consider exercising the discretion to grant leave outside those rules, in view of the two very clear promises made in December 2010 and April 2012. She also accepted that, in order to succeed, the delay must not merely be unfortunate, nor even evidence of maladministration, but must be so unreasonable as to amount to administrative illegality, as explained in Geraldo. In essence, the complaint is that the rules changed whilst the Claimant was waiting for a decision, and the new rules are less favourable to the Claimant. She acknowledged frankly that she was unaware of any case in which a Claimant has succeeded in the argument that he would have been granted leave to remain if his case has been decided promptly and properly.[15]I must now turn to Geraldo. It was a series of three claims by failed asylum seekers who had been granted 3 years Discretionary Leave to Remain. Each claimed that under the previous guidance they would have received Indefinite Leave to Remain, and the only reason for their failure to receive that was inordinate delay by the Defendant. The hearing lasted 5 days, and evidence was heard. The Claimants based their challenge on “historic injustice” in failing to make decisions earlier, and in failing to correct that historic injustice when making the decisions which were made. King J reviewed the authorities, and it is not necessary for me to do so again. The conclusions were not in dispute before me, and can most succinctly be distilled in the words of Mitting J in Shah v SSHD [2013] EWHC 2206 (Admin):
“… first, the Secretary of State is entitled to apply policy applicable as at 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 …”
[16]I have set out the chronology above. The delays by the Defendant are unfortunate, but sadly by no means unusual in such cases. Here there were two specific promises, the first in December 2010 to consider the Claimant’s case out of turn, the second in April 2012 to aim to review the case within one month. Neither of those promises was fulfilled. Instead there was a combined delay of almost two years before a decision was made. If the Claimant had been held in detention, this delay might very likely have been so unreasonable as to be unlawful. But the delay in fact allowed the Claimant to remain in the UK, and can only have strengthened his Article 8 claim. It is significant in my judgment that the Claimant does not assert that either promise caused him to act in any different way in reliance on it, nor that he has suffered any specific prejudice, save that his decision has been made on a less benign basis.[17]There have been many cases in which delays of this length, for Claimants at large in the community, have been found not to be unlawful. Each case depends on its particular facts, and there is no bright line yardstick of delay. In my judgment in this case neither the overall delay, nor the broken promises, are sufficient to convert maladministration into illegality.[18]For these reasons I conclude that the Claimant’s challenge on Ground 1 fails. The remaining challenges are now academic for the reasons already explained.[19]I shall leave the parties to agree the appropriate order as far as they can. Any submissions on the form of order, or on costs, should be filed and served on the other party in writing within 28 days of this judgment being handed down. I will decide them on paper unless an oral hearing is requested by either party, in which case that party will be at risk on the costs of that hearing.