Scott, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 565 (Admin)

Case No CO/8757/2012[2013] EWHC 565 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Venue Manchester Civil Justice Centre
1 Bridge Street West
Venue ManchesterDate Friday 1 st February 2013
M60 9DJ
Before
HIS HONOUR JUDGE RAYNOR QCsitting as a judge of the High Court
Between
the queen on the application of Nyirenda - ScottClaimantSecretary of StateDefendantfor the Home DepartmentDefendant
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr Nicholson (instructed by the Greater Manchester Immigration Aid Unit) appeared for Claimant.Mr Hunter (instructed by the Treasury Solicitor) appeared for Defendant.
Judgment

HHJ Raynor QC:

[1]This is a claim for judicial review of decisions that were said to have been made on the 20 December 2011, 2 April 2012, 29 May 2012 and 22 June 2012 when, having initially in the first letter granted the claimant discretionary leave to remain in the United Kingdom outside of the Immigration Rules for a period of three years, the defendant, by the later letters, effectively confirmed that decision and refused to reconsider the matter. It is important to note, for the purpose of the present judgment, that there is no claim made in this application for judicial review in respect of any decision earlier than of 20 December 2011.[2]I can state the history, so far as material, quite succinctly from the chronology in the factual background, which was non-contentious, prepared by Mr Hunter, counsel for the defendant.[3]The claimant is a 37-year-old Zimbabwean national who entered the United Kingdom in 1998 on a six-month visa. His wife came to the UK in 2001. They entered into a customary marriage two years later and they now have a five-year-old daughter. Both the claimant and his wife are HIV-positive.[4]After his visa expired the claimant remained in the United Kingdom unlawfully. In December 2005 he applied for limited leave to remain on the basis of the 2005 HIV diagnosis and other medical conditions. That application was refused. The claimant appealed, and the appeal was dismissed in December 2007.[5]On 2 April 2009, for the first time, the claimant applied for asylum. That asylum claim was refused on 29 September 2009. The claimant appealed. That appeal was dismissed on 9 December 2009 by Immigration Judge Haynes. The claimant then made further submissions on 12 November 2010, and those submissions were refused by letter dated 3 December 2010. In the light of the way that the case is now put by Mr Nicholson, counsel for the claimant, it is necessary for me to refer to that letter of 3 December 2010 even though there was no complaint made of it in these judicial review proceedings.[6]That letter began by stating that:
"...you have asked for representations to be considered as a fresh application for asylum and human rights. Your further submissions have been considered but it is considered that you do not qualify for either asylum or Humanitarian Protection ... [nor] for limited leave to enter or remain...in accordance with the published...Asylum Policy Instruction on Discretionary Leave."
The letter then goes on to say that:
"Since your further submissions have not resulted in a grant of leave, further submissions have been considered under paragraph 353 of the Immigration Rules..."
That is then cited and, in effect, it is stated that there is no fresh claim made out.[7]Thereafter there is consideration of compassionate circumstances in Section 3 of the decision letter. Paragraph 395C of the Immigration Rules is quoted in full and it is stated that: "The Secretary of State has considered all the relevant factors, and is content that your removal remains appropriate.”[8]One of the relevant factors, and indeed the only one that was relied on for this purpose by Mr Nicholson, is that stated in subrule (2), “length of residence in the United Kingdom”, and at the date of this decision letter the claimant had been resident in the United Kingdom for something in the region of 12 years or thereabouts and his wife also for a substantial period of time. His daughter, of course, had been born here.[9]There was no form of appeal or application for judicial review in respect of the refusal either of the asylum or humanitarian claims or indeed the refusal to grant discretionary leave outside the Immigration Rules. What then happened was that, on 25 August 2011, the claimant's then legal advisers chose to make what they themselves termed, by letter of 25 August 2011, a fresh claim. That letter stated:
"We request that you consider these representations and evidence as a fresh claim for asylum for Mr Nyirenda-Scott and his family. In the alternative we request that you consider Humanitarian Protection or protection under the European Convention on Human Rights and lastly in the alternative we request that you consider Discretionary Leave to Remain in the UK."
[10]There was then set out the basis of the asserted fresh claim for asylum. There was reference to the refusal of the previous claim for asylum and then, at the very end of the letter, there were set out the factors which were said to warrant the grant of leave to remain, bearing in mind the current country guidance cases. There was a long recital of facts, facts that go back from the early years of the claimant’s time in the UK up to the time of the letter of 25 August including, on page 53 of the bundle, on the pre-penultimate page of the letter, references to the claimant's daughter's achievement certificates, achievements in the United Kingdom as a family, clearly displaying good character, and letters from family and friends dated May 2011 and June 2011. It is then stated:
“The following factors warrant a grant of leave to remain, bearing in mind the current country guidance case:”
There is reference (among other things) to length of continuous residence, integration achievements, daughter's achievements in the United Kingdom, the possibilities that a five-year-old child might be faced with upon return, and extreme health conditions.[11]The letter had previously asserted that, at least in relation to the fresh claim for asylum, the claimant must show “...there is new material, which is significantly different to that previously considered." It is perfectly plain that in this letter the claimant was putting forward a whole raft of evidence, some of which was the same as that previously considered in 2010 and some of which was different and post-dated that date.[12]By letter dated 20 December 2011 the defendant responded. That letter was deficient as regards the statement of reasoning. It ignored the fresh claim for asylum, but granted the alternative remedy sought of discretionary leave to remain (but for the period of three years). I accept the submission of Mr Hunter that inferentially it must be taken that the defendant had rejected the fresh claim because what was granted was discretionary leave to remain outside of the Rules.[13]That letter was followed by request for a reconsideration, as I have said, and a request for the giving of reasons why three years’ discretionary leave rather than indefinite leave to remain had been granted. No, or no adequate, reasons for that decision emerged in correspondence. What is perfectly plain, however, is that the defendant's policy in force at the date of the letter of 25 August 2011 was quite clear as to what should happen as at that date if there was a claim for leave to remain on the grounds of the extenuating circumstances referred to in chapter 53 of the relevant guidance, which is that dated August 2009. The guidance at that date is quite clear in paragraph 53.1.1 that: “Where, as a result of considering the factors set out in 53.1.2, (the relevant factors set in Paragraph 395C of the Immigration Rules) removal is not considered appropriate, a maximum of 3 years Discretionary Leave (DL) should be granted”, which is indeed what was done here.[14]The short submissions Mr Nicholson has made on behalf of the claimant in this case are quite different to the submissions which were made in the judicial review claim form originally. There the grounds were failure to consider at all the length of residence in the United Kingdom of the claimant and his child especially; second, failure to consider the practice and policies of legacy; thirdly, failure to consider compassionate circumstances, that being of course an express consideration in Rule 395C; and fourth, the failure of reasoning. Mr Nicholson did not pursue any of those grounds before me today, but put his case on a different ground, to which no procedural objection was taken by Mr Hunter. Mr Hunter has been able to respond to the new ground and I have been able to consider it.[15]That additional ground is based upon what is stated in the defendant's policy as regards discretionary leave, which is the document which is at tab 3 of the hearing bundle. Under the heading “Duration of grants of Discretionary Leave”, in paragraph 5.2 headed “Exceptional circumstances” it is stated that :
"Where removal is no longer considered appropriate following consideration of the exceptional factors set out in Paragraph 353B of the Immigration Rules and guidance in chapter 53 of the EIG, 30 months DL should be granted, unless one of the following situations applies: The situation which is said to apply is the second bullet point, which is: "
Where the UK Border Agency made 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 that leave should have been granted. Where the above applies and the relevant date was before 20 July 2011 – [indefinite leave to remain] outside the Rules should be granted. This is because prior to 20 July 2011 ILR was granted to cases which met the exceptional circumstances in chapter 53..."[16]What Mr Nicholson submits is that this present case falls squarely within the second bullet point. The UK Border Agency made a decision before 20 July 2011, namely on the 3 December 2010, that a grant of leave on the grounds then listed in chapter 53 was not appropriate; after that date it carried out a reconsideration, he says, of that decision, namely in December 2011; and, he submits, on the basis of the same evidence, decided that the earlier decision was wrong. On that basis he says that ILR should have been granted.[17]Mr Hunter for the defendant says that the second bullet point conditions clearly do not apply. Although there was a decision prior to the 20 July 2011 that a grant of leave on the grounds then listed was not appropriate, there was in fact no reconsideration of that decision thereafter, no reconsideration either at all or on the basis of the same evidence, and no decision that the earlier decision was wrong.[18]He points out that what was made in August 2011 was expressly a fresh claim with fresh evidence said to be significantly different to that submitted previously, although admittedly some of the matters were common, such as the length of residence of the claimant in the United Kingdom; that on the basis of the fresh evidence there was a fresh decision, not a reconsideration, made on the basis of then current policy, and no decision that an earlier decision had been wrong.[19]Mr Nicholson replies that that is an over-literal and unjust reading of the provisions of the discretionary leave document and that there is here a historic injustice, because it is plain, he says, that the earlier decision on 3 December 2010 was wrong, and that there has been an historical injustice, and the court should act so as to cure the injustice in the way that Mr Stephen Morris QC mentioned in paragraph 122 of his judgment in the case of R(Mohammed) v SSHD [2012] EWHC 3091 (Admin).[20]In my judgment the provisions of paragraph 5.2 must be narrowly construed. Those provisions refer to a situation when the defendant has reconsidered a decision made earlier on the same evidence and has decided that that decision was wrong. In those circumstances, it is plainly right that the claimant should be in precisely the same position as if the correct decision had been made historically.[21]I do not say, and I am not going to adjudicate upon, whether the earlier decision was wrong. The fact of the matter is that there was no challenge to that decision at the time. What I am clear about, however, is that the second bullet point does not apply. True it is that there was a decision before 20 July 2011 that the grant of leave was not appropriate, but in my judgment there was no reconsideration of that decision in December 2011. There was consideration of a fresh claim for asylum and humanitarian protection or, alternatively, for the grant of discretionary leave to remain made on the basis of the evidence submitted in the document of 25 August 2011, which had to be considered as a whole. There was a decision made then in December 2011 that the extenuating circumstances referred to in Chapter 53 were made out on the basis of that evidence and there was a fresh decision made that a grant of discretionary leave to remain outside of the Rules should be made on the basis of the policy that applied at that time. I reject the claim based upon the construction that Mr Nicholson has put forward of paragraph 5.2 of the policy document. That being the only basis on which this claim is now pursued, I dismiss it. MR HUNTER : Thank you, my Lord. There is an application for costs but, as the claimant is legally aided, that will be subject to the normal restriction. I think I am going to have to amend the figures because I have estimated slightly longer for the hearing. JUDGE RAYNOR QC : Well I am not going to fix an amount because that is not the appropriate course. The appropriate course, subject to what Mr Nicholson says, is to make an order that there be an assessment of the costs that it is reasonable for the claimant to pay under the Access to Justice Act and that there be an adjournment generally of the assessment process with permission to the defendant to apply to reinstate, which I imagine will never happen. There must also be an order for detailed assessment of the claimant's costs for public funding purposes. MR HUNTER : My Lord, I am grateful. JUDGE RAYNOR QC : Anything else? MR HUNTER : No, my Lord, thank you. JUDGE RAYNOR QC : Let me say, Mr Nicholson, and I do not mean this in anyway disparagingly, it was an ingenious argument that was extremely succinctly and clearly put. MR NICHOLSON: My Lord, I am grateful. JUDGE RAYNOR QC : Thank you.