Lavang, R (On the Application Of) v The Secretary of State for the Home Department [2014] EWHC 3473 (Admin)

[2014] EWHC 3473 (Admin)Case No CO/13574/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/10/2014
Before
AMANDA YIP QCSITTING AS A JUDGE OF THE HIGH COURT
Between
The Queen on the application ofClaimantABDUL SHOKOR LAVANGClaimantTHE SECRETARY OF STATE FOR THEDefendantHOME DEPARTMENTDefendant
Mr Paul Turner (instructed by BHD Solicitors) for ClaimantMs Jacqueline Lean (instructed by The Treasury Solicitor) for DefendantHearing Hearing dates: 16 October 2014
JudgmentAmanda Yip QC :
[1]The Claimant is an Afghan national who has been in the United Kingdom since 2002. Having unsuccessfully claimed asylum, he was granted discretionary leave to remain (“DLR”) in 2008. On 17th May 2011, he made an application to extend his leave, asking that it be considered “in line with the government’s legacy policy”. That application was determined on 8th March 2012 with the grant of DLR for a further period of 3 years. By this application for judicial review, the Claimant claims that this was wrong and that he should instead have been granted indefinite leave to remain (“ILR”). He seeks a mandatory order compelling the Defendant to grant ILR or, in the alternative, an order quashing the Defendant’s decision and requiring her to reconsider the grant of ILR.

Procedural history

[2]A letter of claim was sent on 2nd May 2012 challenging “the ongoing failure to grant our client Indefinite Leave to Remain in the United Kingdom”. The Defendant responded on 21st May 2012. On 8th December 2012, the Claimant’s solicitors sent a further letter of claim relying on additional matters including the Report of John Vine, Independent Chief Inspect of Borders and Immigration (published after the initial letter of claim was sent). The second letter of claim referred to a legitimate expectation that “legacy cases” would be concluded before a change in policy in July 2011. The Claimant’s position was that had that happened, he would have been granted ILR rather than DLR as was the position under the later policy.[3]Proceedings were issued on 14th December 2012. The decision challenged was said to be “The Defendant’s failure properly to conclude the Claimant’s case under the legacy, and thereby to grant Indefinite Leave to Remain.” Permission to proceed with the claim was granted on 13th August 2013 by John Bowers QC, sitting as a Deputy High Court Judge, following a renewed application. The Claimant was not given permission to rely on grounds relating to legitimate expectation. Further, the Defendant’s right to argue the “time” point was reserved to the substantive hearing, it having been noted when permission was considered on the papers that the challenge appeared to apply to decisions of July 2008 and March 2012 and so was well out of time. In the event, I note that the Defendant did not argue delay particularly vigorously before me.[4]Following the grant of permission, the Claimant’s case changed shape somewhat, although I accept that it remained within the scope of the permission granted. This court has considered the so called legacy programme and cases arising out of it on a number of occasions. In particular, in R (Geraldo & others) v Secretary of State for the Home Department [2013] EWHC 2763 (Admin), Mr Justice King heard evidence about the scheme when considering applications for mandatory orders requiring ILR to be granted in place of DLR for claimants whose cases had been dealt with after the change in policy. His detailed judgment was handed down shortly after the granting of permission in this case. Mr Turner appearing for the Claimant indicated that he did not seek to go behind the decision in Geraldo or indeed other legacy cases decided since. The Claimant’s case therefore narrowed and is as set out in a skeleton argument dated 10th October 2014.

The Claimant’s case as advanced

[5]The Claimant’s case in essence is that the Defendant failed to have regard to her own policies. It is said that the Claimant came within the legacy scheme in late 2010 / early 2011. Had he been dealt with in accordance with the policy then existing he ought to have been granted ILR by no later than February 2011. Having erroneously not granted ILR at that time, the Defendant had the opportunity to correct the mistake when granting him further leave to remain on 8th March 2012. The policy then existing required her to recognise that the earlier decision was wrong and accordingly to grant leave on the basis it would have been granted in February 2011. That being before the policy change, the Claimant would have been granted ILR.[6]Put this way, Mr Turner says that this is a narrow fact-specific challenge and that it does not seek to go behind the lawfulness of the policies or to set any wider precedent.

The facts

[7]The Claimant first entered the United Kingdom in April 2002 and claimed asylum on the day of his arrival. In August 2004, he was notified that his application for asylum was refused. He unsuccessfully appealed that decision. Having remained in the country, he entered into a relationship with an EEA national. He made a fresh claim for leave to remain in 2005. After pursuing various appeals and further applications, he successfully established on appeal in 2008 that requiring him to return to Afghanistan would be a disproportionate interference with his Article 8 rights. Thereafter, on 4th December 2008, he was granted DLR until 18th May 2011.[8]The background to the legacy programme is summarised in the judgment of King J in Geraldo at paragraphs 39 to 49 and it is not necessary for me to repeat that here.[9]The unit set up to deal with the legacy programme was the Casework Resolution Directorate (“CRD”). In 2010, the CRD received the Claimant’s file. An entry on 13th August 2010 noted “Phone number dead”. A letter was sent out on that date noting that the Claimant’s case was in “the backlog of older asylum applications”; explaining the legacy programme and asking for further information. There was no reply (I suspect the Claimant did not receive the letter). When the case was looked at again on 28th October 2010, the file was identified as one to potentially go into the controlled archive. That archive was used to deal with cases that could not otherwise be cleared up, such as those in which the person concerned could no longer be traced. Although it involves some degree of speculation, what seems to have happened is that two files existed in relation to the Claimant. The second one contained details of the grant of DLR in 2008 but this had not been consolidated with the original file. I note from evidence previously presented before the courts that may not have been uncommon. Part of the work of the CRD involved “cleansing” and consolidating records and filtering out any duplicate files.[10]The CRD plainly did go on to identify that the Claimant had in fact been granted DLR. On 22nd February 2011, his records were noted:
“This case has been reviewed. Applicant has valid leave until May 2011. Outcome: not removable by CRD.”
Outcome: not removable by CRD.”[11]My interpretation of this is that, having reviewed the Claimant’s records, the CRD caseworker decided that no further action was required at that time. There was no question of the Claimant being removed as he had extant leave to remain. There is no evidence to suggest that any consideration was given to the nature of the Claimant’s leave or whether it would be appropriate to grant him any different form of leave to remain.[12]On 17th May 2011, just as his DLR was due to expire, the Claimant sent the application to which I have already referred seeking an extension of his leave to stay and asking that it be considered within the legacy policy. This suggests to me that he was unaware that his file had previously been reviewed by the CRD.[13]Delays in the processing of applications have been well documented in other reported cases. As King J noted in Geraldo at paragraph 46, it was inevitable that the programme and the size of the backlog would lead to further delays. Challenges based on delay alone have previously failed and the Claimant does not pursue a complaint in this action about the time taken to process his May 2011 application.[14]A decision in relation to his application was in fact taken on 8th March 2012. By then, the Case Assurance and Audit Unit (“CAAU”) had succeeded the CRD and the Claimant’s application was considered by the CAAU. The Claimant was given DLR until 7th March 2015.

The relevant policies

[15]When the CRD looked at cases under the legacy programme, they would not necessarily be looking at an application or fresh claim. In some cases, there would be no application or submissions to consider. However, as King J put it at paragraph 48 of Geraldo:
“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.”
When undertaking that task the CRD would use the ordinary criteria for deciding whether there was any reason not to remove the individual.[16]As has clearly been established in previous cases, including Hakemi (& others) v SSHD [2012] EWHC 1967 (Admin) and Geraldo, the legacy programme was an operational one only. It did not create any amnesty nor give rise to any new substantive rights. Cases handled within the programme were to be considered having regard to the prevailing law and policy which applied to all other immigration and asylum cases.[17]Where an individual has entered the country illegally and is not entitled to leave to remain under the Immigration Rules, their case is considered outside the Rules and the policy in Chapter 53 of the Enforcement Instructions and Guidance (“EIG”) applies. At all relevant times, the policy in Chapter 53 has been that those who have entered unlawfully will be removed unless there are particular reasons not to do so.[18]Before February 2012, Chapter 53 directed attention towards paragraph 395C of the Immigration Rules. The factors to be considered before a decision was taken to remove an individual were the same as those set out in paragraph 395C.[19]If after having regard to Chapter 53, it was decided that an individual could not be removed, the practice prior to 20th July 2011 was almost invariably to grant ILR. The guidance did not in fact specify the period of leave which could or should be granted but it was accepted by the Secretary of State in Geraldo that this was the practice (see paragraph 55 of the judgment of King J). I have also seen a letter dated 15th January 2010 from Suzanne Farrell, Chief of Staff to Emily Miles of the CRD confirming that grants made by the CRD under 395C “are all grants of Indefinite Leave to Remain”.[20]There was a change in policy which took place with effect from 20th July 2011. New guidance was then introduced which made it clear that where removal was no longer considered appropriate following consideration of the paragraph 395C factors that DLR of 3 years should be granted.[21]When that change was made, it was recognised that there would be some limited exceptions where ILR should continue to be granted. The first (not applicable here) is where there had been a written commitment that the case would be considered before 20th July 2011.[22]The second exception is relied upon by the Claimant and applied where the UK Border Agency had made an erroneous adverse decision before 20th July 2011 which was then reviewed on the same evidence after that date. In effect, the erroneous decision was being corrected so ILR was to be granted as it would have been if the original decision had been correctly made.[23]This exception lies at the heart of the Claimant’s case. The policy was further amended in 2012 when paragraph 395C was withdrawn and reference to it in Chapter 53 was replaced by reference to paragraph 353B of the Immigration Rules. The period for which DLR was to be granted was also reduced in 2012 from 3 years to 30 months. Those amendments resulted in an amended version of the DL policy dated 9th July 2012. As was the case in Geraldo, this was the version placed before me rather than the one actually in force at the relevant time. That is perhaps unfortunate given that interpretation of the exception is crucial to this case. However, there was no dispute between the parties that the substance and effect of the exception was unchanged by the amendments to the guidance.[24]Therefore, taking the wording from the amended version, the relevant provisions were: “Where removal is no longer considered appropriate following consideration of the exceptional factors set out in Paragraph [395C] of the Immigration Rules and the guidance in Chapter 53 of the EIG, [3 years] DL should be granted, unless one of the following situations applies: [not included] Where the UK Border Agency made a decision … before 20 July 2011 … that a grant of leave on the grounds 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. Where the above applies … 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 in Chapter 53 of the EIG.” [not included]

Legal framework

[25]As I have indicated, the Claimant’s case narrowed significantly from that initially set out in his grounds for seeking judicial review. In the event, there was little dispute about the legal principles to be applied.[26]It is uncontroversial to note that the Secretary of State is ordinarily obliged to act in accordance with her declared policy and that it is incumbent on her to explain why if she departs from it (R v Secretary of State for Home Department ex p. Gangadeen [1998] Imm AR 106). As it was put in R (Lichfield Securities Ltd) v Litchfield District Council [2001] 3 PLR 33 a public body is obliged to have regard to established policy since that is what policies are for.[27]It is also clear that if a decision is taken after a policy has been withdrawn that policy does not apply. The lawfulness of a decision is to be assessed according to the law, policy and facts existing at the time the decision is taken (Ravichandran v SSHD [1996] ImmAR 97).[28]Mr Turner’s skeleton argument contained some focus on the line of authorities beginning with R (Rashid) v SSHD [2005] EWCA Civ 744, in particular with reference to R (S) v SSHD [2007] EWCA Civ 546. Mr Turner relied upon this line of authorities to contend that "historic injustice" flowing from the mishandling of the Claimant's case in late 2010 or early 2011 ought to have been corrected by the Defendant granting ILR when the decision was made in March 2012. Where there is in effect only one way the Secretary of State could exercise her discretion to provide a remedy for the unfairness caused by past illegality, the Court's power to order reconsideration can include a mandatory order that ILR should be granted.[29]The Claimant's primary case as argued before me was that the requirement to correct a “historic injustice” stemmed from the Defendant's own policy on the grant of DLR after 20th July 2011 and, in particular, the exception provided for the correction of erroneous adverse decisions made before that date. Therefore, when considering the lawfulness of the decision to grant DLR rather than ILR on 8th March 2012, it was really the terms of the policy itself that were relied upon by the Claimant.[30]It is important to remember that the Claimant cannot and is not directly challenging the original decision made on 22nd February 2011. Any such challenge would have been very substantially out of time. His challenge does though require him to establish that there was an error made at that time. He must go on to show that the Defendant ought to have corrected that error either a) because the situation fell within the exception in the policy or b) following Rashid.[31]Mr Turner did not really develop the Rashid line of argument before me. The difficulty the Claimant faces in arguing this point is the need to show illegality in the earlier decision going beyond a mere mistake. It may be that Mr Turner recognised this difficulty in presenting his submissions as he did. Rather than identifying illegality in the sense required by Rashid and the subsequent authorities, Mr Turner's firm position was that it was not necessary to go that far since this was simply a case of the Defendant failing to have regard to a policy that applied to him and that specifically required correction of an earlier mistake.[32]Put simply, Mr Turner says that the Claimant’s case falls squarely within the second exception. His case was mishandled in late 2010 / early 2011. The Claimant contends that at that time, his file having been reviewed by the CRD, they should in February 2011 have granted him ILR rather than simply record that he had DLR until May 2011. Having made an erroneous decision then, when his further application for leave was considered in March 2012, the Defendant should have appreciated that the earlier decision was wrong and so should have granted ILR on the basis of the exception set out above.

The earlier decision(s)

[33]There is some lack of clarity in the Claimant’s case as to exactly what is alleged in relation to the action taken up to and including February 2011. In the skeleton argument, Mr Turner asserted that the case was not properly reviewed in October 2010 (see paragraph 40) and contended that a proper review then or prior to 20th July 2011 should have led to a grant of ILR (see paragraphs 28 and 32).[34]In oral argument, Mr Turner submitted that the case was reviewed on 22nd February 2011 and that the decision on review was a decision not to do anything. This, he said, was a departure from the Defendant's own guidance. He argued that once a caseworker at the CRD had actively seized the Claimant's file they had to review it in accordance with the policy then existing.[35]There is no suggestion within the Defendant's records or elsewhere that the CRD considered Chapter 53 and made a positive decision not to grant ILR at that time. There was no question of a decision to remove being made then as the Claimant had existing DLR.[36]In order to establish that the course taken by the Defendant in February 2011 was wrong, the Claimant relies upon a statement dated 3rd May 2007 made by Emily Miles, Director of the Case Resolution Directorate, Border and Immigration Agency in relation to other proceedings then before the Administrative Court. At paragraph 3, she described incomplete asylum cases as cases not being processed as part of the new asylum model on 1 April 2007 and which have not been concluded (removed, granted, or otherwise closed). It was acknowledged that some of those in the backlog would include applicants who had submitted further applications or submissions. At paragraph 35 of her statement, she said:
“We are adopting a further approach of end-to-end casework which will mean that cases, once drawn, will be processed through to conclusion even if it transpires, when the actual facts of the case are considered that they did not fall within the priority category in which they originally appeared to be. This is because returning such cases to the unprocessed backlog, from which they will have to be re-drawn at some stage in the future, wastes overall resources and delays the final resolution of the entire backlog. Each case will have a dedicated caseowner.”
[37]The Claimant also relies upon notes from a meeting of the CAAU partner Forum on 13th September 2012, when Neil Forshaw of UKBA explained that the practice of the CRD had been to consider paragraph 395C before considering other asylum, humanitarian protection or discretionary leave under Article 8. The short minutes appear to acknowledge that when ILR was being granted under 395C that provided a better outcome for the applicant than leave granted on other grounds.[38]The Claimant relies on these pieces of evidence to suggest that the Defendant's policy required the caseworker, having identified that the Claimant had DLR, to go on to consider at that time whether ILR should be granted and not to metaphorically "put the file back on the shelf".[39]The difficulty with the Claimant's argument is that it has been established in previous cases that the legacy programme did not create any freestanding rights or new basis for granting leave. The notion that there was generally a commitment to conclude cases in the legacy programme either by the grant of ILR or by removal was also rejected in Geraldo.[40]The evidence relied on by the Claimant does not go as far as supporting a policy that, upon considering any file in which there was extant leave, the CRD should go on to consider whether there was a basis for the grant of leave on a more favourable basis. This is particularly so when the evidence considered by King J at paragraph 8 of Geraldo is also put into the balance, that being that a case would not normally fall for review under the legacy programme whilst there was extant leave to remain.[41]The Claimant also made reference to the report “An Inspection of the UK Border Agency’s handling of legacy asylum and migration cases” by John Vine ("the Vine Report"). Paragraph 7.24 was headed “Non-cohort cases” and referred to cases which met the legacy criteria but were not part of the original CRD cohort and included active review cases, defined as "asylum claims made before March 2007, but given a temporary form of leave (usually up to three years) who have to reapply for further leave before the existing temporary leave expires". At paragraph 7.25, the Vine Report indicated that mixed messages were obtained from managers and staff about whether active review cases were dealt with by CRD or not. Sampling for the report clearly identified that CRD were either not reviewing or concluding these cases or were failing to properly identify all such cases and progress them.[42]It does not seem that the Defendant's practice was in fact to generally review cases in which DLR had previously been granted in order to consider whether ILR should then be granted. I certainly cannot discern a policy that required the CRD to take that course from the evidence before me.[43]Further, there is no basis upon which I can conclude that the Claimant acquired a right to be positively considered for ILR by virtue of his file being called up within the legacy programme. To do so would be inconsistent with the rationale in Geraldo, which I have already indicated the Claimant does not seek to challenge. There being no right invested in an individual falling within the legacy criteria to have a decision made before 20th July 2011, the Claimant cannot complain that the Defendant went no further than noting the existing leave.[44]The case of Mr Geraldo was being dealt with by the CRD in October 2010 as was the Claimant's case. In November 2010, Mr Geraldo was asked to provide further information so that his position could be considered. He did so but did not get a decision granting him leave until March 2012. It would be wholly artificial to draw a distinction between the two cases. It seems to me that the Claimant's claim is predicated on essentially the same misconception as that in Geraldo that the legacy programme would give rise to a right to a decision at a particular time.[45]It follows that I do not accept the Claimant's contention that there was an earlier decision that was unlawful or indeed "wrong".

The decision of 8th March 2012

[46]Having concluded that illegality or error in the public law sense has not been established in relation to the decision of 22nd February 2011 or any other earlier decision, there can be no basis for saying that the Defendant ought to have corrected an injustice, following the Rashid line of reasoning.[47]Notwithstanding my view on the earlier decision, I will nevertheless consider the exception set out in the Defendant's DL policy on the basis that the Claimant could fall within that exception even without demonstrating past illegality as such.[48]That is a specific exception, described by Green J in Tamsanqa Nzangane v SSHD [2014] EWHC 555 (Admin) at paragraph 22 as one of two exceptions "characterised by their very narrow, highly circumscribed scope". I agree that this exception is narrow and highly circumscribed and there cannot be any question of extending the exception or stretching it to fit the particular facts of a case. It either applies or it does not.[49]Giving the wording of the exception its natural meaning, it is clear that it does not apply to this situation. The first requirement is that the UKBA made a decision before 20th July 2011 that a grant of leave on the grounds listed in Chapter 53 was not appropriate. That did not happen in this case. The CRD simply recorded that the Claimant has existing DLR and so was not removable. They did not go on to make a consideration of the grounds in Chapter 53. The review simply stopped at the stage of identifying that the Claimant was not currently removable.[50]The next requirement is that there is a reconsideration of "that decision" that is the earlier decision that a grant of leave is not appropriate. Such reconsideration must be on the basis of the same evidence and conclude that the earlier decision was wrong and leave should have been granted. That is simply not what happened in March 2012. Rather consideration was given to the new application made by the Claimant to extend his previously granted DLR which was about to expire. That application properly fell to be considered according to the policies existing at the time.[51]I accept that the Claimant has been somewhat unfortunate in that his position has fallen to be considered before and after the period during which those who could not be removed were routinely being granted ILR rather than DLR. It does seem, as Mr Turner contended, that the fact that he succeeded on his appeal in 2008 and was then granted DLR has led to him being treated less favourably than if there had been no previous grant of DLR. However, changes in policy will inevitably produce anomalies and situations where individuals can say the policy change has not been fair to them. As Goldring LJ said in R (S, H & Q) v SSHD [2009] EWCA Civ 334 (paragraph 46):
"there can be no question of intervention by the court on the basis of a generalised and unfocused idea of fairness; or by consideration of what subsequently happened to the individual in question and categorised in broad terms as prejudice, loss and detriment."

Conclusion

[52]The Claimant's case as ultimately pursued before me was a challenge to the decision of 8th March 2012 whereby he was granted DLR for a further period of three years. He contended that he would have been granted ILR but for an earlier erroneous decision or mishandling of his case. The decision in March 2012 should have corrected the previous injustice by granting ILR at that stage. His primary position was that his case fell squarely within an exception to the general policy of granting DLR rather than ILR from 20th July 2011. Therefore, the decision of 8th March 2012 amounted to a failure by the Defendant to follow her own policy. In the alternative, he argued that the case had been mishandled such as to require rectification by the court following the Rashid line of authorities.[53]I have found that the particular, narrow exception relied upon by the Claimant did not apply on the facts of this case. Therefore, the argument that the Defendant failed to follow her own policy falls away. I am also unable to find any illegality or public law wrong in the earlier decision such as to allow the court to interfere on the basis identified in Rashid.[54]For completeness, I note that the claim was brought out of time. As the claim was eventually presented, it was a challenge to the decision of 8th March 2012. It was not brought until 14th December 2012. Had I found that the substantive grounds were made out, I would have had to weigh the issue of delay in considering the remedy. However, permission to proceed with the judicial review having been granted, I would have had to look at delay and the balance of prejudice in the round. In that regard, Mr Turner referred me to paragraph 51 of his skeleton argument (which he confirmed was not a separate ground but a matter to be weighed against the delay). The Defendant did not contend that the delay would cause any specific prejudice nor indeed argue the delay point with any force at the substantive hearing. Accordingly, had I found that the Claimant's grounds for judicial review were made out, it is unlikely that I would have declined to grant relief on the basis of delay.[55]However, for the reasons set out above, the application for judicial review fails and must be dismissed.