Nzangane v Secretary of State for the Home Department [2014] EWHC 555 (Admin)

Case No CO/4995/2012[2014] EWHC 555 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Birmingham Civil Justice Centre, 33 Bull Street, BirminghamDate 05/03/2014
Before
MR JUSTICE GREEN
Between
Tamsanqa NzanganeClaimantThe Secretary of State for the Home DepartmentDefendant
Jamil Dhanji (instructed by Braitch Solicitors) for ClaimantVinesh Mandalia (instructed by The Treasury Solicitor) for DefendantHearing Hearing dates: 13 th February 2014
JudgmentMr Justice Green :
[1]The issue The single issue arising in this judicial review is whether an unwritten exception exists in relation to the new policy introduced by the Secretary of State for the Home Department (“SSHD” or “the Defendant”) in July 2011 by which so called Legacy asylum applicants were in future to be granted Discretionary Leave to Remain (“DLR”) and not Indefinite Leave to Remain (“ILR”). If such an exception exists a further question arises as to its scope. This judgment considers also the implications and reach of the judgment of King J in Geraldo v SSHD [2013] EWHC 2763 (Admin).[2]More specifically the case concerns whether as part of the Defendant’s policy towards Legacy applicants there was a so-called “compelling reasons” exception in favour of applicants who met indicators including: long presence on the part of the applicant in the United Kingdom; long and serious delays in the processing of the applicant’s claim for leave to remain on the part of the SSHD; and where the applicant had enjoyed periods of DLR which in total amounted to or came close to the periods of presence which might otherwise entitle an applicant to ILR. And even more specifically the case concerns the inferences to be drawn from the findings made by Sir John Vine CBE QPM, the Independent Chief Inspector of Borders and Immigration in his Report entitled “An Inspection of the UK Border Agency’s Handling of Legacy Asylum and Immigration cases” March-July 2012, (hereafter “The Vine Report”). The facts[3]The Claimant is a national of Zimbabwe born on 2nd March 1970. He arrived in the UK seeking asylum on 21st February 2002. The asylum application was based upon a claim that if he was returned to Zimbabwe he would be persecuted by virtue of his political opinions. The Secretary of State however refused the application giving reasons in a decision letter dated 27th February 2002. The appeal against that decision was rejected by an adjudicator on 1st July 2002. Leave to appeal to the Immigration Appeal Tribunal was refused upon the basis that it was unarguable on 28th July 2002. Thereafter, on 5th September 2002 the Claimant made an application to be granted ILR outside of the Immigration Rules (hereafter “IR”). The basis of the application was a repetition of the facts and matters relied upon in support of the initial but failed asylum application together with the additional, and now new, ground that he risked persecution were he to be returned to Zimbabwe upon the basis that he was a failed asylum seeker.[4]Nothing much happened to this application over the ensuing years. The Claimant moved residence upon a number of occasions, requests for information were sent by the Home Office, some were sent to wrong addresses, some requests were answered, others were not answered or answered tardily.[5]Within the UK Border Agency the Claimant’s case was one of the vast number of Legacy cases then being processed. In 2011 the Claimant was informed that no final decision had yet been taken upon his application but that the matter had been transferred to the Case Assurance and Audit Unit (“CAAU”) and that it would be resolved in due course in accordance with existing law and policy.[6]Finally, on 9th February 2012 a decision was taken (“the Decision”). For present purposes the operative part of the Decision states as follows:
“Your claim has been reviewed and it has been decided that the Secretary of State’s discretion should be exercised in your favour and you have been granted Limited Leave to Remain in the United Kingdom for a reason not covered by the Immigration Rules”
. In accordance with this Decision the Claimant was given DLR to remain for three years, until 8th February 2015. The remainder of the letter was in standard form giving details of what the grant of DLR entailed for matters such as receipt of asylum support, entitlements, right to travel abroad, rights of dependence, etc. However no substantive explanation was given for the exercise of the discretion or, of course, for the refusal to grant ILR.[7]An application for permission to apply for judicial review of the Decision was lodged on 14th May 2012. It is not necessary to set out in any detail the Grounds there relied upon. It suffices to record that one aspect of the complaint was that the Defendant had changed her policy in July 2011 so that whereas Legacy applicants had hitherto been granted ILR, henceforward they would be limited only to DLR. It was contended that it was unlawful, for a variety of reasons, to apply the new and less generous policy to pre-existing applicants. Permission was granted to apply for judicial review on the papers by a decision of 10th August 2012.[8]At this point in time the High Court was due to hear the case of Geraldo v SSHD [2013] EWHC 2763 (Admin) which, it was expected, would address a number of widely arising issues of principle and practice concerning the rights of long term Legacy applicants arising, inter alia, out of the change of policy brought about in July 2011. On 17th April 2013, by consent, the present application was therefore adjourned to await the result in Geraldo.[9]Judgment in Geraldo was handed down on 6th September 2013. Prima facie, the judge closed down the various avenues of challenge which had been raised in that case. In the light of that judgment Hickinbottom J ordered that unless the Claimant indicated an intention to proceed and explained how his application was distinguishable from the position of the failed claimants in Geraldo by 29th November 2013 the application would stand dismissed.[10]The Claimant duly served amended Grounds on 28th November 2013 together with a Notice of Intention to Proceed. An amended Defence was served by the Defendant on 30th January 2014. The amended Grounds identify a series of points which it is said were not addressed adequately or at all in Geraldo. In his helpful oral submissions at the hearing on 13th February 2014 before me Mr Jamil Dhanji, for the Claimant, confirmed that he was taking only one of the two points set out in his amended Grounds. I granted permission to Mr Dhanji to argue the amended Grounds.[3]The CPR Part 18 Request for Information[11]On 4th February 2014 the Claimant served upon the Defendant a Request for Information (“RFI”) pursuant to CPR Part 18. The RFI seeks information from the Defendant relevant to paragraph 7.44 of the Vine Report. The relevant text of that paragraph is set out at paragraph [15] below. In that paragraph the Inspector identified an exception to the July 2011 policy of only granting DLR upon the basis of so-called “compelling reasons” which included, as potentially relevant indicia: having spent a very long period of time in the United Kingdom; having been subject to multiple and serious delays not attributable to fault by the Applicant; and having had one or more periods of lawful leave that came close to meeting the six years of DLR that an applicant would need to qualify for a grant of ILR. This paragraph was analysed in the judgment of King J in Geraldo (ibid) in the section of that judgment dealing with the July 2011 change of policy: See Geraldo paragraphs [67]-[77]. In particular in paragraphs [74] and [75] King J discusses evidence before him from officials from within the Home Office which concerns the scope and effect of paragraph 7.44 of the Vine Report.[12]By virtue of the RFI the Claimant has sought information about an email referred to in paragraph [74] of Geraldo written by a Mr Rob Jones, Head of the Home Office Asylum Policy Unit, dated 7th September 2012 which refers, inter alia, to “guidance” which provided for a number of situations where ILR had been granted instead of DLR and which is said to be predicated upon evidence of a “clear failure” by the UK Border Agency to act upon properly pursued applications. Further, the Claimant sought information about a further reference in paragraph [75] where a yet further civil servant, Mr Neil Parkin, is said to have described Mr Jones’ email as “at best a statement of general approach if the residual discretion was ever called upon but not a policy statement”. Information is also sought about other statements of Mr Parkin which refer to the Vine Report as misconstruing the Defendant’s policy and as to advice apparently proffered to civil servants on the circumstances when a departure from the policy might be justified. In these requests the Claimant seeks to explore the breadth and substance of the “guidance” and “statement of general approach” and “advice” which it is said would have provided a far greater degree of definition to such discretion as was recognised by the Defendant to exist as exceptions to the “DLR only” policy. Mr Dhanji submitted that before any decision upon his application could be made the Defendant should give disclosure of this information. He submitted that the Vine Report evidenced a clear policy exception which officials sought to downplay in their evidence in Geraldo and he argued that the conclusions on this evidence made by King J were obiter and founded upon the fact that the evidence was unchallenged in Geraldo. He therefore submitted that the negative finding by the Judge in Geraldo did not cover the situation of his client who fell within the scope of paragraph 7.44 of the Vine Report.[4]The Claimant’s amended Grounds[13]Before considering the merits I turn to identify the Claimant’s amended Grounds which seek to map out issues not covered by the judgment in Geraldo. The Ground now advanced may be summarised as follows: The Defendant is said to have erred and acted irrationally in failing to apply the policy identified in paragraph 7.44 of the Vine Report and/or in failing to give reasons for not doing so. Paragraph 7.44 evidences a clear policy applicable post-July 2011 to grant Legacy applicants ILR where there were “compelling” reasons for so doing based, inter alia, on length of residence, serious administrative delays, and prior periods of DLR granted to the applicant. The Claimant falls within the exception. By reference to the application under CPR Part 18, if there is doubt and uncertainty as to the existence and scope of this “exception” then before the Claimant’s application is adjudicated upon the RFI should be answered by the Defendant.[14]I have considered this matter in detail and I have had the benefit of concise and focused written and oral submission by Counsel for the Claimant and Defendant. I will address the Ground of challenge first and then consider whether in the light of my conclusions on that point it is necessary to accede to the application under CPR Part 18.[5]The compelling reasons exception? (i) Vine Report paragraphs 7.43-7.46[15]The Claimant’s case focuses upon inferences to be drawn from paragraph 7.44 of the Vine Report. It is important that this paragraph be read in its full context. Paragraphs 7.43-7.46 provide as follows:
“7.43 In September 2011, a CAAU manager asked the Home Office policy unit whether it could include cases within the first exception where CRD had not dealt with cases appropriately and there was no obvious reason why it had not made a decision. For example, where applicants were in contact with the Agency and the delay in making the decision was not attributable to them. The communication went on to add that applicants could argue that ‘they would be covered by the commitment to finish CRD by summer 2011’. The Home Office Policy Unit responded, stating that the policy positionwas that such cases would not fall within this exception, highlighting the importance of maintaining the principle ‘that cases are decided according to the law and policy in place at the time of decision’. 7.44 However, this position changed in November 2011, when the Home Office policy unit stated that it had no objection to older CAAU cases receiving ILR, where it was clear that this was appropriate and where it would not undermine the principle of cases being decided according to the law and policy in place at the time of decision. The advice to CAAU then went on to identify a further exception which could result in a grant of ILR rather than DL, in addition to providing further advice on circumstances where it may be appropriate to depart from policy and exceptionally grant ILR – Figure 25 refers. Figure 25: Two further scenarios where the grant of ILR might be appropriate 1. Where a decision was made prior to 22nd July that a grant of leave on these grounds was not appropriate, but after 22nd July 2011 the Agency reviews that decision and – on the basis of the same evidence – decides the earlier decision was wrong and that leave should have been granted. 2. Other cases where there are other compelling reasons to grant ILR rather than DL. Indicators that suggest a case may fall into this category include: • having spent a very long time in the UK (say 7 years plus); • having had multiple and serious administrative delays in a case being considered, through no fault of the applicant; and • having had one or more periods of lawful leave (e.g. DL as a UASC) that meet / come close to meeting the six years of DL that an applicant would need to qualify for ILR. These factors are not definitive and are cumulative, if several apply to one case it is more likely to fall into this category. 7.45 The above scenarios did not allow caseworkers to grant ILR themselves. They had to refer all such cases to a senior caseworker at Senior Executive Officer level. The Agency was unable to provide us with any evidence that local guidance had been issued to CAAU caseworkers setting out the exceptions (or the further advice provided), nor had any records [been] (sic) kept detailing when these exceptions were applied. This was unacceptable. Best practice is always to set out exceptions to the policy in guidance, which should be published for transparency purposes if possible. By failing to publish the exceptions and disseminate them widely, it was much more likely that the implementation of these exceptions would be adversely affected, with caseworkers either applying them inconsistently or not at all, as demonstrated by our file sampling findings. 7.46 If the exceptions had been implemented effectively, we would not have commented on this policy change. However, implementation was flawed. Our examination of cases where some form of leave was granted showed that adult applicants in four cases (9%) were granted ILR, while the remaining 42 (91%) got DL. We found nothing in either the paper file or on CID to indicate that those granted ILR fell under one of the exceptions. Furthermore, in our interviews with caseworkers none showed an awareness of any of the exceptions, they only spoke of ILR being replaced by DL”
.

Figure 25: Two further scenarios where the grant of ILR might be appropriate

[16]Paragraph 7.44 is said by the Claimant to represent the high water mark of the challenge.[17]It seems to me that there are three issues which arise from this Ground which necessitate a close analysis of what is actually stated in the Vine Report and, in the light thereof, an analysis of the scope of the judgment of King J in Geraldo coupled to a consideration of the principles which underpin that judgment.[18]The first issue concerns whether properly interpreted it is possible in law to infer from the Vine Report that any policy exists which reflects a residual discretion to grant ILR outside of the IR. The second question concerns the scope of any such policy that is found to exist. The third question is whether if such a policy exists it, necessarily, would apply to the position of the Claimant. (ii) Does a “compelling reasons” exception exist?[19]I consider the following question: Whether on the basis of the matters set out in the Vine Report there is any evidence of a policy exception to the principle that Legacy applicants be accorded DLR and not ILR? Paragraphs 7.30-7.51 of the Report focus upon the policy change introduced in July 2011 from ILR to DLR. The Inspector records the rationale for the introduction of the new policy. In paragraph 7.31 the following is stated: “7.31 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. The change was also justified on the basis that remaining legacy cases should not be treated more favourably than refugees who were normally granted five years’ limited leave. The Agency recognised this policy change increased the risk of litigation and told us it considered the potential impact in detail when the change was made. This included the need to provide for certain exceptions whereby ILR could still be granted. While we make no comment on the new policy itself, we identified that the exceptions were not in place when the change took effect, nor were they subsequently clearly communicated to staff”.[20]In paragraphs 7.32-7.40 the Report chronicles how it came to be recognised that an exception needed to be introduced to cover those cases where a caseworker had “made a written commitment that a case would be considered before 20th July 2011, but had failed to do so, and the Agency later decided that a grant was appropriate” (see Report paragraph 7.32). The Report goes on to explain how this particular exception took some time to be promulgated by being communicated to caseworkers. In paragraph 7.39 the Inspector recorded that the policy of the Borders Agency was that in cases where this exception did not apply the Agency would defend challenges and resist the grant of ILR. In paragraph 7.41 the Inspector concluded that in his view the failure to confer ILR on applicants who were not recipients of these commitment letters was – as it was put – a “serious omission”. The tenor of paragraph 7.41 and 7.42 is highly critical of the distinction drawn in this regard. Nonetheless, the Inspector clearly records that the distinction was drawn.[21]This section of the Report also records that a further exception was created for those in respect of whom a flawed and erroneous Decision had previously been taken where it was subsequently acknowledged that, had the Decision been properly taken, the applicant would have been granted ILR.[22]The two exceptions so far identified are characterised by their very narrow, highly circumscribed, scope. It was in this context that the possibility of a yet further, and third, much broader exception arose. This is recorded in paragraphs 7.43 and 7.44 of the Vine Report (see paragraph [15] above). The following matters are in my judgment relevant to this issue: i) Paragraph 7.44 takes as a starting point that exceptions to the grant of DLR could be made where appropriate and “…where it would not undermine the principle of cases being decided according to the law and policy in place at the time of decision”. ii) Figure 25 in paragraph 7.44 then identifies two “scenarios” – as they are termed – where ILR “might be appropriate”. It is hence stated not that ILR will be granted only that it “might” be granted in such cases. iii) The second of the two “scenarios” refers to indicia of “compelling reasons” which might include length of residence, applicants having been subject to multiple and serious delays for no fault of their own, and applicants having been the recipient of one or more periods of DLR. It follows that the Inspector was recording the existence of a residual discretion which would be triggered in “compelling” cases. The indicia listed are merely that – indicia; they are not stated to be rules, requirements or pre-conditions. iv) Paragraph 7.44, in referring to the scenarios in Figure 25, identifies them as cases where ILR would be granted “exceptionally”. It is clear from (i) above that the exceptions were not intended to undermine the basic rule which was that the grant would be of DLR not ILR (this being the policy in place at the time of the decision). v) This exception was not communicated to caseworkers by way of local guidance: See paragraph 7.45. vi) No records were kept detailing when exceptions to the basic principle of DLR were made: See paragraph 7.45. vii) Following a sampling exercise of 46 cases the Inspector found that in only 9% of cases (4 out of 46) had ILR been granted but in these cases there was nothing to show or evidence that the grantee fell under any exception, including a compelling reasons exception: See paragraph 7.46. viii) In interviews with caseworkers “none showed an awareness of any of the exceptions, they only spoke of ILR being replaced by DL”: See paragraph 7.46.[23]As I have observed the Inspector was critical of the way in which the exceptions to the policy were handled. I am not however concerned with the merits of the Defendant’s new policy. For my purposes I have to examine the Report to see whether, assuming (ex hypothesi) everything set out therein is correct, the proper inference to be drawn is that there was a third exception to the basic policy. The Report can be summarised thus: In circa July 2011 the Home Office Policy Unit expressed the view that there was no objection to ILR in “compelling cases” and identified some non-exhaustive possible indicia which might be relevant. However this view was never communicated to caseworkers who were hence unaware of it and there is, accordingly, no evidence that it was ever implemented. Can this amount to “policy” of a sort or type that is capable of attracting legal consequences?[24]In my view, at its highest, the facts indicate a putative policy which recognised only a residual discretion to the effect that exceptionally, in compelling cases, ILR could be granted. I describe this as “putative” because on the basis of the Vine Report there is no evidence that it was ever published or promulgated and no evidence that it was ever implemented. It thus seems to me on the basis of the facts set out in the Vine Report, and even assuming them to be correctly stated, that what is described is not part of a “policy”.[25]I have an additional difficulty with attaching the label “policy” to the conclusions of the Inspector.[26]If all the Inspector is saying is that there is an “exceptional” circumstances residual discretion then that is understandable. But if he is saying that there is as part of the policy a “compelling reasons” exception based upon long presence, severe delays by the State in processing applications, and tolerance of the presence of the applicant, he is not describing an exceptional category. He is, on the contrary, describing what is close to being a norm in the particular circumstances of Legacy claims. The Inspector accepted that the basic rule of the Defendant was that exceptions to the rule should not defeat the rule itself: See paragraph [22(i)] above. I accept, of course, that if a policy properly comes into being in a deliberate and transparent manner which is promulgated and implemented it does not lose its character as a “policy” simply because it may be subject to logical criticism. However, where the facts are that the alleged policy was never communicated, promulgated or implemented then its inherent improbability is a corroborating factor against the conclusion that it ever came into being at all. I therefore conclude on the basis of the Vine Report that a “compelling” reasons policy based on the indicators set out in paragraph 7.44 did not exist. This does not mean that some other, narrower, exception did not exist; it means only that the far broader exception described in the Vine Report never arose. (iii) The judgment in Geraldo[27]I turn now to the judgment of King J in Geraldo (ibid). The Judge considered the question of the significance of the July 2011 policy in paragraphs [67]-[77] of his judgment. In paragraphs [67]-[73] he described the July 2011 change in policy and the exceptions to the policy set out expressly in the new policy document. This was the new “Chapter 53 DL policy”. He records (see paragraphs [68]-[70]) the new paragraph 353B which identifies exceptional circumstances which might justify ILR. These express exceptions included two of the scenarios identified in the Vine Report viz(a) cases of clear commitment to adjudicate upon applications for leave before July 2011 and(b) cases where before the policy change an erroneous or flawed decision had been made to grant DLR which now needed correcting: see Judgment at paragraph [70].[28]In paragraph [73]-[75] the Judge considered the possibility of a yet further, residual discretion based upon exceptional individual circumstances: “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’… 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”. “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”.[29]In paragraph 75 the Judge goes on to cite from the witness statement evidence of Mr Parkin to the effect that because, in the view of the Home Office, no such policy, as is contended for, existed it was not, it necessarily followed, “put forward to caseworkers or published as a general exception”. It was, nonetheless accepted that as a matter of “basic decision-making” there was a residual discretion to depart from the policy of only granting DLR where there were sufficient exceptional compelling circumstances to do so. The position of the Defendant therefore is that there is a residual discretion to grant DLR outside the rules in exceptional cases but this did not embrace the broad indicators set in the Vine Report.[30]At paragraph [76] the Judge also stated the following which the Claimant relies upon in the present case because of its reference to the evidence being unchallenged:
“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…”
[31]The Judge also recited approvingly evidence which set out the reasons why creation of a third exception was not feasible. These may be summarised as follows. First, the creation of a third category would undermine a key principle underpinning the new policy namely that cases should be decided upon the basis of the law and policy in place at the date of decision. Secondly, there was no special quality true of all Legacy cases which merited a grant of settlement as opposed to an initial grant of DL; on the contrary Legacy cases tended to be those where an illegal entrant had no valid protection claim but simply refused to leave the UK as the law required. Thirdly, the creation of such an exception risked leading to arbitrary and unpredictable results. Fourthly, there were real difficulties in defining the group to be favoured with the exception.[32]In paragraph 77 the Judge stated the following which the Claimant also latches upon as indicating that the Judge’s findings were obiter: “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”.[33]In short the Judge rejected the notion that there was an exception based upon such factors as long presence, etc. He accepted that paragraph 7.44 of the Vine Report misinterpreted what had actually occurred. But he accepted that there was a residual discretion based upon wholly exceptional circumstances which operated outside of the IR. (iv) Conclusion on the existence of a third policy exception[34]The Judge’s conclusions, based upon the evidence before him, are consistent with the conclusion I have drawn from an analysis of the Vine Report standing alone. I have come to the conclusion that there is no specific policy such as that the Claimant contends for, which created an exception to the normal grant of DLR not ILR where an applicant has, like the Claimant in the present case, been present in the UK for a long time awaiting a decision of the Defendant. I do accept that, as is recorded in Geraldo at paragraph [73], the Defendant has a residual discretion which by its very nature will be an exceptional one to depart from the IR. I turn now to consider whether the residual discretion which does exist, could apply to the Claimant.[6]Does the exceptional circumstances policy apply to the Claimant?[35]The criteria that the Claimant relies upon (length of stay etc) do not amount to exceptional circumstances. Were it to be otherwise, the number of persons who would fit within the exception could be enormous. By virtue of the fact that the Defendant was overwhelmed by applicants for leave, delays in processing applications for leave to remain were endemic and very longstanding. Huge numbers of applicants therefore accrued time present in the UK by virtue of these administrative delays. The position of some, but not all, was recognised with the grant of periodic DLR. But these individuals, generally, are the not the exceptions which prove the rule; they are the very pith and substance of the rule itself.[36]Further, the exception to the basic principle of DLR not ILR is not exclusively based on “compelling” reasons. There is an additional, and quite critical, condition which is that the reasons must also be “exceptional”. From a non-legal perspective the cases of many applicants may be such as to attract sympathy and in a very loose sense be “compelling” but that does not come close to making them “exceptional”. It necessarily follows that the facts as identified by the Claimant, which amount to no more than long stay and excessive delays on the part of the Defendant, do not scratch the surface of exceptionality. The Claimant has indeed benefitted from the delays. He is entitled to remain in the UK until 2015. He is far from being exceptional.[37]Moreover, it cannot be argued that the Defendant failed to acknowledge that there was an exception that could in principle be applied to the Claimant. The Defendant was aware that she did have a discretion in relation to the Claimant and indeed exercised it, in his favour. This is evident from the extract from the Decision cited at paragraph [6] above.[38]The Claimant contends also that in his particular case he has been subject to maladministration and this distinguishes him from the norm. In his original amended Grounds he specifically pleaded maladministration amounting to illegality. In oral argument Mr Dhanji did not pursue illegality but prayed this matter in aid of exceptional circumstances. He relied in this regard upon alleged maladministration said to comprise a period of circa 9-10 months in 2011/2012 when the Claimant’s file was wrongfully placed upon the controlled archive and hence not actioned. If this amounts to maladministration it is at the very lowest end of the scale. In the broader context of the processing of the avalanche of Legacy applications flowing through the Home Office it is a relatively minor matter. It is not disputed that caseworkers were swamped and administrative hiccups abounded. The experience of the Claimant was far from unusual or exceptional. The net effect of this alleged maladministration has in fact been to accord to the Claimant a further period of leave to remain in the UK which is equivalent to the delay complained of. He has thus benefitted from the matter he criticises and has suffered no consequential prejudice. This does not, in my judgment, in and of itself, make the case of the Claimant exceptional.[39]It follows, therefore, that I do not accede to the Claimant’s application for judicial review. By way of final postscript I should add that although the point was attractively argued by Mr Dhanji the application under CPR Part 18 fails. Taken at its highest paragraph 7.44 of the Vine Report does not evidence a policy which could assist the Claimant. Mr Dhanji’s application was designed to circumvent the doubts cast upon paragraph 7.44 by the judgment in Geraldo. But if standing alone paragraph 7.44 does not assist then responses from the Defendant to RFI’s will not improve upon the findings in that paragraph. The application for judicial review fails irrespective of the judgment in Geraldo. In any event I do not accept that there is a need to delve beneath the surface of paragraph [74] and [75] in that judgment. The Judge’s findings are clear and not to be re-opened. I accept that, technically speaking, the Judge’s findings maybe said to be obiter and arose out of evidence which was “not challenged”. See paragraphs [30] and [32] above. However it is plain from the judgment that the Judge formed his own view of the evidence and that view is entirely consistent with the view I have formed about the Vine Report and as to the logic of the principles underpinning the July 2011 policy and the two limited exceptions to it. In short the Judge’s conclusions were correct.

Conclusion

[40]For all these reasons the application for judicial review fails.

Cited in 2 later judgments