Omokayode, R (On the Application Of) v The Secretary of State for the Home Department [2014] EWHC 594 (Admin)

[2014] EWHC 594 (Admin)Case No CO/1973/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 06/03/2014
Before
MRS JUSTICE ANDREWS DBE
Between
R (Omokayode)ClaimantThe Secretary of State for the Home DepartmentDefendant
Ms Nicola Braganza (instructed by Birnberg Peirce & Partners) for ClaimantMs Julie Anderson (instructed by The Treasury Solicitor) for DefendantHearing Hearing dates: 13 February 2014
Judgment
[1]This claim for judicial review started life as a challenge to the failure by the Secretary of State to make a decision on the Claimant’s application for discretionary leave to remain in the United Kingdom on human rights grounds, which was made on 11 May 2007. A decision on the Claimant’s application was eventually made on 27 February 2012, although a letter sent to her solicitors on 26 August 2011 had indicated that she would be granted leave subject to security checks. She was granted Discretionary Leave to Remain (“DLR”) outside the Immigration Rules for a period of three years, in line with the Defendant’s published policy.[2]Following that decision, the Claimant sought and obtained permission to amend her grounds of claim to challenge the decision on the basis that she should have been granted Indefinite Leave to Remain (“ILR”). The grounds were further amended to take account of the decision of King J. in R (Geraldo, Aroun and Iqbal) v SSHD [2013] EWHC 2763(Admin), which post-dated the grant of permission to bring judicial review in the present case. The claimants in those cases, like the Claimant in the present case, were claiming that they should have been granted ILR instead of DLR. Though, of course, each case was fact-specific, each of those claimants contended that his claim “should have been dealt with” by 19 July 2011, that if it had been considered before then it would have resulted in the grant of ILR, and that therefore he had been caught to his detriment by a change of policy by the Defendant introduced on 20 July 2011 to grant only DLR in such cases.[3]The claims failed. King J. followed the principles articulated by the Court of Appeal in R (S, H & Q) v SSHD [2009] EWCA Civ 142 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. He also adopted the observations of Mitting J in R(Shah) v SSHD [2013] EWHC 2206 (Admin) at paragraph 36:
“… The Secretary of State is entitled to apply policy applicable as at the date of the 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 ….”
[4]King J. held that in a context where none of the claimants had any entitlement to the grant of leave within the Rules, it could not be said that there was an obligation to make a decision in any of their cases prior to 20th July 2011 such that not to make it before that date was an unlawful omission on the part of the Defendant. Even if the claimants had been able to point to evidence of serious maladministration in the Defendant not dealing with their respective cases sooner than she did, such maladministration in and of itself cannot give rise to an illegality in the decision when it was made, capable of founding the intervention of the court which was sought. He said, at para 116: “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”.[5]More recently, a challenge to the grant of DLR rather than ILR was considered in this court by Lewis J in the case of R (Mohammed) v SSHD [2014] EWHC 98 (Admin) (not to be confused with the judgment of Stephen Morris QC in an earlier case with the same name [2012] EWHC 3091(Admin)). In that case, the principal basis of challenge to a decision made in March 2013 to grant a further period of DLR was that the claimant should have been granted ILR instead of DLR in 2009 and that the Defendant should have exercised her discretion and granted him ILR in 2013 to cure that alleged “historic injustice”. Alternatively it was argued that that factor was, at least, a material consideration which the Defendant should have taken into account. The decision to grant DLR was also challenged as irrational or Wednesbury unreasonable, in that it was alleged that the Defendant failed to have regard to the ill-health of the Claimant and his wife and the fact that his circumstances were unlikely to change, and failed to have regard to the interests of his daughter as required under s.55 of the Borders, Citizenship and Immigration Act 2009. All these arguments were unsuccessful.[6]As in the present case, the letter from the Defendant informing the claimant that he had been granted DLR gave no reasons for refusing to grant ILR. It stated that he had been granted leave “in accordance with the published Home Office Asylum Policy Instruction on Discretionary Leave”. Lewis J. held that it was implicit in the decision that the Defendant had considered the request for further leave made by the claimant, and that the Defendant considered that granting discretionary leave was the appropriate course of action, applying the normal policy applicable in such cases, rather than, exceptionally, granting indefinite leave to remain. That was a rational, lawful decision. It did not involve the application of a blanket policy nor did it disclose any failure to consider the matters put forward by the claimant in his application.[7]In dealing with the submission that the policy was applied in an unfair and unlawful manner and failed to take into account the circumstances of the claimant, his family and his child, because there were no factors militating against a grant of indefinite leave and there were additional compassionate family and child circumstances militating in favour of granting ILR, Lewis J. said this:
“That submission reads as if the Defendant is in some way obliged to grant indefinite leave to remain unless there are positive reasons for refusing it. In fact, that is not the position. The Defendant is entitled to adopt a policy whereby those who do not have leave to remain in the United Kingdom may be granted discretionary leave to remain because of the particular circumstances of the individual or his family. The Defendant is also entitled to adopt a policy whereby an individual will generally need to complete a qualifying period of six years pursuant to the grant of discretionary leave before being eligible for the grant of indefinite leave. That is a lawful, rational, policy.”
[8]I agree with those observations. It follows from the reasoning in that case that where the Secretary of State is adhering to published policy, in exercising a discretion to confer a benefit on someone to which they would not otherwise be entitled, there is no obligation to give reasons for not making an exception to that policy. One cannot draw any inference from the absence of such reasons in the decision letter, let alone the inference that the decision maker has failed to give consideration to whether the case is so exceptional as to warrant a departure from policy and grant ILR.[9]Undaunted by these developments, the Claimant nonetheless seeks to persuade the Court that her case is different from the Geraldo and Mohammed cases and that because her claim to ILR is so compelling, she was entitled to an explanation from the Defendant as to why it was being refused and DLR granted instead. It was submitted that the Court was entitled to draw the inference that the decision maker must have failed to take into consideration all the evidence put forward by the Claimant in support of her claim for ILR because, if that evidence been given even the most cursory examination, the only lawful and rational conclusion would have been that ILR should be granted. The Claimant’s case was said to be closely analogous to the two specific circumstances in which the policy itself recognizes that ILR rather than DLR would be appropriate, and there is always a residual discretion to make an exception to the policy in such circumstances.[10]Despite the forceful manner in which those submissions were urged upon the Court by Ms Braganza, I am unable to accede to them. There is no material distinction between this case and that of Mohammed other than the negative feature that the Claimant has a criminal record, a matter to which I shall return later in this judgment. The delay in this case, long though it was, did not give rise to any illegality, and even if the delay in itself had been unlawful, the appropriate remedy would have been a mandatory order requiring the Defendant to make a decision. Any such decision would have been made in accordance with current policy, as indeed the eventual decision was. There was no obligation on the Defendant to set out reasons for refusing to make an exception to that policy and grant ILR. This is not a case in which it is obvious that no rational decision-maker could do anything other than grant ILR, and the inference that the decision-maker took no account of the Claimant’s particular circumstances when reaching the decision to grant DLR cannot be drawn from the absence of reasons in the decision letter or the absence of a written internal record of the decision-making process.[11]At the time when the application was made, the Claimant had already been in the UK for 10 years. She had been heavily pregnant when she arrived and gave birth to her son very shortly after she entered the jurisdiction in May 1997. Her claim for asylum failed, and she became appeal rights exhausted in November 1998. From that time onwards, she remained in the United Kingdom unlawfully. However, no directions have ever been set for her removal. Her son, who is now 16, became a British Citizen in June 2008.[12]Applications made by the Claimant under the family amnesty and the seven year child concession (DP 5/96) had also failed, because the Claimant had a number of criminal convictions for deception which automatically excluded her from those concessions. After her last conviction in January 2006 she received an eight month prison sentence, and was released with electronic tagging after serving the prescribed period in custody. Shortly thereafter, on 16 May 2006, the Claimant was arrested and detained with her son at Yarlswood detention centre for one month. That detention was unlawful, and the Claimant subsequently sought and obtained compensation for it. A psychiatrist’s report attests to the detrimental impact that the detention had on her mental health and (even more so) on that of her son.[13]The Claimant’s appeal against the refusal of her claim under the child concession was heard whilst she was still at Yarlswood. In the course of that appeal, the Claimant sought to make a claim based on Article 8 ECHR, but the Immigration Judge held that he had no jurisdiction to consider it, on the basis of the decision in JM (Liberia) UKIAT 0009 (because no removal directions had been set). However, that case was subsequently overruled by the Court of Appeal.[14]It was against that background that the Claimant submitted a claim on human rights grounds in May 2007, ten years after her arrival in the UK. It is fair to say that although the original letter contends that her removal would breach Article 3, and also Article 6 (because of the adverse impact it would allegedly have had on her ability to progress her claim for unlawful detention), the focus was upon Article 8, as it has been ever since. The claim was supported by detailed submissions and ample documentation including witness statements. It referred to the efforts made by the Claimant to improve her education, to her voluntary work in the community, and to her son’s progress at school. It also drew attention to the fact that the Claimant and her son were living with the Claimant’s sister in very limited accommodation, and pointed out the difficulties that this presented for all concerned. Further detailed representations were sent to the Defendant in June 2007.[15]In around April 2008 it appears that the UK Border Agency rang the Claimant’s solicitors and asked for a further copy of the application. This was sent to them by special delivery on 17 April 2008. However, this copy was returned to the solicitors in error, and a further copy of all the documents was sent on 13 May. In September 2008 the Claimant’s MP chased the Defendant for a response.[16]In October 2008 the Defendant informed the MP that the claim was being dealt with administratively by the Case Resolution Directorate (“CRD”). This was a unit set up under the Secretary of State’s operational programme for the resolution of a large backlog of unresolved asylum and other immigration cases, known as the “Legacy Programme”. The Legacy Programme and the policies and practices of the CRD and its successor, the Case Assurance and Audit Unit (CAAU), and the relevant legal and policy framework applicable to legacy cases are described comprehensively in the judgment of Simler J. in Hamzeh & Others v SSHD [2013] EWHC 4113 at paragraphs 11-15 and paragraphs 16-27 respectively. I gratefully adopt what is said there for the purposes of this judgment without repeating it.[17]Further delay was the inevitable concomitant of a case going into the Legacy Programme. It was the aim of the Defendant to deal with the legacy of unresolved cases within five years, i.e. by the summer of 2011. However, as Simler J. held in Hamzeh, there was no binding commitment by the Defendant to resolve the backlog by a given date, such as to give rise to public law error when that aim was not achieved. 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 that a decision would be made to grant leave; and those cases where the individual could easily be removed from the UK. There remained a discretion to deal with exceptional or compassionate cases out of turn. A person within the Legacy Programme who considered that his or her case fell within a priority category could write in and seek a decision to that effect. The website gave information about making such an application.[18]In R (FH & Others) v SSHD [2007] EWHC 1571 Collins J held that the manner in which the backlog was being dealt with was reasonable and fair, and that although delays of between 2-5 years were not to be condoned, “none were so excessive as to be for that reason alone unlawful” (para 21). In the present case the overall delay in dealing with the claim was a few months short of 5 years.[19]The underlying policy of the Defendant is to remove illegal migrants from the UK unless such removal would breach the Refugee Convention or the ECHR, or there are exceptional circumstances (or compelling reasons) in an individual case for not doing so. However, as the Supreme Court recognized in R(Patel) v SSHD [2013] UKSC 72, there is no duty on the Defendant to issue removal directions, either generally, or at the same time as refusing leave to remain. Since setting removal directions has resource implications, the Defendant is entitled to proceed on the basis that the person concerned should be allowed to leave the country voluntarily.[20]As the case of R(Shahid) v SSHD [2004] EWHC 2550 (Admin) demonstrates, at all material times the Defendant’s policy in those cases where an individual who made a failed asylum claim successfully challenges a decision to remove him on the basis that his removal would involve a breach of Article 8 ECHR, has been to grant DLR. Of course, as the Supreme Court took pains to stress in Patel, it is important to remember that Article 8 is not a general dispensing power, and a decision that removal would be disproportionate interference with a person’s Article 8 rights is to be distinguished from the exercise of the Defendant’s discretion to allow leave to remain outside the rules, which may be unrelated to any protected human right. This case is concerned with the exercise of that wider discretion. Nevertheless, one would naturally expect a consistent approach to be applied in cases where there appears to be a strong human rights claim but no decision has yet been taken to remove the individual concerned from the jurisdiction, and a discretion is being exercised outside the immigration rules.[21]As in Hamzeh, Chapter 53 of the Enforcement Instructions and Guidance (EIG) is at the heart of the present judicial review challenge. As Simler J. observed in paragraph 26 of Hamzeh, the following points are common to each edition of Chapter 53: i) It makes use of the factors set out in paras 395C/353B of the Immigration Rules, giving more detailed guidance under each listed factor; ii) It expressly states that the list is not exhaustive; iii) Consideration of relevant factors needs to be taken as a whole rather than individually; iv) Discretion not to remove on the basis of “exceptional circumstances” will not be exercised on the basis of one factor alone. Thus the length of time spent by the applicant in the UK is not, and never can be, the sole determinative factor in favour of the grant of leave outside the Immigration Rules. As Hamzeh makes clear, even in a situation where an individual cannot be lawfully removed from the UK (for example because the current situation in their home state would engage Article 3) and has spent many years in the UK, there is no obligation on the Secretary of State to grant them ILR.[22]The case of Hamzeh also establishes that the same law, policy and guidance applied to cases within the Legacy Programme as applied to all other cases at the time of decision. There was no discrete “legacy policy”.[23]The Chapter 53 Guidance prior to July 2011 did not specify the period of leave which could or should be granted if the decision maker reached the conclusion that the factors to be considered under what was then para 395C militated against the applicant’s removal. As is explained in paragraph 55 of Geraldo, although prior to July 2011 there was a practice of granting ILR to individuals when a decision was taken not to remove them, this was not invariable. CRD granted forms of leave other than ILR where appropriate to the circumstances of the case, applying the current law and policy. However in the majority of cases, if leave was granted, it was ILR.[24]The common practice of granting ILR under Chapter 53 to individuals who had no rights at all, created anomalies. It was possible, for example, that someone who had entered the country lawfully and made an application within time for an extension of that leave on Article 8 grounds might end up with DLR, whereas someone else whose case did not have those positive features would be granted ILR. The discretion to grant leave outside the immigration rules should not be exercised in a manner which undermines immigration policy by providing a disincentive to adhere to the rules by favouring those who disregard them. It was against that background that the Defendant’s instruction to caseworkers as to the grant of DLR was introduced on 20 July 2011. The guidance in Chapter 53 was revised to provide that “where, as a result of considering the factors set out in 53.1.2, removal is not considered appropriate, a maximum of 3 years Discretionary Leave should be granted”. The grant of DLR to the Claimant is consistent with that policy.[25]One of the matters that is said to distinguish the Claimant’s case from the other “legacy cases” such as those in Geraldo and Hamzeh is that she had made a human rights claim. Another feature relied on was the much greater length of time she had already spent in the UK before she made her application, which distinguished her case from that of Mohammed, where the initial application was made after only 4 years. By the time the decision was made, the Claimant had been here for almost 15 years, and five of those years had been spent waiting for that decision. Thirdly, it was pointed out that the position of her son and his interests had to be considered; he had spent all his life in the UK, was educated here and was now a British Citizen, and she was a single parent responsible for looking after him. Fourthly, the Claimant had other strong family ties in the UK. However all these factors were necessarily taken into account in the application of the Chapter 53 policy post-July 2011, because they are all factors pointing towards the conclusion that her removal from the UK would be inappropriate. There is nothing exceptional about them.[26]Another matter that is heavily relied on by the Claimant is the “GCID case record sheet,” which is an internal record kept on the Defendant’s database and updated from time to time. An entry on 11 August 2008 records that the Claimant is a failed asylum seeker with appeal rights exhausted on 3 July 2006. The “minute/case notes” read as follows:
“She has been in the UK for over 11 years with her son (arrived 07/05/97). The child has spent his formative years in the UK and comes under the scope of DP5/96. He has also recently been granted British Citizenship on 11/06/08. There are clear Article 8 issues involved. The applicant has never had a human rights appeal, and so any refusal of her outstanding HR claims of 11/05/07 would attract a ROA, which would delay her case even further….(there is then a reference to the case of EB Kosovo v SSHD [2008]). Similarly, bearing in mind further recent case law, Beoku-Betts v SSHD [2008] as the applicant has many family members in the UK with status including mother, sister and brother, it would have a significant impact on her Article 8 rights if we sought to enforce removal. Taking all the above into account, and the provisions of paragraph 395C, this case has little chance of resulting in successful enforcement action and instead, should be sent to its allocated CRT to resolve applicant’s immigration matter.”
[27]It was submitted that this amounted to a clear instruction that the claim should be resolved within a reasonable time by the grant of leave to remain, and that if the matter had been looked at within a reasonable time after August 2008 the Claimant would have been granted ILR, as was then the general practice. I am unable to accede to those submissions. That internal entry is plainly not a record of a decision being made under paragraph 395C. Nor is it an instruction to anyone about when, let alone how, to resolve the claim; the writer is merely compiling information for the purpose of referring the matter to the decision-maker in the relevant case resolution team.[28]Moreover, it does not follow from the recognition in that document that the personal factors weighing in the Claimant’s favour meant that the prospects of removing her from the jurisdiction were low, that the Defendant would be obliged to exercise a discretion to grant her leave to remain outside the rules, let alone ILR: see Hamzeh at paras 70 and 71. There is no reference in that particular entry to the Claimant’s criminal record, (a factor of some importance in the decision-making process) though it is mentioned elsewhere. There is nothing in the GCID case record sheet that advances the Claimant’s case.[29]Ms Braganza submitted in the alternative that, even if there was no operative decision or instruction in the GCID case record sheet, nevertheless, given all the special features of this case, including but not limited to the length of residence, the false imprisonment of the Claimant and her son, the repeated submissions made by the solicitors, and the Defendant’s recognition in 2008 that she was unlikely to be able to remove the Claimant, the delay in reaching a decision crossed the line from maladministration into illegality. The Defendant should have reached a decision no later than six months after the Claimant’s file was reviewed in August 2008, and in any event before the rules changed in July 2011. That was enough to bring the Defendant’s case into the exceptional category where exercise of the discretion to grant her anything other than ILR would be unfair and irrational.[30]However, the fact remains that there was never any commitment by the Defendant to reach a decision in the Claimant’s case by any specific time and in the absence of such a commitment there was no legal obligation to do so. Although the Claimant’s solicitors did keep pressing for a decision, they never applied for the claim to be treated as a priority, and they were never told that it would be. The only time that they were given anything approaching an assurance by the Defendant as to when a decision would be made was in the response to their pre-action letter of 2 November 2011, when they were told that the Defendant would aim to make a decision within six months. A decision was made the following February, which was well within that target.[31]The length of time that an applicant had already spent in the UK was never something that in and of itself gave rise to any obligation on the part of the Defendant to deal with that person’s claim within the Legacy Programme any more swiftly than another person’s claim. Nor could it transform a period of delay that in another applicant’s case would be characterised as maladministration, into illegal delay. Nor could the fact that the Claimant’s solicitors had been chasing the Defendant for a decision. All claims within the Legacy Programme were there because they had already been in the system for a very long time and it is inevitable that some of the individuals concerned would have been in the country for much longer periods than others. The principles enunciated and applied in Geraldo and Hamzeh apply with equal force to a case where the applicant has been in the country for ten years at the date of his or her initial application for leave outside the immigration rules as they do in a case where the applicant has been in the country for a less significant time.[32]Although the delay from 2008 to 2012 is unexplained, and is clearly open to criticism not just on account of its length but on the basis that this claim arguably fell within the third of the recognized priority categories, the decision was still reached within the five years that it was contemplated at the outset would be taken to deal with cases within the Legacy Programme. There is nothing special about this case to distinguish it from the other Legacy cases in which similar arguments based on delay were dismissed. The delay in this case was not unlawful, and even if it had been, the appropriate remedy would have been an order requiring a decision to be made, not the quashing of the decision that was eventually made and its replacement with some different decision.[33]In any event, it is far from obvious that consideration of the Claimant’s human rights claim in 2008 or 2009 or indeed at any time prior to July 2011 would have resulted in a grant of ILR. Given that the Defendant’s policy in a case where Article 8 considerations would prove an impediment to removal has been to grant DLR, it seems to me to be far more likely that any exercise of the discretion in this case in favour of the Claimant at an earlier stage would have resulted in the grant of DLR. I am fortified in that conclusion by what happened to the claimant in the Mohammed case, because he was granted DLR in 2009 on the basis of his family ties and private life. Although the Claimant had been in the country for much longer than he had, that has to be balanced against the fact that she has a criminal record, and not just for an isolated offence, whereas he did not.[34]Of course a grant of DLR at an earlier time would have meant that the time at which the Claimant in this case could apply for ILR would have arrived sooner, but that is simply the effect of the delay in making the decision. If, as I have found, the delay was not unlawful, the impact of it upon the Claimant, however regrettable, is not a valid ground of complaint.[35]The Claimant also sought to rely upon the trenchant criticisms of the legacy scheme in the report by the Chief Inspector of Borders and Immigration, John Vine. However, that report is not the source of any rights, and the aspect of it that is sought to be relied upon was found to be in error in Geraldo at paragraphs 75-77. Ms Braganza sought to distinguish Geraldo on the basis that, as King J. expressly recognized in paragraph 77, there was no challenge before him on the basis that the 2012 decisions were flawed because of the failure to consider the applicability of a published or unpublished exception, whereas here the failure to consider whether an exception should be made was at the heart of the claim for judicial review.[36]However, the Claimant’s case does not fall within either of the published exceptions and there was no evidence before me of any unpublished exception. The argument raised by the Claimant was that this case was closely analogous to the exceptions. I do not accept that any such analogy can be drawn. In a case where the Defendant has made a flawed decision in the past, the person it affected may justifiably claim that he has suffered a disadvantage in consequence of a later change in the law. The same is true where the Defendant has failed to keep a promise to make a decision by a deadline which expires before the law changes. Here, however, there is no disadvantage save the “disadvantage” suffered by all those others in the legacy programme whose cases were not decided prior to July 2011, and even that “disadvantage” is illusory because, as I have already found, it is likely that any decision in the Claimant’s case made prior to that date would have resulted in a grant of DLR.[37]Apart from the decision letter itself, there is no other document that records the way in which the decision under challenge was reached. That was also the position in Mohammed. However, there is no need for a decision that is in line with current policy to expressly refer to Chapter 53 or the guidance in order for the decision to be lawful. As Simler J. observed in paragraph 88 of Hamzeh:
“… so long as the guidance is considered and applied there is no requirement to make express reference to it or to each factor listed.”
This decision was completely in line with the guidance in force at the time it was made.[38]I also reject the contention that the decision was manifestly irrational. The decision maker was obliged to weigh a number of factors in the balance and reach a decision on the totality of the information available. So far as factors relating to character and compliance were concerned, the Claimant had entered the UK illegally whilst heavily pregnant. She therefore intended her child to be born here. After her asylum claim was rejected, she remained in the UK and strengthened her ties here in the knowledge that she had no leave to remain. Although she did not abscond, between 1999 and 2006 she committed offences of theft and deception, for which she ultimately received an eight month custodial sentence. Her criminal record was the factor which prevented her from obtaining leave to remain under other policies which favoured those with dependent children who had been born and/or brought up in the UK. Although the nature of the Claimant’s criminal offences and her sentence did not fall within the categories which would normally be regarded as decisively weighing against her application, they were nevertheless factors that weighed heavily against a discretionary grant of leave to remain and could still have been decisive, were it not for the delay in dealing with her claim.[39]There was and is no obligation on the Defendant to grant any form of leave to remain to an applicant who has entered and remained in the jurisdiction unlawfully, and then committed criminal offences, even if that person has been living in the jurisdiction for many years. Those were strong factors that weighed against the grant of any form of leave. In this particular case, all the countervailing factors relied on by the Claimant, including the unacceptable delay in dealing with her human rights claim under the Legacy Programme (which only served to further strengthen her ties with the UK) were obviously what led to the balancing exercise being resolved in her favour and the Defendant taking the exceptional course of granting DLR to an applicant with a criminal record. The grant of DLR was in line with the Defendant’s policy of granting DLR to those (without criminal records) whose removal is no longer considered appropriate.[40]It is true that there was always a discretion to depart from that policy and grant ILR if there were sufficient compelling circumstances to justify that departure. However this case has no special features that would make it an exception to the applicable policy under Chapter 53, which is itself an exception to the normal policy of requiring illegal migrants to leave. As I have said, all the features relied upon by the Claimant are of the normal kind that would weigh in favour of an applicant relying on Article 8.[41]The Claimant adduced evidence as to the adverse impact that the grant of DLR as opposed to ILR has had on her, including the stress and anxiety that uncertainty about her immigration status has caused both to her and her son, and the impediments that the grant of DLR may cause to her laudable attempts to make progress with her education. For example, she is treated as an overseas student, and in consequence she will probably be charged higher tuition fees which she will struggle to afford. Of course I accept that the grant of DLR has made life very difficult for the Claimant in the ways she describes; but however much this Court may sympathize with these difficulties, it cannot interfere with a decision made by the Defendant unless a challenge to that decision is well founded on public law grounds.[42]For the reasons set out in this judgment, there was no public law error in this case. The decision to grant DLR is not legally flawed for any of the reasons set out in the amended grounds. There has been no unfairness to the Claimant, and no historic injustice that requires redress. This claim for judicial review must therefore be dismissed.

Cited in 3 later judgments