ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CLARE MOULDER)
Royal Courts of Justice
Strand
London, WC2A 2LL
B e f o r e:
THE MASTER OF THE ROLLS
LORD JUSTICE TOMLINSON
LORD JUSTICE SALES
Between:
MOUSASAOUI
Appellant
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
DAR Transcript of the Stenograph Notes of
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Miss N Braganza (instructed by Leigh Day) appeared on behalf of the Appellant
Miss J Anderson (instructed by GLD) appeared on behalf of the Respondent
J U D G M E N T
THE MASTER OF THE ROLLS: The Appellant is an Algerian national. He states that he entered the United Kingdom on 9 September 1998, but he avoided immigration control so that no record of his entry exists. He claimed asylum on 11 September 1998. His claim was refused by letter dated 13 November 2001. His appeal was dismissed on 19 September 2002 and permission to appeal was refused on 10 December 2002. His appeal rights were thereby exhausted.
On 18 June 2010 he was informed that his case was with the Case Resolution Directorate of the UKBA ("CRD"). The CRD was established to resolve all asylum cases known as legacy cases where the initial asylum claim was made prior to 5 July 2007 and had not been concluded whether by removal, grant of asylum or being otherwise closed.
On 15 September 2011 the Appellant made an application to NASS for accommodation and support on the basis that his was an outstanding legacy case on which no decision had yet been made. On 9 November 2011 his application for support was refused on the grounds that he was not destitute. The letter stated that his case:
"has now been fully reviewed by CRD and the outcome is that you have no basis of stay in the United Kingdom. You should make arrangements to leave the United Kingdom without delay... UKBA records confirm that you have no outstanding further representations/applications that require consideration. You became appeal rights exhausted in December 2002 and have failed to maintain contact with UKBA or provided any new evidence that you wish to be considered as a fresh claim after this date. Your case has been fully determined and you have no legal basis to stay in the United Kingdom."
The Appellant states at paragraph 14 of the witness statement he made on 17 October 2012 that he did not receive any notification of a decision refusing his application to remain in the United Kingdom and that he assumed that the statement in the letter of 9 November 2011 that his case had been fully reviewed was a mistake.
In a letter to UKBA dated 17 January 2012 the Stoke-on-Trent Citizens Advice Bureau, who were advising the Appellant, said that the Appellant had received no separate decision refusing to grant him status under the legacy programme and requested such a decision.
On 2 May 2012 the Home Office wrote to the Appellant's MP confirming that there were no outstanding immigration applications in the Appellant's case and that there was no basis for altering the original decision to refuse asylum, so that he should make arrangements to leave the United Kingdom.
On 29 May 2012 the Appellant issued proceedings seeking judicial review of the decision of 2 May. By a consent order dated 5 December 2012 staying the proceedings, the parties agreed that the case would be reviewed taking account of the Appellant's witness statement of 17 October 2012. In that statement he had set out the history of his case and his life since his arrival in the United Kingdom.
By a letter dated 2 February 2013 the UKBA stated that the Appellant's case had been "fully reviewed" and that the outcome was that he had no basis of stay in the United Kingdom. Reference was made to paragraph 353B of the Immigration Rules which provides:
"Where further submissions have been made and the decision maker has established whether or not they amount to a fresh claim under paragraph 353 of these Rules, or in cases with no outstanding further submissions whose appeal rights have been exhausted and which are subject to a review, the decision maker will also have regard to the migrant's:
character, conduct and associations including any criminal record and the nature of any offence of which the migrant concerned has been convicted;
compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable;
length of time spent in the United Kingdom spent for reasons beyond the migrant's control after the human rights or asylum claim has been submitted or refused; in deciding whether there are exceptional circumstances which mean that removal from the United Kingdom is no longer appropriate."
The reasons given in the letter were:
"Character, conduct and associations:
Regard has been given to the strength of your connections in the United Kingdom. It is noted that you have no known criminal convictions however your lack of a criminal record is not considered a significant reason to allow you to remain. Therefore, for the reasons given it is not considered that your character, conduct and associations are a significantly compelling reason for you to remain in the United Kingdom.
Compliance
It is noted that you claimed asylum on 14/09/1998, this was refused on 13/11/2001 and your appeal rights became exhausted on 10/12/2002. This meant that you were then expected to make arrangements to leave the UK but you failed to do so. You have never been given valid leave to remain in the United Kingdom. You became ARE on 10/12/2002. You have not adhered to reporting restrictions. You were served with an IS96 on 03/01/2001 with instructions on when and where to report too, however you failed to comply with these instructions. Reporting is a mandatory requirement of temporary admission to enable the United Kingdom authorities maintain immigration control. After your appeal rights became exhausted, you failed to maintain contact with the UKBA and you absconded. You only came to light again in 2010 when your legal representatives made contact on your behalf. Therefore your compliance is not considered a significantly compelling reason for you to remain in the United Kingdom.
Length of residence spent for reasons outside the control of the migrant:
Regard has been given to your length of residence in the United Kingdom. It is noted that have resided here for a period of 14 years, however approximately 8 years of this was while you had no right to be in the country after your appeal rights became exhausted in December 2003 and you should have left the UK. You did not. Instead you chose to abscond and wait until 2010 to make contact with the UKBA via your legal representatives. Your length of residence has been acknowledged but it is considered that this is outweighed by the illegal residence you have accrued following his failure to leave the UK as instructed. Your length of residence is not a sufficiently compelling reason to justify allowing him to remain in the United Kingdom."
The Appellant challenged the decision of 2 February 2013 by an amended statement of grounds dated 19 February 2013. Permission to apply for judicial review was granted on 30 October 2013.
By a letter dated 1 October 2014 to the Appellant's solicitors, the Treasury Solicitor, in seeking to meet the argument that was then being advanced on the basis of the decision of this court in R (Rashid) v Secretary of State for the Home Department [2005] EWCA Civ 744, [2005] Imm AR 608, said:
"For the avoidance of doubt, it is confirmed that there was no substantive legacy decision by the CRD in 2011. The contemporaneous records do not show a decision on the database. There was no minute of decision on file. No decision letter was written and the case was passed to CAAU as an undecided case."
The grounds of challenge in the court below
These are set out at paragraph 17 of the judgment below:
"Turning then to the grounds of challenge following amendment. There are 3 grounds which need to be considered:
the claimant contends that he has suffered a "fundamental historic injustice" based upon an illegality arising from the defendant originally communicating to him and thereafter maintaining that a decision had been taken. Relying on the line of authority following R(Rashid) v SSHD [2005] EWCA Civ 744 the claimant submits that the defendant should have considered the historic injustice caused as a result of the illegality in having communicated a decision when none applied and thus in taking the decision of 2 February 2013 should have applied the more favourable 395C and its guidance to the claimant rather than the "far more stringent" paragraph 353B of the immigration rules. That failure to do so renders the fresh decision unlawful;
alternatively, the claimant contends that the decision of 2 February 2013 is flawed through a material error of fact, namely an erroneous understanding and application of the claimant's compliance with reporting requirements;
in addition, the decision of 2 February 2013 fails to take account of the claimant's Article 8 rights and in that context, there is no consideration as to whether the further submissions and evidence amount to a fresh claim in respect of the claimant's Article 8 rights in accordance with paragraph 353 of the immigration rules."
The judgment
The first issue turned on an application of the decision in Rashid, but it is unnecessary to consider the Deputy Judge's treatment of the first issue since Rashid has now been overruled by the Supreme Court in TN (Afghanistan) v Secretary of State for the Home Department [2015] UKSC 40, [2015] 1 WLR 3083.
As regards the second issue, the Deputy Judge held that the error in the letter that the Appellant failed to maintain contact and absconded from the point at which his appeal rights were exhausted in 2002 or 2003 until 2010 was not a material error. The judge said at paragraph 43:
"The defendant's description of the extent of compliance by the claimant is clearly inaccurate. The letter states that the claimant failed to mention contact and absconded from the point at which he became appeal rights exhausted in 2002 (2003, according to the letter) until 2010 a period of some 8 (7) years. In fact, the claimant was reporting for 5 of those years. At first sight therefore, it would suggest that this error could have affected the decision of the Secretary of State and the fact of absconding is also referred to in considering the length of residence. However, following the decision of the Court of Appeal in Qongwane it is clear that the discretion under 353B is intended to be exercised only in exceptional circumstances. Further, following the approach of Underhill LJ, even if the claimant had been compliant throughout the period this does not entitle him to remain and accordingly even if the letter had correctly reflected the longer periods when the claimant was reporting, in my view it cannot be said that the mistakes as to the extent of reporting and absconding had any material impact on the outcome of the decision of the defendant not to exercise her discretion and grant leave under Chapter 53 EIG. Accordingly the claimant has failed to bring himself within the test in E & R set out above and the claim on this ground fails."
It is unnecessary to say more about the third issue since it is not live in this appeal.
The issues arising in the appeal
By his amended grounds of appeal the Appellant raises two issues. He has substantially recast the first issue as it was formulated in the court below in the light of the decision in TN (Afghanistan). He now contends that there was maladministration amounting to illegality in informing the Appellant by the letter of 9 November 2011 that his case had been fully reviewed by the CRD when no such review had in fact taken place. The decision of 2 February 2013 was, therefore, unlawful and should be quashed.
The second issue is whether the judge was wrong to treat the error of fact in relation to the Appellant's failure to maintain contact for seven or eight years as immaterial.
The legal framework
Section 4(1) of the Immigration Act 1971 confers on the Secretary of State the power to grant leave to remain in the United Kingdom and to determine the period of leave. I have already set out rule 353B.
The policy concerning removal and the exercise of the residual discretion to stay removal action and grant leave to remain on the basis of exceptional circumstances was contained in chapter 53 of the Enforcement Instructions and Guidance. The overarching policy was set out at the beginning of chapter 53 in these terms:
Introduction
It is the policy of the Home Office to remove illegal migrants from the UK unless it would be a breach of the Refugee Convention or ECHR, or there are exceptional circumstances for not doing so in an individual case. Separate guidance exists on how to consider an asylum claim or an application for leave to remain on the basis of family or private life. This guidance concerns further exceptional circumstances claiming that removal would be inappropriate."
Paragraph 53.1.1 is entitled "exceptional circumstances - relevant factors". The relevant factors are set out under three headings which mirror the three limbs of rule 353B. It states, however, that the list is not exhaustive.
The first issue
The Appellant's case is that the communication to the Appellant by the letter dated 9 November 2011 that his case had been fully reviewed and that he had no basis for staying, taken together with the later admission that no decision had in fact been taken by that time, was an act of maladministration amounting to illegality. This illegality was a material factor requiring consideration under rule 353B and chapter 53 of the guidance. The maladministration, the length of his residence in the United Kingdom, the fact that he had complied with his reporting obligations for most of the relevant period and that he was destitute for much of the time that he spent here cumulatively amounted to "exceptional circumstances" which should have led to the discretionary grant of leave to remain.
Although in the course of her oral submissions Miss Braganza emphasised that she was relying on the cumulative effect of these factors, her amended grounds focussed heavily on the effect of the misstatement in the letter of 9 November 2011 that the Appellant's case had been reviewed. Indeed, Vos LJ was only persuaded to grant permission to appeal to this court because he considered that there was:
"a real prospect of success on the question of whether there was maladministration amounting to illegality in relation to the communications concerning whether or not a decision had been made."
Even if it is apt to describe the statement in the letter of 9 November 2011 that the case had been reviewed when it had not been reviewed as "maladministration", there are two principal reasons why, in my view, this cannot avail the Appellant.
First, I do not accept that the misstatement was "illegal". When asked why it was illegal, Miss Braganza's response was that the question of whether the Appellant's case had been reviewed and determined was a matter of great importance and seriousness to him. I have no doubt that it was, but that is not a reason why as a matter of law the misstatement was illegal. Administrative mistakes are made all the time, but the fact that they are mistakes, even serious mistakes, does not without more make them illegal.
In R(S) [2007] EWCA Civ 546 at paragraph 41, Carnwath LJ said:
"The court's proper sphere is illegality, not maladministration. If the earlier decisions were unlawful, it matters little whether that was the result of bad faith, bad luck, or sheer muddle. It is the unlawfulness, not the cause of it, which justifies the court's intervention and provides the basis for the remedy. Conversely, if the 2004 decisions were otherwise unimpeachable in law, I find it hard to see how even flagrant incompetence at an early stage should provide grounds for the court's, as opposed to the Ombudsman's, intervention."
I agree with this passage. It seems to me that there is a significant distinction between illegality and maladministration.
Secondly, I agree with what King J said in Geraldo and Others [2013] EWHC 2763 at paragraph 29 in a passage which was quoted by the Deputy Judge at paragraph 18 of her judgment:
"What is clear from all these authorities, in my judgment, however, is that (1) the historic injustice must be based upon some prior illegality. In all these cases there was either a legally flawed prior decision. In some instances, such as in Rashid, by reason of a decision made in disregard of a relevant policy or at least a legally flawed failure to carry out a duty, as in KA, which impacted upon the ability of the Applicant to make out an asylum claim and there must be sufficient causal connection between that illegality and the alleged historic injustice caused thereby and the alleged prejudice caused to the Claimant by the decision under challenge to justify the intervention of the court. Considerations of conspicuous unfairness are not in themselves a relevant test to trigger the intervention of the court, although the degree of prejudice may be a relevant factor when it comes to the question of remedy."
Although this was said in the context of applying Rashid, the reasoning remains valid despite the overruling of that decision.
In my view, a mistake of the kind that occurred in the present case is not capable of being an exceptional circumstance justifying the grant of leave to remain outside the Rules if the mistake has not adversely affected the Claimant. In the present case the misstatement did not adversely effect the Appellant in any way. Even if he had been misled by the letter of 19 November 2011 into believing that his case had been reviewed, that could not have availed him because the error would not have caused him to suffer any prejudice.
On the facts of the present case, however, his case is weaker still because, as we have seen, knowing that he had not received notification of a decision, he assumed that the statement in the letter was a mistake, as indeed it was, and the CAB who were advising him were not misled by the letter either.
For these reasons, I consider that the misstatement in the letter of 9 November could not have been an exceptional circumstance within the scope of rule 353B and the guidance, nor could it have been an exceptional circumstance even if it is considered in conjunction with the other factors relied on by Miss Braganza. There was nothing exceptional about those other factors.
As Sir Stanley Burnton said in Qunwane [2014] EWCA Civ 957 at paragraph 24, the scope of the exercise of the discretion envisaged by rule 353B is narrow. The discretion is a safety bar which will be exercised in circumstances which "will necessarily be rare".
The long residence since 2002 is plainly not relevant. Rule 353B and chapter 53 of the guidance make it clear that length of time spent in the United Kingdom may only be considered as a factor if the time has been spent for reasons beyond the Claimant's control. In the present case there was nothing to prevent the Appellant from leaving the United Kingdom once his appeal rights were exhausted in December 2002.
The second issue
The Deputy Judge dealt with this issue at paragraph 43 of her judgment, which I have already set out. Miss Braganza submits that this conclusion is irrational and not in accordance with basic principles of public law. She says that, in effect, the Deputy Judge concluded that, regardless of how factually incorrect the Secretary of State's letter and how irrelevant considerations wrongly taken into account, the Appellant's case could never fall to be considered under rule 353B.
She submits that Qunwane should not be understood as sanctioning the dispensing with the requirements of public law that material considerations are taken into account and irrelevant considerations are disregarded when applying rule 353B.
Miss Braganza submits that the circumstances of this case were too complex for the court to impose its own view and to conclude that there was only one possible conclusion on the facts. The case should have been remitted for a reconsideration on the correct basis as to the extent of the Appellant's compliance with his reporting obligations.
In her skeleton argument, Miss Anderson submits that the circumstances relied on by the Appellant were not exceptional. Moreover, there were significant adverse factors that weighed against the discretionary grant of leave pursuant to rule 353B. There was no dispute that the Appellant had entered the United Kingdom illegally, circumventing immigration control. He had made an unfounded asylum claim. He had failed to leave the United Kingdom as required when his appeal rights were exhausted. There were no compelling reasons to outweigh these adverse factors. The failure to comply with reporting was an additional factor weighing against the grant of leave to remain.
I accept these submissions. Bearing in mind the narrow scope for the exercise of the discretion confirmed by rule 353B, in my view it is inconceivable that a different conclusion would have been reached even if it had been made on the basis of a correct appreciation of the extent of the Appellant's compliance with his reporting obligations.
I agree with the assessment of the materiality of the error made by the Deputy Judge. At the very least it was an assessment she was entitled to make and one with which this court should not interfere.
I should add that I agree with Miss Braganza that Qunwane does not give a green light to the wholesale disapplication of public law principles in this area of immigration and asylum law. It is, however, authority for the proposition that the discretion to grant leave to remain outside the Rules is exceptional and will rarely be exercised.
For all these reasons, I would dismiss this appeal.
LORD JUSTICE TOMLINSON: I agree.
LORD JUSTICE SALES: I also agree.