Adam, R (On the Application Of) v Secretary of State for the Home Department

Friday, 3 October 2003

1. THE DEPUTY JUDGE: This is an application for judicial review of a decision given on 8 January 2003 by the Secretary of State finally responding to a claim made much earlier on behalf of the claimant that he had been, or ought to have been, given four years exceptional leave to remain in the United Kingdom. The Secretary of State rejected that proposition and by this application for judicial review it is sought to challenge that decision.

2. The background facts are as follows. The claimant, Mr Adam, is a national of Somalia. He arrived in this country on 28 June 2001 and claimed asylum as a refugee in this country. He had solicitors in London assisting him at that time.

3. On 14 August 2001 documents were sent to those London solicitors responding to Mr Adam's claim for asylum. It is now possible to reconstruct the fact that four documents were sent. First, there was a covering letter from the Home Office dated 14 August 2001 in which it is stated that his asylum claim had been refused, but:

"It has been decided, however, that it would be right, because of the particular circumstances of your client's case, to grant him exceptional leave to remain in the United Kingdom for four years."

The second document is a document headed "Grant of Status Exceptional Leave to Remain", which has a Home Office date stamp, again 14 August 2001. Again the first paragraph of the letter says his asylum claim has been refused but:

"It has been decided, however, that it would be right, because of the particular circumstances of your case, to grant him exceptional leave to remain in the United Kingdom until 14 August 2002."

It will be observed that that was the grant of one year's exceptional leave to remain. That letter, which is a standard form letter for the grant of leave to remain to people who are being given exceptional leave, concluded under the heading "Passport":

"Your passport is enclosed and endorsed with leave to remain until 14th August 2002. Any application you make for further leave to remain will be carefully considered."

4. It is common ground that that provision in the standard form letter was an error since no passport as enclosed endorsed with leave to remain until 14 August 2002. It was equally common ground that this letter, the status letter, is indeed the grant of leave to enter or remain in the United Kingdom as required by the Immigration Act 1971 sections 2 and 3 taken together. This is the notice in writing referred to in that statute.

5. There were two other letters sent on the same day. The first was the formal decision refusing asylum that gives rise to the right of appeal to an adjudicator against that refusal. In the course of that formal decision, again it is stated:

"The Secretary of State therefore grants you leave to remain until 14 August 2002."

The rubric is similar because of the exceptional reasons in the case.

6. Finally, there was served on that same date the written reasons (going on for some three pages) why asylum was refused. That letter has no particular bearing on the present problem since it does not refer to the grant of exceptional leave to enter or remain in the United Kingdom. To pause there, the position is that any reader of those four documents would have seen one letter granting him leave to remain for 12 months, one formal decision stating that he had been granted leave to remain for one year and one covering letter saying that he was to be granted leave to remain for four years. At best, that was a confusing state of affairs, although in law, in my judgment, it is reasonably clear that he had been granted leave to remain for 12 months.

7. The evidence, filed on behalf of the defendant in this case in a witness statement of Michael Higgins sworn on 30 June 2003 and served on the claimant's solicitors shortly thereafter and received certainly in July 2003, takes the matter a little further forward. In paragraph 8 of that witness statement it was said that an attempt was made to repair and clarify the problem:

"... in sending out a further covering letter on the same date clarifying that one year Exceptional Leave to Remain was being granted."

It appeared that on 14 August 2001 (there was an error in the witness statement which both parties agree can be corrected to 2001) that a correct covering letter recording that exceptional leave to remain for one year only was being issued. There is attached to that witness statement another standard form covering letter which indeed is in virtually identical terms to the first of the documents that I have referred to in this judgment, but states: "It has been decided to grant him exceptional leave to remain for one year."

Although I understand that the claimant's present solicitors have no record of this second covering letter being on the file, there is no evidence to suggest that it was not in fact received by the original solicitors, Tayo Arowojulu. As will become apparent there has been a change of representation in around the autumn of 2001.

8. So accepting that the Home Office statement, which is unchallenged, is accurate, the recipient of all those communications would now have had a further letter at some point I presume after 14 August 2001, seeking to give a covering letter which is consistent with the grant of leave that was actually granted.

9. Miss Weston, who appears for the claimant before me, points out that the second covering letter did not expressly refer to an error that was being corrected. I take that point. Nevertheless it was an attempt to render the covering letter in conformity with the leave that was granted.

10. For reasons related to the fact that the claimant had been dispersed away from London, it appears that he did not actually receive these letters until September 2001 when he wanted to know what had happened and was advised to go to London and to obtain them. Shortly thereafter he instructed his present solicitors, who are in Newcastle (which is where he had been dispersed to) and on 16 November 2001 they wrote in these terms:

"We refer to two letters received from you and sent to our client in August of this year. These letters are entirely inconsistent. One letter refers to our client having been given four years exceptional leave to remain in the United Kingdom. The second letter, the grant of status refers to our client only having one year of exceptional leave to remain.

There would appear to have been a mistake and since our client has been told that he has been granted exceptional leave to remain for a period of four years he has a legitimate expectation that four years will be granted to him."

I pressed Miss Weston about the nature of that letter and I think in fairness she accepted that there would be difficulties in sustaining the submission of law that the history of the matter as of that date did give rise to a legitimate expectation. The letter itself indicates that there has been a mistake. Three of the four letters that would have been sent by that date would have referred to one year. That was the leave that was actually granted, and only one covering letter, which appear to have been replaced by a second shortly after it was issued, gives rise to the confusion. At the very best, all it could be said on behalf of the claimant was that there was a confusion and some uncertainty. It is common ground that an ambiguous state of affairs, confusion, or a mistake does not give rise to legitimate expectation: there must be an unambiguous representation before the case goes any further.

11. I also indicate that it is not any part of the claimant's case that in August 2001 he had been treated differently from any other failed Somali asylum seeker. It might have been the case if there was a policy in always granting exceptional leave to remain to Somali failed asylum seekers for a period of four years that an unusual departure from that policy of granting only one year to one individual might itself have given rise to legal issues. That is not the basis of the case; and it is apparent from the documents that are before the court that although at one time in the past failed Somali asylum seekers did in fact receive four years exceptional leave to remain that policy had changed by August 2001. The precise date of the change is not made clear in the evidence because it was never necessary to respond to this, but there is an email of 17 August 2001 indicating the change and it was announced to the Immigration Law Practitioner Association in September 2001. I simply refer to that as a point which is not taken as founding a legitimate expectation.

12. It is a matter of considerable regret that the Home Office did not respond to the solicitors's letter of 16 November 2001 for a long time, and the only response which was finally given was in January 2003 giving rise to this application. However in the course of 2002 those solicitors sought the assistance of the constituency MP for the relevant part of Newcastle. I say the relevant part because there appears to have been some uncertainty as to which MP was engaged. It is unclear precisely what was placed before the MP by way of representation, but it does appear from the evidence that two Members of Parliament successfully made a telephone call to the Home Office official on the line provided to Members of Parliament to do that.

13. On 8 April 2002 Mr Jim Cousins MP wrote to the second solicitors, Browell Smith & Co of Newcastle, quoting the client's name and reference number, stating:

"I have been informed by the Home Office that exceptional leave to remain has been granted to Mr Adam for a period of four years, until 18 August 2005. I hope this clarifies matters for your client."

Reliance is placed on that evidence.

14. However matters continued because there was further communication as the solicitors were concerned as to whether this period of extended exceptional leave beyond the one year that had been granted had indeed really been granted to their client and they made further representations to Mr Celland MP, another Newcastle MP, who appears to have been the MP for the claimant.

15. On 4 December 2002 eight months after the letter from the first MP the second MP wrote:

"Just to confirm that I have approached the Home Office to clarify Mr Adam's status in writing - verbally, I have been told that he has been granted four years ELR."

By 13 January 2003 the MP was writing again, this time to Mr Adam himself again, to.

Say: "As you know, I contacted the Home Office on your behalf seeking clarification on whether you had been given one year's leave to remain or two.

This was the letter written to Mr Adam himself.

"I am enclosing a copy of the letter I have received by way of reply which states, as you will see, that the Home Office 'has no record' that you were granted four years' leave to remain.

I am afraid that it looks as though you have only been granted one year's leave to remain. Nevertheless, I have replied to the Home Office enclosing a copy of the letter giving four years' leave to remain, and asking for further comment."

A further comment emerges on that letter from the MP which was referring to a letter he had received on 8 January 2003, which is the letter which is the subject of this challenge. That letter repeats that in August 2001 the appellant had been granted exceptional leave to remain until 14 August 2002.

16. That completes the history of the matter, and it will be seen at once that this is an unfortunate history. First, there was excessive delay by the Home Office in responding to the solicitors's letters; secondly, on two occasions two separate Members of Parliament were left with the impression that Mr Adam had been granted four years' leave to remain and communicated that fact to his representatives. It is, however, common ground, that the letters sent by both MPs were inaccurate in that Mr Adam had never been granted four years' leave and an oral statement made to an MP that he had been granted leave to remain for four years is not a grant of leave, and it is not a notice in writing provided by the Home Office as required by the Immigration Act 1971. So once again there has clearly been a mistake. It is idle to speculate as to how the mistake occurred, whether it was based upon some misunderstanding by the Members of Parliament and what they have been told or, as seems somewhat more probable, it was based upon a misunderstanding by whoever they spoke to on the MPs' hotline as to what the real position was with respect to Mr Adam.

17. Miss Weston submits that, taking the matter by December 2002, the oral representations by someone in the Home Office to the MPs was sufficient to found a legitimate expectation in Mr Adam that he had been, or ought to be, granted four years' exceptional leave to remain and not the one. In my judgment, despite the regrettable confusion in this case, that is not so. A legitimate expectation again needs to be based on a clear and unambiguous representation. Here, Mr Adam had not received any representation at all directly from the Home Office, and instead only a report, an oral representation by the official at the Home Office through the MPs which, on any view, was wrong and was known to be wrong by the solicitor, hence they continued to press the matter.

18. It would have been very different, of course, if the Home Office had at that stage responded by sending a letter purporting to grant four years' leave to remain and they may well have been bound by such a decision. But they did not. In my judgment, whatever the precise dimensions of the developing doctrine of legitimate expectation it cannot found an expectation in this case on that material that would be legitimate and one to which the court would give weight in any declaratory relief that is sought.

19. I therefore dismiss this application for the relief sought because it was not founded upon primary evidence in the case.

20. There is one matter, however, which has caused the court concern and which I have ventilated with counsel. It appears to me that the failure by the Home Office to respond to the solicitors' early correspondence seeking to clarify the matter and the understandable impression created upon the claimant and his solicitors by the information twice given by responsible Members of Parliament, Mr Cousins and Mr Clelland, might well have caused the claimant not to apply for an extension of his one year's exceptional leave to remain in time in the understandable belief that he was about to be given four years' leave to remain, although, as my judgment made plain, he had not in fact been given it. I understand that the Home Office are presently considering an out of time application for an extension of exceptional leave to remain because clearly the original 12 months has long expired on 13 August 2002.

21. I know not how the Home Office will respond to that application, that being entirely a matter for them what the position is in Somalia as to whether a one-year extension or an extension for a different period would otherwise be required according to the terms of its present policy and the state of affairs in Somalia. But in the event that that out of time application for an extension is refused, the court would be concerned that in the unfortunate sequence of events described in this judgment, Mr Adam is not prejudiced in respect of any appeal rights that he may have against a refusal of an extension of stay. In those circumstances I invite the Home Office to consider a grant of one month's leave to remain simply so the position could be recognised and he would not be prejudiced. That, of course, was the practice which occurred in the 1970s when it was first realised that an immigrant needed to have an extant leave in order to be able to lodge an appeal against a refusal of leave. That is somewhat far down the line and depends on the substantive application, for an extension of exceptional leave may be refused. I know not whether that would be the case, but I hope those remarks would be drawn to the attention of the Home Office in the event that I have outlined, but for reasons I have given the application is dismissed. Are there any other consequential submissions I should deal with?

22. MISS WESTON: My Lord, just detailed assessment.

23. THE DEPUTY JUDGE: Yes. Thank you very much.