Baser, R (on the application of) v Secretary of State for the Home Department

The Claimant is a Turkish national who arrived in the United Kingdom in August 2004. He was born on 14 April 1975 and is thus now 37 years of age. He made an asylum application which was refused on 18 May 2005. There was no appeal.

No attempt was made by the Claimant to regularise his stay in the United Kingdom by making any further application for leave to remain. There was no communication with the immigration authorities and he was listed as an absconder from 26 April 2006. It appears, however, that he remained in the country illegally until his solicitors wrote to the UKBA on his behalf on 1 February 2010. That letter was acknowledged on 12 February. Further letters were written to the Secretary of State on 25 March and 7 April 2010. On 13 April of that year a letter was written on behalf of the Secretary of State to confirm that the Claimant’s file was in a queue and that it was hoped to resolve his status by July 2011. Meanwhile, with effect from March 2010, the Claimant began to sign in weekly at a police station and he has continued to do so regularly thereafter.

Changes of address were notified on the Claimant’s behalf on 13 May 2010 and 15 August 2011.

On 17 August 2011 the Claimant was invited by letter to attend an interview, which took place on 31 August of that year in Hull. Shortly thereafter, on 13 September, the Claimant was arrested with a view to his removal and he was served with an undated refusal notice. On 19 September 2011 a claim form was issued on his behalf seeking judicial review and, two days later, Lindblom J directed that the Claimant should not be removed from the jurisdiction.

Ms Geraldine Andrews QC granted the Claimant permission to proceed on 31 October 2011, following which his position was reconsidered by the Secretary of State and a further letter sent on 9 December 2011 confirming that leave to remain was refused.

A hearing took place before me on 27 November 2012 at which I indicated that the Claimant’s application was refused and that I would give my reasons in writing. I now do so.

The original grounds for judicial review are somewhat confusing but essentially complain that the letter served on 13 September 2011, while purporting to be a refusal letter, contained no adequate explanation. It was said at paragraph 8 of the application:

“The letter simply states the Claimant has no basis of stay in the UK. Whilst this is correct, it does not denote the fact that his case was waiting for consideration by the UKBA under the Legacy and the Claimant qualifies under the Legacy. A person with no basis of stay in the UK still qualifies for status under the Legacy. The Claimant is entitled to Indefinite Leave to Remain (ILR) under the Legacy. There is no reason why he should not be granted this status. The UKBA has not explained why they have allegedly refused to grant the Claimant ILR and why he does not qualify under the Legacy. This is a direct breach of the Claimant’s human rights.”

This reasoning would thus appear to perpetuate what seems to have been a common misapprehension about “the Legacy”. The background was subsequently explained by Burton J in Hakemi v SSHD [2012] EWHC 1967 (Admin) at [1]-[4]:

“1.

… By the end of 2006, there was a massive and unmanageable backlog of asylum/human rights applications, by which the Defendant was overwhelmed. Collins J addressed some of the problems in his judgment in FH & others v SSHD [2007] EWHC 1571 (Admin) (5 July 2007). The decision was taken to transfer some 500,000 outstanding applications received prior to 5 March 2007 to a specially constituted team of some 950 caseworkers, the Casework Resolution Directorate (‘CRD’), which would work through those cases and endeavour to grant or refuse leave to remain by July 2011.

2.

By July 2011 there was a rump of some 116,000 cases, consisting in part of 18,000 still active cases and in part of what was called a ‘controlled archive’ of some 98,500 cases where for one reason or another there were particular difficulties in investigation. The remaining active cases and the controlled archive were transferred, in July 2011, to a new body, consisting of a team of some 90 caseworkers, who were to continue to work on them and resolve them, the Case Assurance and Audit Unit (‘CAAU’). In respect of three of the four Claimants before me their cases were considered and resolved by the CRD (decisions being given in October and November 2010): that of the Fourth Claimant was passed to the CAAU and decided in July 2011.

3.

Permission was granted for judicial review in the four cases upon grounds not all of which have, in the event, been pursued, and [counsel] has, at my suggestion, formulated, without opposition from [counsel], for the respondent, Amended Grounds, succinctly setting out the heads of arguments for a claim on which he now relies.

4.

It is worth setting out what case is not pursued:

(i)

It seems that at an earlier stage it was suggested that the reference of the Legacy Cases to the CRD and/or the CAAU amounted to an ‘amnesty’, of whose benefit the Claimants sought to argue they had been deprived by their applications being refused. That is not now pursued. Although the Legacy process, over its five years or so of operation, did result in considerably more grants than refusals, there was no amnesty, and none is now alleged.

(ii)

It was also suggested that there was a case of ‘inconsistent treatment’ by comparison with the decisions given in other cases. That too is not now pursued.”

The arguments raised in the present case bear a distinct resemblance to those not pursued in Hakemi. In particular, I have before me a witness statement from Mr Emel Hussein, the solicitor who has been acting for the Claimant since January 2010. Its main purpose was to demonstrate, in the light of his experience in his own practice, that there has apparently been no consistency of practice:

“ … I have observed that since the introduction of the legacy policy the Defendant CRD was routinely granting ILR to all of my legacy clients. In particular, to the best of my knowledge, I have individual clients who had overstayed in the UK following the refusal of their asylum claim and have lived in the UK for between 6 to 8 years and have all been granted ILR.

…

I have noticed following the July 2011 deadline the CAAU’s (and the CRD as in this case) consideration of similar cases as above has changed considerably. The CAAU are routinely sending standard refusal letters giving no explanation for the refusal, simply stating the applicant has no basis of stay in the UK. Even to applicants who have also lived in the UK for between 6 to 8 years.”

His concluding submission is that the Defendant’s caseworkers are not correctly following the appropriate guidelines for the consideration of Legacy cases. He argues that the quality of decisions has, since July 2011, been “poor and inconsistent”.

Ms Olley, appearing for the Defendant, has submitted that it would not be appropriate for the court to draw a general conclusion as to alleged inconsistency simply on the basis of anecdotal or generalised evidence. In order to see whether one case is truly comparable with another, and/or consistent with it, it would be necessary to have access to all the files and compare the individual circumstances of the relevant applicants. That must be right.

Ms Andrews QC, when granting permission to this Claimant, explained her reasons as follows:

“C, a detained national of Turkey, is a failed asylum seeker who chose not to appeal, absconded, and made no attempt since his application for asylum was rejected in [2005] to obtain lawful leave to remain in the UK. He seeks permission to judicially review the alleged refusal by the SSHD to consider his claim under the Legacy Programme. Whilst it is right that C’s claim of an ‘entitlement’ to indefinite leave to remain under the Legacy Programme is misconceived, and it appears clear from the evidence that his position was considered under the Legacy Programme and it was confirmed that he had no lawful basis of leave to remain in the UK, there is nothing in the decision letter served on C on 13 September 2011 to indicate that any consideration was given to whether he should be granted leave to remain as a matter of discretion and, if such consideration was given, why it was decided not to exercise that discretion in his favour (including consideration of his rights, if any, under Art 8 ECHR). The absence of proper or sufficient reasoning for the decision is enough for this claim to cross the permission threshold.”

It is thus clear that the only basis upon which permission was granted was the submission that fuller reasons should have been given to explain the outcome of the consideration leading up to the letter served on 13 September 2011.

It is the Defendant’s case that the Legacy Programme was designed for the purpose of processing old asylum cases, which had already been considered, but where the applicant remained for one reason or another in the United Kingdom. In some cases, consideration under the Programme would simply lead to a confirmation, where no further applications or submissions had been received, that the applicant in question still had no basis for leave to be granted and thus should be removed. Since this would be merely confirming the status quo, in such cases, no reasons would be needed. The Defendant would ex hypothesi be making no fresh decision such as to require reasons.

The mere fact that an applicant was being considered under the Programme did not entail an immigration decision. This would only arise if a fresh application had to be considered. As is clear from the judgment in Hakemi, there was no question of an amnesty or indeed a right to remain, arising automatically, merely because someone has been in the United Kingdom for a specified number of years. The Secretary of State has a broad discretion. It was, however, recognised in that case, consistently with the evidence of Mr Hussein here, that over the five or so years of its operation the Legacy process did result in significantly more grants of leave to remain than refusals.

Reference has been made to paragraph 395C of the Immigration Rules and to Chapter 53 of the UKBA Enforcement Instructions and Guidance (EIG). It is important to note that this Claimant was an illegal entrant and that paragraph 395C accordingly has no direct application to his case. Nevertheless, even in such cases, it has been recognised that it would be relevant for caseworkers to have regard to the considerations listed in Chapter 53, as guidance, while always remembering that the discretionary exercise requires a “holistic” evaluation of cases based on a range of factors – both positive and negative: see e.g. Hakemi at [8] and [15]. This reflected evidence then before the court from the Assistant Director of UKBA.

The non-exhaustive list of relevant factors to be taken into account under paragraph 395C includes:

In the present case, no evidence has been adduced as to the Claimant’s connections with the United Kingdom or to any domestic circumstances such as might engage consideration under Article 8 of the ECHR. The sole factor which has been relied upon is the length of his residence in the United Kingdom. It is submitted on his behalf that residence of between six and eight years would, in itself, ordinarily justify the grant of indefinite leave to remain. As I have already recorded, however, during the period between April 2006 and January 2010 he was an absconder. The Defendant argues that he should not be permitted to take advantage of that status – even if the general proposition were correct.

Following the grant of permission by Ms Andrews, the Claimant was given an opportunity to make further submissions, so that they could be taken into account when the Defendant was giving further consideration to his case. That opportunity was not taken up. Accordingly, nothing having changed, a letter was sent dated 9 December 2011 explaining that the Defendant had decided that the Claimant did not qualify for discretionary leave under the Legacy Programme.

The passage in the letter concerned with length of residence was in these terms:

“Your client’s length of residence in the UK has been considered. It is noted that he has lived here for 7 years and 3 months. However he has never had any leave to enter or remain in the UK. Following the refusal of his asylum claim in 2005 your client did not appeal that decision or comply with reporting restrictions. He was listed as an absconder on 26 April 2006 and made no attempt to contact the Secretary of State or regularise his immigration status. It is not considered that your client should be entitled to a discretionary grant of leave to remain now on the basis of length of residence when that residence is a direct result of his deliberate evasion of authorities for many years. It is therefore considered that your client’s length of residence is not a sufficiently compelling reason to justify allowing your client to remain in the UK.”

The Claimant has had every opportunity to make a fresh application and/or to submit further grounds to the Defendant, but he has simply chosen not to do so. Against that background, it is difficult to see why the reasons contained in the letter of 9 December 2011, and specifically those contained in the passage quoted above, are in any way insufficient. The length of residence was considered fully and it cannot be said that there was any other relevant consideration which was not taken into account.

I do not accept that the Defendant’s decision was in any way flawed and the application was accordingly rejected. It was totally without merit.