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

MR JUSTICE HICKINBOTTOM: The Claimant Sadeq Askaravi is an Ahwazi Arab who is a national of Iran, where he was born on 26 September 1976.

His immigration history is protracted. In the Claimant’s case, I do not say that pejoratively - none of the delays can be laid at his door - but the delay in determining his application for leave to remain is at the heart of this claim. He says that, but for that delay, the result of his application for leave to remain would have been different and more beneficial for him.

He arrived in the United Kingdom on 24 April 2004, and claimed asylum on the basis that he had been involved with the Ahwazi Arab People's Democratic Popular Front, graffitiing walls and distributing leaflets in Arabic encouraging Arabs to assert themselves against the Iranian government. He said that, in July 2004, he had been arrested whilst performing those activities; and had been detained and subject to ill-treatment for three days in the form of being kept in extreme heat, blindfolding and beatings, before his brother paid a bribe to obtain his release. That led to his flight to this country. Those essential facts were accepted by the adjudicator who heard his first appeal, and later tribunals have done nothing to undermine them.

That first application for asylum was refused on 26 August 2004, and his appeal was dismissed by an adjudicator on 13 January 2005. However, that was set aside following a reconsideration, and the appeal was reheard. Again, it was unsuccessful; but, again, that tribunal decision was itself set aside after the Court of Appeal had granted permission to appeal.

Following the production of further evidence from the Claimant's brother, and a hearing before Stadlen J in the Upper Tribunal, on 16 June 2010the Secretary of State issued a supplementary decision letter, which confirmed that the Claimant's application for leave was refused on the basis, amongst others, that his removal would be appropriate even taking into account the factors set out in paragraph 395C of the Immigration Rules. That decision letter formed the focus of another appeal hearing before the Upper Tribunal, before a tribunal comprising Senior Immigration Judges Perkin and McKee over which, entirely coincidentally, I presided. The Claimant's appeal was allowed on asylum and human rights grounds. That effectively entitled the Claimant to leave to remain.

On 11 November 2011, the Secretary of State granted the Claimant limited leave to remain as a refugee for 5 years. In this judicial review, with the permission of His Honour Judge Oliver-Jones QC sitting as judge of this court, the Claimant now challenges that decision on the basis that he ought to have been granted indefinite leave to remain.

Before I consider the grounds upon which the Claimant relies, it would be helpful briefly to deal with the policy and the mechanism under which the Secretary of State has dealt with asylum claims.

The grant of leave to remain in the United Kingdom, and the period of any such leave, rests solely within the discretionary power of the Secretary of State, exercised through Immigration Officers (section 4(1) of the Immigration Act 1971). Given the nature of that power and the area in which it is exercised, the Secretary of State has a wide margin of discretion in its exercise, which includes a broad discretion in how applications should be administered (see, e.g., AL (Serbia) v Secretary of State Home Department [2008] UKHL 42 at [8], per Lord Hope).

To enable some degree of consistency, decision-makers on behalf of the Secretary of State exercise their discretion in accordance with the Immigration Rules and guidance issued by the Secretary of State in the form of Asylum Policy Instructions. The Rules have been properly described as "statements of administrative policy: an indication of how at any particular time the Secretary of State will exercise her discretion with regard to the grant of leave to enter or remain", and which, "when promulgated, indicate how it is proposed to exercise the prerogative power of immigration control" Odelola v Secretary of State Home Department [2009] UKHL 25 at [35], per Lord Brown. The Secretary of State is not only entitled (see EF v Secretary of State for the Home Department [2010] EWCA Civ 203 at [27], per Richards LJ) but, it seems to me, bound to have regard to that policy and guidance when deciding matters relating to leave, including the length of any leave granted.

The Secretary of State, of course, must comply with her obligations under European Council Directive 2004/83/EC (the Qualification Directive), which requires a minimum of 3 years leave to be given to someone granted refugee status. Under the cross heading "Content of International Protection", article 20(3) and (4) provide as follows:

As I have indicated, the Claimant claimed asylum in July 2004, and that application was refused the following month. At that time, the Secretary of State's policy was to grant those with refugee status indefinite leave to remain. However, by October 2006, that policy had changed, so that those given asylum would, save in the most exceptional circumstances, be granted not indefinite leave to remain but 5 years leave to remain.

Paragraph 339Q(i) of the Immigration Rules now provides as follows:

In terms of process, the Secretary of State has, over the last 15 years, faced very high volumes of applications for asylum. By 2006, there was a backlog of about half a million applications. To deal with this administrative problem, the Secretary of State set up a separate unit, the Casework Resolution Directorate, of nearly 1000 staff, which dealt only with the historic cases, whilst other units dealt with new applications as they came in.

Relatively, and indeed in absolute terms, that led to delays for those with historic applications. But given the wide discretion that the Secretary of State has in administering applications for leave to remain, the process was found to be lawful by Collins J in FH v Secretary of State for the Home Department [2007] EWHC 1571 (Admin).

The aspiration was to deal with the backlog of cases within 5 years, i.e. by July 2011. By that time, just under 500,000 cases had been concluded, by the grant of leave (172,000), removal (38,500) and/or closure of file for other reasons (usually because the applicant could not be found) (268,000). Of those granted leave, some were granted refugee status. For others, it was simply regarded as inappropriate to remove them from the United Kingdom in the light of the length of time they had been here and their other circumstances(i.e. the factors set out in paragraph 395C of the Immigration Rules) and, consequently, they had been granted leave on that basis. Of the group who could not be found, just under 100,000 were placed in a controlled archive on the basis, as I understand it, there was reason to believe they might resurface. About 18,000 cases remained outstanding at that time, in the sense the applicant had not been granted leave, removed or lost. The Directorate was closed in September 2011, and the outstanding cases and those in the controlled archive were passed to a new unit, the Case Assurance and Audit Unit in Liverpool.

For all those figures, I am indebted to the witness statement of Neil Forshaw, the Assistant Director of the UK Border Agency, dated 11 May 2012.

An additional statistic is relevant. Information released in March 2011, following a freedom of information request, indicated that of those granted leave, approximately 97% were granted indefinite leave to remain, and only 3,405 limited discretionary leave. Mr Forshaw in his statement accepts that, although not inevitable, most frequently indefinitely leave to remain was granted. Statistically, that clearly was the case.

These administrative arrangements were referred to as "the legacy programme", and the cases that fell within those arrangements as "legacy cases". However, it is important to mark that in these arrangements, although having their own internal priorities and procedures, applications for the leave were determined by reference to the same criteria as cases determined by other units. The programme did not create any new substantive rights, or new basis, for the grant of leave.

With that background, I now turn to the grounds of challenge upon which the Claimant relies.

First, Miss Naik for the Claimant, conceding that the 5-year leave rule is lawful as a general policy, submitted that the Secretary of State had failed properly to consider the Claimant's specific case for indefinite leave to remain, either under the most exceptional proviso in the policy itself or outside policy. She submitted that, despite the wording of the policy, in exercising the discretion in relation to type and length of leave, a decision-maker on behalf of the Secretary of State was bound to consider all the circumstances, and could not properly be restricted to the most exceptional circumstances proviso in the policy itself.

However, in my view, there is nothing wrong with a policy that indicates a norm which enables decision-makers to approach cases in a consistent and administratively efficient way, subject to exceptional circumstances (see TT (Sri Lanka) v Secretary of State Home Department [2011] EWHC 1701 (Admin) particularly at [33] and [35], per Davis J (as he then was)). Nothing in the Directive - which requires only a 3-year minimum period of leave - or the common law requires a different approach. The proviso in terms of “exceptionality” means, as Davis J said (at [37]), something "significantly outside the norm", which effectively reflects the wide discretion the Secretary of State has in this area.

Mr Najib, for the Secretary of State, submitted that, reflecting article 20 of the Directive which I have quoted, to meet that threshold a person must, as a necessary prerequisite, be a vulnerable person with special needs. Although not determinative in this case, I am not sure that that is the correct interpretation of the guidance, which seems to say that any circumstances, if most exceptional, will do. The reference to specific situations of vulnerable people, with special needs, appears to relate to the need to seek the advice of a senior case worker. However, as the point is not determinative in this claim, I expressly leave it open. In the Claimant's favour, I will assume that any circumstances which, taken singly or in aggregate, are most exceptional will suffice.

Miss Naik's main submission ran as follows. The Claimant's case for leave to remain because he could not be removed in light of factors listed in paragraph 395C, was considered in June 2010. If it had then been considered properly, in accordance with Hakemi v Secretary of State Home Department [2012] EWHC 1967 (Admin), the Claimant would have been granted leave to remain. In Hakemi, Burton J held that, once an asylum applicant has been resident in the United Kingdom for 6 years, under the policy of the Secretary of State, "everything else being equal", he should be granted leave to remain. Had he been granted leave then, in June 2010, Miss Naik submitted it is very likely that he would have been granted indefinite leave to remain.

Pre-July 2011, it seems that those who were granted leave, not as refugees but following consideration under rule 395C, were usually granted indefinite leave to remain. At that date, July 2011, that policy changed. From then such individuals have been granted 3 years discretionary leave. Miss McNulty, in her statement of 15 February 2013 at paragraph 18, said that indefinite leave to remain for such applicants was considered over generous. Miss Naik proceeded to submit that the Claimant had been granted asylum, so that the reason for that restriction did not apply to him.

Although the Secretary of State must consider the length of leave in accordance with her current policy, as part of that exercise she is bound to take account of incorrect decisions which have been made in the past, and the injustice they have or may have caused to the applicant under the principle set out in Rashid v Secretary of State for the Home Department [2005] EWCA Civ 744, as applied (for example) in Mohammed v Secretary of State Home Department [2012] EWHC 3091 (Admin) especially at [122]. There is no evidence, said Miss Naik, that the Secretary of State did take into account this factor at all. The Secretary of State has effectively given no reasons for refusing indefinite leave to remain, despite the representations of the Claimant that such leave should be granted.

In all of the circumstances, Miss Naik submitted the Secretary of State's decision should be quashed, and it should be remitted for re-decision. She submitted that the Secretary of State would be bound to conclude that indefinite leave to remain ought to have been granted in November 2011, or at least that was a possible outcome of that re-decision.

Forcefully as they were put, I am unpersuaded by those submissions. Hakemi only concerned whether leave should be granted or not, not the length of any leave. The evidence suggests that, if leave were granted following a consideration of the paragraph 395C factors then, in June 2010, it was possible, indeed very probable, that indefinite leave to remain would have been granted; but such leave was not inevitable, as Eady J emphasised in Baser v Secretary of State for the Home Department [2012] EWHC 3620 (Admin). A conclusion in respect of an individual case cannot be drawn from general statistical evidence.

Furthermore, I am unpersuaded that the corrective principle applies at all here. The purpose of asylum is to grant the applicant appropriate protection. Rashid itself emphasises that the corrective principle which it outlined only applies where there is "conspicuous unfairness amounting to abuse of power" (at [36], per Pill LJ). Doubts as to the applicability of the principle in the circumstances of such cases as this have been recently expressed by Carnwath LJ (as then was) in RS v Secretary of State Home Department [2007] EWCA Civ 546; and, very recently, by Sir Stanley Burnton in EU Afghanistan v Secretary of State Home Department [2013] EWCA Civ 32 at [6]. I share those doubts.

In any event, in the circumstances of this case, although I understand the disappointment and the frustration of the Claimant, I find it difficult to see what injustice he has in fact suffered. What has happened is that the Secretary of State's policy has moved on and, now, if an applicant obtains leave by dint of time and circumstances, he only obtains discretionary leave for 3 years. If he obtains leave as a result of refugee status, then he obtains 5 years leave. That others in the past have had what might now be regarded as generous leave granted to them, does not make the leave the Claimant has obtained unjust.

Mr Najib submitted that the Secretary of State has made no wrong decisions, and the decision to grant 5 years leave in November 2011 is not bad because of any deficiency in reasoning. However, for the purposes of this claim, I will assume in the claimant's favour, both that he has been the subject of wrong decisions and that the Secretary of State has been deficient in the reasoning given in respect of the grant of 5 years leave.

Nevertheless, even on the basis of those two assumptions, the question arises whether this case gives rise to most exceptional circumstances such as arguably to warrant more than 5 years leave being granted. The circumstances relied upon by the Claimant are as follows.

First, as I have indicated, in his favour I will assume that the decisions, and particularly the decision in June 2010, were wrong to his disadvantage. However, even on Miss Naik's analysis the Claimant may not have been granted leave at all on the basis of the factors in paragraph 395C factors, even if they had been properly considered. If he had been granted leave, he may not have been granted indefinite leave; and, in any event, as I have indicated, the relevant policy has moved significantly on.

Second, the Claimant relies simply upon the length of time he has been in this country, now approximately 9 years.

Third, he relies upon his vulnerability, and the consequences of it. The Qualification Directive requires the particular consideration of an individual’s circumstances if that person is vulnerable, and, after individual evaluation of his or her situation, is found to have specific needs (article 20(£0 and (4) of the Qualification Directive). . I do not accept Mr Najib's submission that the Claimant was not and is not vulnerable in these terms: because article 20(3), an example of a vulnerable person, uses one who has been subjected to "torture... or other serious forms of... physical... violence". The Claimant, it seems to me, falls within that category of person, having suffered serious forms of physical violence over the three day period to which I have already referred. However, there is no substantial evidence that he has "special needs". Although he has not adduced any specific medical evidence, I accept that he has to an extent suffered depression, for which he is still being treated; but there is no evidence that unfortunate condition has been worse than mild, and the Claimant himself says that his mental health has improved since he has been granted leave to remain. Given his history, which I have very briefly related, that improvement is perhaps unsurprising. Thankfully, he now only sees the Community Mental Health Team once every 6 months, and his general practitioner each month. Given that those who achieve refugee status are likely to have undergone some trauma in the past, these clinical features are, relatively speaking, fortunately very mild. His need for some medical treatment for them does barely amounts to "a special need". There is no evidence that the Claimant is traumatised by the faint prospect of having to return to Iran at the end of the 5-year period. The mere fact that he has been in the United Kingdom for now 9 years, and the notification of the length of leave unfortunately took several months, does not make him a person with special needs.

None of these circumstances, in my judgment, individually or in aggregate amount to most exceptional circumstances. Indeed, in all of the circumstances of this claim, I accept Mr Najib's submission that there is nothing in the Claimant's case that comes remotely close to amounting to most exceptional circumstances, even arguably; and there is no basis upon which it can be suggested that he is deserving of the extra protection which flows from indefinite leave to remain as opposed to limited leave.

The other grounds set out in the written grounds were not pressed by Miss Naik today orally, and I can deal with them very shortly. The only particular ground that I have not already covered, but should deal with briefly, is that of legitimate expectation.

I do not consider that the principles of legitimate expectation at all assist the Claimant in this case. The mere fact that possibly or probably unknown to the Claimant many individuals who fell within the legacy programme were granted indefinite leave to remain does not, and indeed cannot, found a legitimate expectation. There was in this case no arguable promise from or practice of or on behalf of the Secretary of State that was clear, unambiguous and devoid of relevant qualification. The Secretary of State was quite clearly entitled to change her policy with regard to the length of leave granted to successful asylum applicants or to other applicants. There was no arguable representation by her that her policy would not change. In any event, there was on the evidence before me no arguable reliance upon the purported promise or practice by the Claimant who, as I have indicated, was unaware of any such promise or practice. These points, it seems to me, are clear. They were dealt with succinctly and conclusively, again by Davis J, in R (R (Algeria)) v Secretary of State for the Home Department [2006] EWHC 3513 (Admin) at [25].

The Claimant in this case did not have a legitimate expectation that he would obtain indefinite leave to remain. He had a proper expectation that his application would be determined in accordance with the Directive, and in accordance with the Secretary of State's policy at the time his application was determined unless there was good reason to depart from that policy. That was his entitlement; and that was precisely what occurred in this case.

For those reasons, I do not consider that the Secretary of State acted unlawfully in granting the Claimant 5 years limited leave to remain, rather than indefinite leave to remain; and, consequently, I dismiss this application.