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

This is a “legacy” case. That is to say, it is a case in which the claimant claims that he is entitled to some benefit arising from the Secretary of State’s programme for the resolution of a large backlog of unenforced negative asylum decisions, announced in July 2006. The relevant work was undertaken by a department called the Case Resolution Directorate (CRD) and subsequently the Case Assurance and Audit Unit (CAAU).

The claimant is a national of Cameroon, born on 1 December 1983. He appears to have arrived in the United Kingdom on or shortly before 7 February 2006, when he claimed asylum. His claim was refused in a letter dated 17 October 2006. On 30 March 2007 the Secretary of State made a decision to give directions for his removal as an illegal entrant. That decision carried a right of appeal, which the claimant exercised. On 12 June 2007 his appeal was heard. It was dismissed in a determination sent out on 22 July 2007. The principal reason for the dismissal of the appeal was that the Immigration Judge considered that the claimant was not telling the truth about his history and circumstances. An application for reconsideration was unsuccessful, and the claimant’s appeal rights were accordingly exhausted on 23 November 2007. He has never had any leave to be in this country, and did not depart after the dismissal of his asylum claim. In 2009 Asylum Aid, acting as his representative, made further submissions, on what may be thought to be a rather leisurely timetable. The submissions were made on 2 April 2009, but were accompanied by a request that they be not considered until accompanied by a report from the Medical Foundation. That report was not supplied until 28 September 2009. In the mean time, the Secretary of State had acknowledged the submissions (by letter dated 6 July 2009). The letter said that the claimant’s case was being dealt with “as part of a backlog of cases”.

On 16 February 2010 UKBA wrote to the claimant stating that his case was in the backlog of older asylum cases being dealt with by the CRD. The letter appears to have been in standard form, including the following passage:

“The case resolution teams have been established to deal specifically with the older asylum applications, such as yours, and their aim is to resolve those cases by either removing individuals from the United Kingdom or granting them leave to remain in accordance with the existing law and policy. Details of how we are handling older cases can be found at www.ukba.homeoffice.gov.uk/asylum/oldercases/”.

There was a request for passport-sized photographs and other information. Asylum Aid supplied photographs on 18 March 2010, and some further representations were made by the claimant on 19 March 2010.

Just over a year later, on 19 April 2011, Asylum Aid contacted the defendant by fax with a reminder that the matter was outstanding. The resulting decision letter is dated the same day, whether because a decision was then made promptly, or because there was a draft available waiting to be sent out is not clear and does not matter. The decision of 19 April 2011 runs in total to eight pages. It records the fact that previous submissions had been made, including those on 19 March 2010. The decision sets out the approach to the submissions under various heads, including assertions that the claimant had a number of psychiatric problems. The final part of the consideration is headed “consideration of compassionate circumstances”. It sets out paragraph 395C of the Statement of Changes in Immigration Rules, HC 395, and continues as follows:

“The Secretary of State has considered all the relevant factors of your case, and is content that your removal from the United Kingdom remains appropriate for the following reasons:

It is noted that you are twenty-seven years old and do not have any major health problems. It is therefore considered that you are young enough to readapt a life in Cameroon. You have been resident in the UK for approximately five years. You arrived in the United Kingdom illegally and the appeal rights against the refusal of your asylum application were exhausted on 23/11/07. It is considered that your length of residence is not sufficiently compelling to justify allowing you to remain in the UK. It is considered that your ties to the United Kingdom are not sufficiently compelling to justify allowing you to remain. It has been noted that you have failed to report to your local immigration office on a number of occasions, therefore you have broken the terms of your temporary admission. It is considered that your personal history, character, conduct and employment record are not sufficiently compelling to justify allowing you to remain in the UK. It is considered that your domestic circumstances are not sufficiently compelling to justify allowing you to remain in the UK. Whilst you have not been convicted of any criminal offences in the UK. Your lack of criminal record does not justify allowing you to remain in the UK. Furthermore, there are no compelling compassionate circumstances in your case to justify allowing you to remain in the UK.

All these circumstances have been carefully considered individually and together, but for the reasons given above it is considered that your removal from the UK is appropriate”.

The conclusion reached by the decision-maker is set out as follows:

“Your asylum and/or human rights claims have been considered on all the evidence available, including evidence previously considered and the further submissions dated 19/03/10, but it has been decided that the further submissions dated 19/03/10 are not significantly different from the material which has previously been considered and therefore they do not allow to a fresh claim or asylum and/or human rights. For a detailed explanation of why the further submissions do not amount to a fresh claim for asylum and/or human rights, please see the attached Consideration of Submissions proforma.

You have no basis of stay in the United Kingdom and should make arrangements to leave the United Kingdom without delay.

In all circumstances we prefer that those with no basis of stay in the United Kingdom leave voluntarily, but should you fail to do so then your removal may be enforced”.

It is appropriate to note here that in Mr Westgate QC’s skeleton argument on behalf of the claimant, it is asserted that “the refusal does not make any reference to consideration under “legacy” or review by the case resolution directorate nor is any decision made to remove the claimant”. Both those assertions are literally true, but both are slightly misleading. The decision letter is expressly from the CAAU, which may be regarded as indicating that that unit’s policies and practices were operative in making the decision. So far as removal is concerned, the effect of the claimant’s failure in his appeal was that the removal decision of 30 March 2007 remained in force; the effect of the decision on his further submissions was that it was not replaced by a new appealable decision, and so again continued in force. The decision of 19 April 2011 had no need to make a fresh decision to remove: indeed, in refusing the submissions as a fresh claim, its purpose was to decline to make a fresh decision to remove.

By 22 June 2011, the claimant had new solicitors, McLee & Co. On that date they wrote requesting that the claimant’s case “be formally considered under the legacy questionnaire policy”. They made further submissions on his behalf, citing Article 8 of the European Convention on Human Rights.

A letter dated 31 July 2011 is a crucial part of the claimant’s case. It was sent by CAAU to Asylum Aid, who by then were the claimant’s previous solicitors. The important passage in it is as follows:

“In March 2011, the UK Border Agency completed its internal review of all outstanding legacy cases.

Your client’s case has been reviewed but is one of a very small number of cases on which we have not yet been able to come to a final decision. We aim to notify you of the decision on your case by the end of August, where possible. If for any reason this is not possible we will explain to you why and set out the next steps in your case”.

There was a response from McLee & Co saying that they had had the letter via Asylum Aid and reminding the Secretary of State that they were now the claimant’s solicitors. They sought an update in December.

The claimant’s present solicitors were instructed on 7 February 2012. They contacted the Secretary of State alleging a failure to communicate, and a failure to provide asylum support. The present proceedings were issued on 17 February 2012. They alleged “failure to consider the claimant’s case under the legacy policy or … failure [to] grant the claimant leave to remain under that policy or to give reasons for not granting the claimant leave under that policy”, and refusal to provide asylum support. The asylum support issue has, so far as these proceedings are concerned, been resolved. Although an appeal to the First-tier Tribunal was dismissed, correctly so far as I can see, on 1 February 2012, the claimant was granted asylum support on 8 June 2012 following a further successful appeal on different grounds.

Permission to apply for judicial review was refused by HHJ Alice Robinson sitting as a deputy judge of this Court on 15 March 2012. So far as the “legacy” challenge was concerned, she said this:

“The claimant’s immigration history indicates that his submissions made by post on 2^nd April 2009 and in person on 19^th March 2010 were refused on 19^th April 2011 and there has been no challenge to that decision. Since that date the claimant has not made any further representations in person as required by the first defendant’s policy since 14^th October 2009, a policy which is not (and could not now be) challenged. There is no arguable case that the defendant’s decisions that the claimant has no further representations outstanding (whether under the “legacy” programme or otherwise) is unlawful”.

The application for permission was renewed and came before John Howell QC sitting as a deputy judge of this Court on 13 June 2012. By then, as I have indicated, the asylum support issue had become academic and he refused permission in relation to those grounds of challenge. By then also, however, the Secretary of State had made a further decision, dated 30 May 2012, and contained in a letter of that date from CAAU to the claimant. Paragraph 395C of the Immigration Rules was no longer in effect, having been revoked on 13 February 2012. On the same date paragraph 353B was inserted, requiring a decision-maker to have regards to certain factors “in cases with no outstanding further submissions whose appeal rights have been exhausted and which are subject to a review”. The decision of 30 May 2012 was again that the submissions did not amount to a fresh claim and so did not require a new immigration decision. The decision-maker recorded taking into account the factors set out in paragraph 353B, and decided that there were no exceptional circumstances applicable in the claimant’s case. Thus, again, the removal decision of 30 March 2007 remained in force.

The grounds for renewal of the application for permission considered by Mr Howell and regarded by him as arguable were that, despite the letter of 30 May 2012 a decision envisaged by the letter of 31 July 2011 remained outstanding; and that a decision envisaged in the letter of 31 July 2011 had not been taken within a reasonable time.

There is one other area relating to the claimant’s history which it is convenient to set out here. The Secretary of State’s records show that the claimant has failed to comply with the reporting arrangements that were a condition of his release on temporary admission. He first failed to report when he lost his appeal in the summer of 2007. He was sent an enforcement notice. There was another failure, but it appears he did report in October and November 2007. Following the final conclusion of his appeal he immediately ceased reporting and was eventually treated as having absconded. He did not report after 11 November 2007, until on 19 March 2010 he presented himself to make submissions in person. New reporting arrangements were put in place. Following the refusal of his submissions in April 2011, he again failed to report, for almost the whole of the rest of that year. His next report was in December 2011, coinciding with his then solicitors’ then pressing the defendant for an update on his case.

The claimant’s grounds have been amended, with permission. The claimant’s case is now, in outline, as follows. First, the defendant unlawfully delayed in making a decision: the letter of 31 July 2011 created a legitimate expectation that a decision would be made, by or shortly after 31 August 2011, and it was unreasonable for the defendant to delay substantially after July 2011 in making the decision in question. Secondly, the delay had a substantial adverse effect. The evidence of the policies and practices of those making legacy decisions in the period soon after 31 July 2011 suggests that if a decision had been made at that time it would have been a grant of leave. Thirdly, the decision made on 30 May 2012 is inadequately reasoned and fails to take into account the submissions that have been made about the claimant’s situation as it was on that date.

If there had been no such thing as the 'legacy programme' there could be little doubt that the decision of 19 April 2011 would have been the final decision on the claimant’s case and would have entitled the defendant to proceed to his removal: it is the response to all the further submissions that had been made under the regulations for such submissions. In order to get very far with the present claim the claimant needs to find some way of discounting that decision and showing that it should not be regarded as the final decision. His claim that he is entitled to another decision at all must rest on either the mere fact that the case was in the ‘legacy programme’, or on the letter of 31 July 2011.

The starting point in this Court for the consideration of issues arising out of the ‘legacy programme’ must be the judgment of Burton J in Hakemi and others v SSHD [2012] EWHC 1967 (Admin). He set out the material, including the contents of emails sent to case workers at the end of August 2011 that are said to be of particular importance in this claim. By way of introduction to his statement of the programme and decision-making under it is necessary only to say that the difficulties arose from the failure to enforce immigration decisions over a very long period of time, as a result of which many individuals were remaining in the country with no recognised right to be here; but it was recognised that the passage of time might have engendered a number of meritorious claims to remain under article 8 of the ECHR or on compassionate grounds. So the task was to review each case on its merits and to grant leave to those who should have it but to remove those who should not. A case would not be regarded as ‘concluded’ for the purposes of evaluating the progress of the programme until an individual had either been granted leave or removed: because until then there had been no change in the status quo. Burton J’s judgment begins as follows

“1.

The claims arise out of the so-called "Legacy Cases". 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 Secretary of State for the Home Department [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.”

After referring to the facts of the individual cases before him he continued:

“6.

The CRD was to consider the grant of leave outside the Immigration Rules but by reference to paragraph 395C, which states:

"Before a decision to remove under section 10 is given, regard will be had to all the relevant factors known to the Secretary of State, including:

(i)

age;

(ii)

length of residence in the United Kingdom;

(iii)

strength of connections with the United Kingdom;

(iv)

personal history, including character, conduct and employment record;

(v)

domestic circumstances;

(vi)

previous criminal record and the nature of any offence of which the person has been convicted;

(vii)

compassionate circumstances;

(viii)

any representations received on the person's behalf."

There is then further reference to family members/children, not relevant in this case; all four of the Claimants are, and have been, single, without wives, partners or dependants.

7.

Chapter 53 of the Enforcement Instructions and Guidance ("EIG") was at all material times the published guidance, its purpose being described as "to provide CRD caseworkers with clarification on the consideration of the 'relevant factors' in paragraph 395C of the Immigration Rules". There were two amendments, in April and August 2009, giving some more specific guidance in respect of length of residence, which, as explained by Mr Forshaw, Assistant Director of UKBA, did not constitute material changes. However in any event it is common ground that the format of Chapter 53 by reference to which the cases for all these four Claimants fell to be considered post-dates those amendments. As amended, it read as follows (in material part):

"53.

Extenuating Circumstances

It is the policy of the Agency to remove those persons found to have entered the United Kingdom unlawfully unless it would be a breach of the Refugee Convention or ECHR or there are compelling reasons, usually of a compassionate nature, for not doing so in an individual case.

53.1

Illegal entrants and persons subject to administrative removal action under section 10 of the 1999 Act

Full account must be taken of all relevant circumstances before a decision to remove is taken on a case.

The factors to be considered are the same as those outlined in paragraph 395C of the Immigration Rules.

53.1.1

Instructions on applying paragraphs 364 to 368 and 395C of the Immigration rules

Before a decision to remove is taken on a case, the case-owner/operational staff must consider all known relevant factors (both positive and negative). It is important to cover the compassionate factors in the transcription of the interview and to record them and the fact that you have discussed them with the UKBA officer authorising removal, on the local file minute or IS126E and UKBA internal database records (CID). Removal should not be considered in any case which qualifies for leave under the Immigration Rules, existing policies or where it would be inappropriate to do so under this policy.

Relevant factors are set out in paragraph 395C of the immigration rules and in the guidance below, but this list is not exhaustive …

53.1.2

Relevant Factors in paragraph 395C. [I add subparagraph numbers]

(i)

The consideration of relevant factors needs to be taken as a whole rather than individually, for example, the length of residence may not of itself be a factor, but it might when combined with age and strength of connections with the UK.

…

Length of residence in the United Kingdom

For those not meeting the long residence requirements elsewhere in the immigration rules, the length of residence is a factor to be considered. In general, the longer a person has lived in the UK, the stronger their ties will be with the UK. However, more weight should be attached to the length of time a child has spent in the UK compared to an adult.

(ii)

Residence accrued as a result of non-compliance by the individual

Where there is evidence of an attempt by the individual to delay the decision making process, frustrate removal or otherwise not comply with any requirements imposed upon them, then this will weigh against the individual. …

(iii)

Residence accrued as a result of delay by UKBA

Case law has established that there are particular contributory factors involving delay that need to be present before it is considered significant enough to grant leave (Court of Appeal judgment in HB (Ethiopia) & others v SSHD [2006] EWCA Civ 1713 refers).

These include cases where:

an application has been outstanding for over 2 years; and

no decision has been received from the UK Border Agency during that time; and

the individual has been making progress enquiries during that time;

in the meantime the delay has meant that they have built up significant private or family life or the delay has resulted in considerable hardship:

(iv)

In addition to the foregoing, provided that none of the factors outlined in 'Personal History' weigh against the individual, then caseowners should also place weight on significant delay in cases where, for example:

An initial application or an 'in-time' application for further leave (an application made before the individual's leave to enter/remain had expired) was submitted some time ago. A significant delay in such cases considered as being between 3-5 years.

'Family' cases where delay by UKBA has contributed to a significant period of residence (for the purposes of this guidance, 'family' cases means parent as defined in the Immigration Rules and children who are emotionally and financially dependent on the parent, and under the age of 18 at the date of the decision). Following an individual assessment of the prospect of enforcing removal, and where other relevant factors apply, a 3 year period of residence may be considered significant, but a more usual example would be 4-6 years. Family units may also be exceptionally considered where the dependent child has experienced a delay of 4-6 years whilst under the age of 18.

Any other case where delay by UKBA has contributed to a significant period of residence. Following an individual assessment of the prospect of enforcing removal, and where other relevant factors apply, 4-6 years may be considered significant, but a more usual example would be a period of residence of 6-8 years".

8.

In the pages which follow there is discussion of other relevant factors, such as personal history, strength of connections with the UK, domestic and compassionate circumstances and consideration of representations received. Mr Forshaw, in an email of 29 October 2010 to Ms Jo Puddick, one of the team managers, wrote that:

"… as the 395C exercise requires a holistic evaluation of cases based on a range of factors – both positive and negative – it does throw up borderline cases where it is difficult to say definitively that it is clearly a case where either refusal must proceed or leave [be] granted. We have generally taken the approach that where a case is genuinely borderline – most often if the negatives associated with an applicant are associated with non-compliance behaviour, rather than criminality – it is more likely that we would err on the side of granting. But we do apply the guidance on non-compliance as detailed in Chapter 53 of the [EIG]."

Training was given throughout the period to the CRD team members, and Mr Forshaw emphasises that they were trained to make decisions on the basis of the published policies.

9.

The CAAU operated by reference to the same principles as the CRD, and, in particular, by reference to Rule 395C and Chapter 53. Mr McEvoy, the Assistant Director of the CAAU, explains however that, of the active cases transferred from CRD to CAAU at the outset, there were approximately 4800 which had reached a stage at which they now required an urgent decision. An email, dated 31st August 2011, has been disclosed which he sent in relation to those cases, where he indicated that it had been discussed and agreed that, with regard to them, "the most appropriate way to deal with these cases is to apply the following criteria under paragraph 395C … use the lowest limit of 4 years' residency for single applicants … use the lower limit of 3 years' residency for families". Mr Forshaw and Mr McEvoy both explained that this did not involve any change in approach, and I shall return to this matter further below, but, in any event, it did not apply to any of the Claimants: the first three Claimants' cases had already been decided by CRD, and the Fourth Claimant's case had been resolved by the CAAU in July 2011, and did not form part of the 4800 cases being referred to.”

As is apparent from the Report of John Vine CBE QPM on the operation of the process as a whole, the figures in the last paragraph are unreliable, and to speak frankly it looks very much as though none of the various figures produced at various stages of the programme were at all reliable. The Report shows that it is not difficult to mount criticisms of the process as a whole; but, although Mr Westgate QC referred to it a number of times in his submissions I do not need to make detailed reference to it.

Amongst Burton J’s conclusions were (i) that the decision-making process was undertaken by reference to the factors set out in para 395C and by reference to the guidance and instructions in Chapter 53 (see at [8] and [9] above); and (ii) as regards the email of 31 August 2011, at [15], ‘it is quite clear to me that there was no change in Rule 395C, but simply discussion and guidance in relation to the factors to be taken into account, always subject to what Mr Forshaw called (as set out in paragraph 8 above) the holistic approach’

It seems to me that, both in this case and elsewhere, assertions have been made about the legacy process and about people’s expectations of it, that are, when viewed properly in context, simply unsustainable. Once the decision to initiate the process had been made, and given that there was to be no general amnesty, a number of consequences necessarily followed. First, it was inevitable that each individual file would require to be reviewed. Secondly, that process was likely to take a long time. Thirdly, the result of the review would be either a grant of some form of leave, or removal. That was inevitable, because any other outcome would be a maintenance of the status quo. If following review, the individual was neither granted leave nor removed, he would be remaining without leave, which was precisely the problem in the first place. It can thus be seen that to indicate, as the original announcement did indicate, that the individual files were to be reviewed, that it would take about five years, that decisions were to be taken, and that a case would not be regarded as “concluded” unless either leave was granted or the individual was removed, add nothing perceptible to the original announcement that this vast number of cases was going to be dealt with.

It does not follow from that, that ‘the purpose of the legacy programme was to grant leave to all those not actually removed’: it can equally be said that the purpose was to remove all those to whom leave was not to be granted. The creation of the CRD was for the purposes of review, and in order to divide those who were entitled to remain from those who ought to be removed.

Secondly, the policies and practices applied to the decision of individual cases were not said to be different from those which would be applied to any other cases that shared the same facts. Of the people whose cases were in the legacy, because of the way they were originally identified, a considerable number had been in the United Kingdom for several or many years, not subject to any real interference by the Secretary of State despite the fact that they were here illegally, and had, not unexpectedly developed relationships and put down roots. In the group of those who waited for a long time for a decision following a claim for asylum, it could properly be said that it was the Secretary of State’s own inactivity that had enabled them to develop a personal life in the United Kingdom and to build up relationships here. Even in the case of those whose appeal rights were exhausted, the general lack of enforcement enabled such situations to develop, even if they should not have been allowed to do so. But the instructions for those conducting the review of cases within the CRD were the same as those issued to decision makers not in the CRD. The difference was simply that the cases within the CRD were particularly likely to feature long residence in the United Kingdom. What is important is that the inclusion of a case within the ‘legacy’ gave no additional expectation of a grant of leave. All that it meant was that, following review, if leave was not granted, removal could be expected; and the cases within the legacy were no doubt a substantial proportion of those in which a grant of leave was appropriate by applying the general principles.

The ‘legacy programme’ has given rise to a considerable number of judicial review claims, and most of those who sit in this Court now have some experience of them. They seem to fall into two categories. In one category are cases in which the claimant complains that he has not received a ‘legacy decision’ granting him leave to remain. In the other category are cases in which the claimant has received a grant of leave and complains that he should have received a grant of indefinite leave to remain. Cases in the former category are typically argued on the following basis.

The present claim falls clearly within this category. The skeleton argument for the hearing begins as follows:

‘This claim relates to the Defendant’s failure to grant the Claimant leave to remain under its legacy policy. Under that policy all legacy cases were to be dealt with by either a grant of leave or by removal.’

Although particular issues are raised about an asserted legitimate expectation arising from the letter sent on 31 July 2011, the argument is essentially that set out above; the claimant seeks to show that he has not yet received a (valid) ‘legacy decision’, and that he should have one, granting him leave to remain.

Looking at the argument as set out above in general terms, it is usually possible for claimants to establish the first three steps. The fault in the argument is, in my judgment, at step (iv). Although the ‘legacy programme’ had as its intention the sorting out of the backlog of cases by granting some sort of leave or removing individuals, it does not follow that a person neither granted leave nor removed has not yet had a legacy decision. Why that is so appears clearly from a moment’s reflection on the processes for grant and removal.

A grant of leave is the result of an act of a decision-maker. The person affected is likely to know little about the precise progress of his case until he receives the letter indicating that leave is to be granted and granting it. No further action is required to put the decision-maker’s decision into effect.

The position with removals is quite different. Removals are effected not by a decision-maker but by aeroplane. The decision-maker’s task is in these cases to decide that leave is not to be granted and that removal is appropriate; to see whether it is necessary to serve formal notice of a decision to remove (which may carry a right of appeal); and in suitable cases to give removal directions. The law simply does not allow people to be removed instantly on a decision-maker’s say-so: even if it did there would be practical problems booking seats and so on.

It follows from the nature of the legacy programme that a person not granted leave is to be removed. It follows from what I have said about the process for removal that unlike the granting of leave it will not be instantaneous but will be a process that may be lengthy and is likely to begin with the person’s being notified that his removal is going to take place. At that point he is aware that he is not one of those whose legacy case is going to be concluded by his being granted leave but is (therefore) one of those whose case is going to be concluded by his being removed; and subject to any challenge to the notification that he has received, he can have only an expectation that his removal will in due course be effected, leading to his case being regarded as ‘concluded’ for legacy purposes.

For the above reasons it seems to me that step (iv) is wholly unarguable in cases in which the claimant has had a notification, under the auspices of those making ‘legacy decisions’, that he is not to be granted leave but is to be removed. Although he is not a person who has yet actually been removed, his case has been reviewed, he has had his legacy decision, and the removal process, which has to start with such a notification, has begun. Such a person does not get to step (v) of the argument: decision-makers have completed their task and only those charged with arranging the mechanics of removal have any further work to do on his case. In a sense, and for the purposes of the ‘legacy’, he is being removed

Applying those observations to the present case, the position is as follows. The claimant’s case was in the legacy. He could therefore expect a decision whether he was a person to whom leave should be granted or not. On 19 March 2010 he made further submissions. On 19 April 2011 he received a decision, avowedly taking account of all the submissions that had been made. The decision was, on its face, made by CAAU, the successors of CRD in administering the legacy policy. It was a decision that he was not to be granted leave, and that his removal was appropriate.

The claimant did not challenge that decision. He had no perceptible entitlement to another. He has made no further valid submissions and there are no submissions outstanding. Although his case had not yet been “concluded” by his removal, he could properly expect only that he would be shortly removed, his case having been fully reviewed. Certainly up to 31 July 2011 he had no expectation of a further ‘legacy decision’.

The claimant’s case is, however, that even if that is so, his position changed as a result of the letter of 31 July 2011. That letter, it will be recalled, asserted that his case was “one of a very small number of cases on which we have not yet been able to come to a final decision”. It went on to say that “the decision on your case” would be notified by the end of August (i.e. within a month) “where possible”. The claimant says that that letter created a legitimate expectation that there would be a further decision on his case, within the timeframe set out in the letter, with a number of consequences as to when that new decision had to be made, under what legal regime, and with what result. The defendant says the letter was sent in error, an assertion which the claimant resists.

Mr Stephen Morris QC sitting as a Deputy Judge of this Court dealt with a similar argument in R (Mohammed) v SSHD [2012] EWHC 3091 (Admin). In that case an essentially identical letter was sent on 31 July 2011 to a person who had recently received a full decision on his case from the administrators of the legacy programme. The claimant said that it created a legitimate expectation of a new and final decision. Mr Morris decided that sending it was a mistake – not the only error he identified in the history of the case before him. He set out the principles of legitimate expectation at [51] as follows:

“As regards the principle of legitimate expectation, Counsel for the Defendant, Ms Beatrice Collier referred me to the following test for the essential requirements of a claim for legitimate expectation derived from R v IRC ex p Unilever [1996] STC 681 at 693c-d: first the claimant must have put all his cards on the table; second, that the body concerned ... made a representation that was clear, unambiguous and devoid of relevant qualification, third that he claimant was within the class of people to whom the representation was made or that it was otherwise reasonable for him to rely upon it, and fourth that the claimant did indeed rely upon it to his detriment. More generally … the question ultimately is whether the authority in question has acted so unfairly as to amount to an abuse of power: see in particular Nadarajah and R(S), citing in turn Begbie [2000] 1 WLR 1115 at 1129-1131.”

Applying those principles he concluded at [64] that

“I do not consider that the letter of 31 July 2011 gave rise to any legitimate expectation of a further decision. The fact that this letter was sent was unfortunate and a further administrative error. I accept the explanation of Mr Montgomery that it was a computer generated letter sent in error to the Claimant, when it should not have been. Unfortunately no explanation has been given as to how it came to be that the Claimant's case was marked on the computer system with a flag which indicated that the case had not been resolved. On its face this letter did amount to a clear and unequivocal representation that the Claimant's claim was outstanding. However I am not satisfied that the Claimant or Malik & Malik understood or reasonably understood the letter to mean that a further decision was outstanding. By then a decision had already been taken, as the Claimant well knew and recognised, as demonstrated by the fact that the Amended Grounds filed in March 2011 challenged that decision. Further I do not consider that the Claimant in any way relied upon the representation in the 31 July 2011 letter. For example, Malik & Malik's letter of 24 November 2011 does not even refer to the 31 July letter.”

The present claim is not identical on its facts. Here there was no ambiguity in the earlier decision, and there is no clear evidence that the claimant did not rely on the expectation said to have been engendered by the letter. But insofar as reliance is necessary it would clearly be for the claimant to establish it.

I prefer neither to look for reliance nor to seek to determine primarily whether or not the sending of this form letter was a mistake: for a letter sent by mistake could give rise to a legitimate expectation if it could properly be so read. The crucial question, and the matters to take into account when answering it, are as explained by Lord Dyson JSC in Paponette v A-G of Trinidad and Tobago [2010] UKPC 32 at [28] – [30], where he cites the judgment of Lord Hoffmann in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] AC 453, and his own judgment in R (Association of British Civilian Internees: Far East Region) v Secretary of State for Defence [2003] QB 1397. The question is, was there a promise which was clear, unambiguous, and devoid of relevant qualification? In answering that question one looks to see what, on a fair reading of what was said, would be reasonably understood by a person to whom the words were expressed. Reliance on any promise is not essential, but if there has been reliance, that would be relevant in deciding whether it is open to the authority to go back on the promise and will be one of the factors to bear in mind when deciding whether a change of policy or a revocation or abandonment of the promise can be justified in the public interest.

As Mr Morris said, the letter on its face did amount to a clear and unequivocal representation that the claim was outstanding. But the assessment of any expectation legitimately arising from the letter has to be made in the context of the recipient’s knowledge. The claimant and his solicitors knew perfectly well that all the outstanding submissions that had been validly made had been dealt with in the decision of 19 April 2011. They knew that, contrary to what had been said in the letter, the claimant’s case was not one in which the Secretary of State had not been able to come to a final decision. The decision had been reached, and communicated; all that was awaited was removal. No doubt the solicitors might have enquired what on earth the Secretary of State meant by saying that, despite that decision, no “final decision” had been reached. But in any event they knew, and the claimant knew, that the decision on his case had been taken and was a negative one.

Nothing to which the claimant has pointed indicates that the legacy programme involved any system of repeated review of cases in which no further (valid) submissions had been made. It is thus somewhat difficult to understand what it is said that the claimant’s expectation was. It cannot have been that there would be a new decision based on submissions made after 19 April 2011, because no submissions had been validly made after that date. It cannot have been that the decision to be taken by CRD or its successor CAAU on the review of his case under the legacy programme would shortly be taken, because he knew that it already had been taken. It cannot have been that a second review was to be taken under the legacy policy, because he does not say that second reviews were a feature of the legacy programme.

It has to be remembered that although the Secretary of State had many cases to deal with, the claimant had only one; and the claimant knew precisely what his position was. He knew that all his valid submissions had been considered, that a decision had been made not to grant him leave, that the removal decision of 2007 was still in force, and that he was about to be removed. He had no other conceivable expectation from the legacy programme.

The truth of the matter is that the claimant cannot legitimately have derived any expectation from this letter at all, save, perhaps, that he would shortly receive another letter explaining that the first had been a mistake. In any event, given what the claimant knew about his own case, any decision expected as a result of this letter would necessarily have been a decision after, rather than as part of, the ‘legacy programme’ consideration of his case.

It follows that the complex submissions mounted on the basis of the expectation of some further ‘legacy decision’ within the timeframe apparently set out in the letter do not require determination. The claimant had no legitimate expectation of a further decision under the legacy programme and all the material showing how decisions under that programme were made in the period after 31 July 2011 does not assist him at all.

For whatever reason, the claimant has still not been removed: his case is not yet ‘concluded’ in the terms of the legacy programme, although it is clear that the process for his removal began with the 19 April 2011 decision. His case was evidently reviewed on 30 May 2012, leading to the conclusion on that date that the claimant’s removal continued to be appropriate. The review took place under paragraph 353B of the Immigration Rules. In view of the conclusions I have reached on the claim of legitimate expectation, there is no possible basis for saying that on that date the claimant’s case fell to be considered save under the rules and policies in force on that date.

Paragraph 353B is as follows:

“Exceptional Circumstances

353B. 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:

(i)

character, conduct and associations including any criminal record and the nature of any offence of which the migrant concerned has been convicted;

(ii)

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;

(iii)

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.

This paragraph does not apply to submissions made overseas.

This paragraph does not apply where the person is liable to deportation.”

This paragraph applied not because there had been ‘further submissions’, because the position is still that no such submissions were validly made after 19 March 2010, but because at some decision-maker’s instance the claimant’s case was ‘subject to review’. The claimant submits that the decision is inadequately reasoned and fails to take relevant considerations into account, and lists a number of elements of his history which find no clear place in the decision.

Consideration under paragraph 353B takes place, if it takes place at all, after there has been a full consideration of all factors raised by an individual either in a formal claim or application, or as fresh submissions. It is a last check before removal. A decision under paragraph 353B needs to be read in the context of all the other decisions that may have been made previously, and has no need to repeat them unless some new factor has been brought to light. The factors requiring consideration under paragraph 353B and so enabling a decision under that paragraph that (despite earlier decisions) there are ‘exceptional circumstances which mean that removal from the United Kingdom is no longer appropriate’ are really quite limited.

The decision-maker clearly took into account the material before him on those and indeed a number of other factors, as the decision taken as a whole makes clear. Paragraph 353B could only have effect after the consideration of other matters, in particular matters going to human rights: that is why it appears at the end of the decision. So far as concerns the factors listed in that paragraph, there was nothing specific to say under (i) that had not been dealt with in considering human rights; under (ii) it was right to take into account the considerable failures to report set out at [15] above; and under (iii) the decision makes clear that consideration has been given to whether the claimant’s time in the United Kingdom has been beyond his control, and the conclusion is reached that it has not, because he has been remaining without leave since the removal decision in 2007.

In my judgment nothing more was required. The reasons given for the conclusions under paragraph 353B are intelligible and accurate, and they take into account all matters relevant to a decision under that paragraph. There is no conceivable basis for saying that they were insufficient for the claimant to understand, or that they were for any other reason inadequate in law.

Following the decision of the CAAU on 19 April 2011, the claimant had no legitimate expectation of a further decision under routine of the ‘legacy programme’ or as a result of the letter of 31 July 2011. His case was properly considered under paragraph 353B on 30 May 2012. His claim for judicial review fails and will be dismissed.