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

This matter comes before me on a substantive hearing for judicial review. The manner that this matter came before me first thing this morning was in the form of a draft order which had been signed by both solicitors for the claimant and by the treasury solicitor for the defendant.

The order was in these terms:

That was an order which I was invited, as the judge trying this case, to endorse as my own, as it were.

It seems to me in principle that it is not appropriate for an order in such terms to be entered, not least because there had been no consideration of the claim for judicial review and there had been no judgment given in relation to that. The consequence of that will be, in the absence of any determination or judgment, that there could not be a proper consideration on an application for permission to appeal to the Court of Appeal, which in itself has not happened. In any event, the reason that this order in this form has been drafted is because the claimant wishes to reserve the possibility in this, which is a legacy case, and which the claimant accepts, as I shall address in due course, stands no prospect of success at first instance, may possibly be joined with in due course any cases in relation to legacy which reach the Court of Appeal.

It seems to me that there is no basis on which a Court of Appeal could be properly assisted as to the particular facts of this case and the decision that is reached in this case without there being a judgment, however brief, in relation to this matter so that a court, if an application is made in due course to the Court of Appeal for permission to appeal, is in a position to know both the factual position in this case and any similarity or difference with any other case that is before the courts at the moment; and, also, whether the particular facts of this case are such that it would be appropriate, if the Court of Appeal felt it appropriate, for permission to be given in this case.

I therefore required that both parties attend before me this morning in order that the judicial review hearing could proceed and that a judgment could be produced as a result. That is what has now happened before me this morning. I have been addressed on that and, against that background, I now give my judgment on the application.

The claimant, Mr Singh, is a citizen of India and was born on 11 January 1987. Mr Singh is a failed asylum seeker, having claimed asylum on 20 February 2006 on arrival at a UK port, with his asylum claim being refused on 1 March 2006 and certified as clearly unfounded. After being released from detention on temporary admission with a requirement to report, Mr Singh failed to comply with his reporting requirements over the ensuing years, save for one period. Over the years, solicitors acting for Mr Singh have written a number of letters to the Secretary of State for the Home Department enquiring whether his case would be considered under the legacy programme.

The claimant issued judicial review proceedings on 13 October 2012 asserting that "the Secretary of State for the Home Department's failure to make any decision and/or regularise his stay in the United Kingdom" under the legacy programme was unlawful. The acknowledgment of service was filed on 13 January 2013. Permission to apply for judicial review was granted by His Honour Judge Thornton QC on paper on 25 June 2013. The Secretary of State for the Home Department made the decision refusing to regularise the claimant's stay under the legacy programme on 7 October 2013.

The claimant raised two grounds of challenge in his application for judicial review, first that the "continued failure" to make a "decision" or a "substantial decision" in his case and, secondly, he alleges that the Secretary of State for the Home Department's conduct is unlawful and irrational based on excessive delay. These are familiar grounds of challenge in the numerous legacy cases that have been brought before this court and have resulted in a large number of first instance decisions of this court in which such legacy cases have been found to be ill-founded. I would refer in particular to the R(Geraldo) v Secretary of State for the Home Department [2013] EWHC 2703 (Admin), R(Hamzeh) v Secretary of State for the Home Department [2013] EWHC 4113 (Admin) and, most recently, R(Jaku) v Secretary of State for the Home Department [2014] EWHC 605 (Admin), a decision of Ouseley J, the lead judge for the Administrative Court. Despite this body of authority, substantial judicial review hearings continue to be pursued in cases indistinguishable from the issues arising in those cases. A recent example is the R(Mohammed) v Secretary of State for the Home Department [2014] EWHC 1405 (Admin).

For some considerable time before this hearing, the Secretary of State has invited the claimant to withdraw these judicial review proceedings in the light of the case law that followed the grant of permission in this case, but the claimant has declined to do so. Under cover of an email of 14 May 2014 from the claimant's solicitors, ie very shortly before this hearing, the claimant served the claimant's note dated 14 May 2014 setting out the claimant's stance on this substantive hearing. Paragraph 4 of that note provides as follows:

Thus the claimant concedes that he cannot succeed at this level and indeed he invites this claim to be dismissed. 12. However, he reserves his position as to correctness of Geraldo, Hamzeh and Jaku and indicates that he seeks permission to appeal to argue in the Court of Appeal that these decisions, and the other legacy cases that have been referred to, were wrongly decided. In doing so, he asserts he has a real prospect of success, as he must on an application for permission to appeal. That application for permission will follow this judgment. However, I must first rule on the claimant's claim for judicial review and give my reasons for dismissing the claimant's claim, as it is this judgment that the claimant will be seeking permission to appeal in respect of.

In light of the concessions made by the claimant, I will not refer in detail to the many legacy cases in which the issues raised in this case have been addressed in detail. They are helpfully reviewed and summarised by Ouseley J in Jaku, to which I have had regard for the applicable principles in such cases. In the Claimant's Note he stated that he accepts it would be unrealistic for him to ask this court to depart from the earlier judgments. To the extent that this is a suggestion that the court may simply defer to the judgments of other judges in this court as a matter of judicial comity, I should make clear that, in my judgment, Geraldo and the other cases cited above are rightly decided and clearly so. In this regard, I note that permission to appeal was refused in Geraldo by the Court of Appeal on 1 April 2014. I have had referred to me the observations of Elias LJ in granting permission to appeal on 18 February 2014 and in the case of BA(Ethiopia) v Secretary of State for the Home Department (C4/2013/1851). However, I consider Geraldo to be rightly decided and that the principles decided in the existing legacy cases provide a complete answer to the specific complaints of the claimant to which I will now turn.

I will not lengthen this judgment by repeating the history of the so called legacy of unresolved asylum cases, which is well known to all who practice and sit in this court. It is summarised in paragraphs 1 to 6 of Ouseley J's judgment in Jaku. The recent decisions of this court in relation to legacy, including Geraldo and Hamzeh are summarised in 7 to 17 of that judgment.

Turning then to the specific grounds of claim of the claimant, his complaints are essentially twofold; firstly, in relation to the legacy programme and, secondly, in relation to delay. As for the legacy programme, the points made are as follows: firstly, that the Secretary of State for the Home Department operated an "amnesty" and the claimant fell within its terms and has been given "no reason" to deny him leave; secondly, that the claimant has a legitimate expectation to leave to remain on the basis of accrued residence on a similar basis to those who have been granted leave and that, in such circumstances, he should be granted leave; and secondly in relation to delay, firstly, delay in giving him "substantive consideration" for this claim is unlawful, having regard to R(FH & others) v Secretary of State for the Home Department [2007] EWHC 1571 and, secondly, a letter to the Claimant’s MP and a response to a PAP protocol is not a "substantive consideration" of what had arguably become an application for Leave to Remain and that the claimant was entitled to consideration of his leave akin to Mohammed. I do not consider there is merit in any of these points.

As to the legacy grounds, the suggestion that the Secretary of State for the Home Department operated an "amnesty" which the claimant fell within is simply wrong and the court has expressly and, in my view, rightly held there was no amnesty (see Geraldo at paragraph 125 and Hamzeh at paragraph 41). Equally, so far as the challenge based on a breach of legitimate expectation is concerned, the obligation of the Secretary of State was to consider the claimant's case on the basis of the law and policy at the time, which I consider she did. The claimant has no legitimate expectation beyond this and I reject as unfounded the suggestion that he had a legitimate expectation that he would be granted a form of leave simply because he had been present in the United Kingdom for a period of six years, which is at the heart of his submissions.

As for delay, the administrative delay alone does not readily give rise to unlawfulness, such that corrective intervention of the court was required in respect of a subsequent decision properly based on current policy. In any event, on the facts of this case, as in the case of Geraldo, I do not consider that any delay on the part of the Secretary of State had become unlawful. Indeed, I do not consider there to be any basis for a claim based on delay at all. There was an initial prompt asylum decision, and the claimant then failed to report for many years. He was informed in 2011 that he had no basis of leave and he has subsequently benefited from a detailed review with a detailed letter being provided to him by the Secretary of State on 7 October 2013.

For completeness, I should add that I do not consider that Mohammed is in point, nor has the claimant challenged the letter 7 October 2013, in which it was noted that "you have clearly failed to comply with your reporting conditions and the period of your residence accrued whilst you did not report it does not count in your favour", from which it is apparent that the claimant's period of residence was considered, albeit not regarded as justifying a legacy decision in the claimant's favour.

In the above circumstances, I dismiss the claimant's application for judicial review.