Kadyamarunga v Secretary of State for the Home Department

Introduction: The issue

There is, upon this application for judicial review, a narrow issue: Did the Defendant send to the Claimant a letter promising her that her application for leave to remain would be dealt with by the 20^th July 2011. For reasons that I explain further below if, as a matter of fact, such a promise was made then it is common ground between the parties that the Claimant is entitled to indefinite leave to remain (“ILR”). The issue before me therefore boils down to a question of evidence and as to the principles that I should apply in determining that issue. A sub-issue arising concerns the stance that the Secretary of State for the Home Department (“SSHD”) may appropriately take in challenging propositions of fact advanced by a claimant.

Facts: A brief summary

The Claimant is a Zimbabwean national born on 7^th February 1981. She has two children: a son born on 7^th July 2003 and a daughter born on 14^th September 2006. The children have no contact with their biological father. The Claimant arrived in the UK on 19^th September 2001 and claimed asylum on arrival. The Defendant refused that asylum application on 26^th September 2001. The Claimant’s appeal against that refusal was dismissed by an Adjudicator on 16^th November 2001. The Claimant was not removed and the support that she received from the National Asylum Support Services (“NASS”) was continued. On 21^st February 2005 the Newham African Organisation made representations to the Defendant on behalf of the Claimant and her family.

In 2006 the Claimant and her then partner received from the Defendant the standard Legacy questionnaire. The Claimant says that this was accompanied by a commitment made by the Defendant that a decision in respect of her application would be made by 20^th July 2011.

No such decision was, however, made by 20^th July 2011. At some time prior to September 2007 the UK Border Agency lost the Claimant’s file. In a letter dated 14^th September 2007 to the Claimant’s solicitors, responding to an application for production of the Claimant’s file, the following is stated by the Agency:

“Please accept our apologies for the delay. This is due to the difficulties that we are experiencing in retrieving particular BIA records that may contain personal data on the above named. The documents enclosed represent a partial disclosure, as your client’s Home Office file (K1096474) is currently designated as lost”.

On 19^th October 2012 her application for treatment under the Legacy programme, to which I make further reference below, was refused (“the Decision”). However she was given discretionary leave to remain of 30 months, i.e. until 18^th April 2015. This was subject to a condition that there be “no recourse” to the public funds. The Decision was in the following terms:

“You applied for Indefinite Leave to Remain (“ILR”) outside the Immigration Rules on 21 February 2005 but your application has been refused.

You arrived at Heathrow Airport on 19 September 2001 and claimed asylum which was refused on 26 September 2001. You appealed our decision and we received an Appeal Notice on 27 September 2001 which was dismissed on 16 November 2001. On 21 February 2005 you submitted an application for Indefinite Leave to Remain outside the Immigration Rules.

Your application is refused under paragraph 322(1) of HC395 as your application for variation of leave is not covered by any of the Immigration Rules.

As a result of the changes to the Immigration Rules which came into effect on 9 July 2012, any family life claim will now be given consideration under Appendix FM. Consideration of your claim has therefore been given under exceptions at paragraph EX.1(a). It has been accepted that you have a genuine and subsisting relationship with both your children one of whom has been resident in the United Kingdom for over 7 years. It is also considered that it would be unreasonable to expect your children to leave the United Kingdom. It is for this reason that the decision has been taken to grant you Limited Leave to Remain for a period of 30 months, thus entering a 10 year route to settlement. Please visit the UKBA website for further information and guidance regarding this.

You are not entitled to appeal this decision. Section 82 of the Nationality Immigration and Asylum Act 2002 does not provide a right of appeal where an applicant still has leave to enter or remain in the United Kingdom and so is entitled to stay here.

You have been granted permission to stay until 18 April 2015. Please ensure that you understand the conditions of your stay.

You are not required to leave the United Kingdom as a result of this decision”.

A Pre-action Protocol Letter was sent by solicitors acting for the Claimant to the Judicial Review Management Unit of the UK Border Agency on 5^th December 2012. Paragraph 2 of that letter explicitly refers to the existence of correspondence from the Defendant confirming that her case would be dealt with by July 2011. The relevant paragraph is in the following terms:

“Our client has been granted discretionary leave to remain in the UK until 18 April 2005. Our client’s case was being dealt with by the Case Assurance and Audit Unit as one of the Legacy cases. Our client received correspondence from the UK Border Agency confirming that her case would be dealt with by July 2011.

We submit that our client should have been granted Indefinite Leave to Remain on the basis of the UK Border Agency’s guidance on grant of discretionary leave to remain”.

The letter then set out the relevant guidance which applied to applicants under the Legacy scheme and then stated:

“This client received a written undertaking from the UK Border Agency to state that a decision would be made in her case by 20 July 2011. She did not receive the decision until 19 October 2012. The decision should therefore be made in line with the rules in place as at 20 July 2011”.

It is common ground in the present case as I have already observed that had the decision been taken by 20^th July 2011 then the Claimant would have received ILR under the rules which then applied.

The application by the Defendant to serve a Defence out of time: CPR 54.8, 54.9 and 54.17

An issue arose in the course of this judicial review as to the approach which a Court should take when confronted with an extremely last minute application by the SSHD to defend a case following a period of virtually total inertia on the part of the Defendant. Further, it concerns an important point of evidence and practice which is whether it is proper for a defendant, and those advising, to deny a fact asserted by a claimant when the defendant has no discernible evidential or other basis upon which to justify a denial can be averred. In order to explain how these issues arise it is necessary to record the procedural history.

The application to apply for judicial review was served upon the Defendant on 4^th April 2013. No Acknowledgement of Service (“AOS”) was served. In the absence of the service of an AOS permission to apply for judicial review was granted on 24^th June 2013. Thereafter no steps were taken by the Defendant until immediately before the hearing of the substantive application for judicial review. The Defendant was certainly aware of the application because by letter of 11^th April 2013 Treasury Solicitors on behalf of the SSHD acknowledged receipt of the Claimant’s bundle of documents in support of their application. Further, the Treasury Solicitor indicated that, by their own calculation, they had until 25^th April 2013 to serve the AOS. Finally, they identified a named individual to whom the case had been allocated. Thereafter the case disappeared off the Defendant’s radar.

The substantive application was listed for 5^th February 2014. On 4^th February 2014 the Defendant issued an application for permission (a) to submit out of time a Detailed Grounds of Defence and (b) to be entitled to make submissions and be heard at the substantive hearing on 5^th February 2014, i.e. the following day. The reasons said to justify permission were as follows:

“Due to administrative pressures, the Defendant has overlooked to serve detailed Grounds of Defence in this matter. She submits however that the lateness of her service of the same does not prejudice the Claimant, since the Defendant introduces no new evidence and merely relies upon a denial that she ever sent or otherwise made an assertion to the Claimant that her application for discretionary leave to remain would be dealt with before 20 July 2011. The late service need not therefore disrupt the timetable of the proceedings, due to be heard on 5 February 2014. The failure of the Claimant to file and serve a trial bundle including the Claimant’s witness statement prior to 3 February 2014 is not the responsibility of the Defendant, whose contribution towards the bundle was not required. The Defendant considers that her presence at the final hearing and reliance on her detailed Grounds would assist the Court in the fair consideration of the Claimant’s claim, without in any way prejudicing the Claimant”.

However, the application form, containing the above reasons, was not signed by the Applicant’s legal representatives and therefore there was no Statement of Truth that the points made in the proposed defence were true. In fact the application form was entirely anonymous.

Attached to the form was a 7 paragraph Defence. The gravamen of the Defence in its unamended form (see below) was set out in paragraphs 3-5 and stated:

“3.

The Defendant denies that any such letter or assertion was ever sent or made. In the absence of any such assertion having been made by the Defendant, the Defendant was entitled to consider the application for discretionary LTR on the basis of the policy in place at the date of the decision, namely the policy in place after 9 July 2012.

4.

In accordance with that policy, the Defendant assessed the Claimant’s application under Appendix FM to the Immigration Rules and in particular, Exceptions paragraph EX.1(a). By Notice of Decision dated 19 October 2012, the Defendant set out the reasons why ILR was not granted, but instead, LLR for 30 months was awarded. The Claimant thereby entered a 10 year route to settlement.

5.

The Defendant denies that the burden is on her to prove that a letter containing an assertion of a decision by 20 July 2011 was sent to the Claimant. The very fact that the Defendant stores client’s records, yet has no record of any such letter, substantiates the Defendant’s position. It is for the Claimant to prove her claim, and despite retaining copies of other letters she was sent, she claims to have mislaid the most important document upon which she seeks to rely”.

No reasons or particulars were given to support the bare denial contained in paragraph 3. Miss Naomi Candlin, who appeared on behalf of the Defendant, applied orally for permission to rely upon the Defence and to make submissions. She explained that the basis upon which she had drafted the bare denial in paragraph 3 was exclusively her instructions from the Treasury Solicitors who, she informed me, will have taken their instructions from the Defendant. However, she accepted that there was no evidential basis upon which she could, properly, maintain a bare denial and ultimately she sought to amend paragraph 3 of the Defence to remove the denial and amend it so that the Defendant “did not admit” that any such letter or assertion was ever sent or made. Miss Candlin amended the Defence in view of the letter (contained within the Claimant’s hearing bundle) to which I have made reference at paragraph [4] above, in which the Border Agency confessed to having lost the Claimant’s file. She accepted that in the circumstances neither her instructions nor the evidence before the Court could justify anything other than a “non admit”.

I should record that Miss Candlin was only instructed to appear for the Defendant extremely late on and having had a chance to re-consider the position, correctly, she downgraded her Defence in the manner described. She also, again correctly in my view, conceded that if the Claimant succeeded in establishing that, according to the requisite standard, a commitment letter had in fact been sent to the Claimant it followed, in law, that she would have been entitled to her application being evaluated under the “old rules” and as such she would have been entitled to ILR. It was in this manner that the only issue arising for determination was the question of fact identified in paragraph [1] above.

Before making the application upon the basis of the amended Defence and concession the position was as follows. First, no proper application was before the Court and no AOS had been served. Secondly, a proposed defence was advanced which positively denied that a commitment letter had in fact been sent. However, on the face of the documents on the Court file the basis of the denial appeared unjustified and no explanation or particulars were provided by the Defendant by way of explanation. Thirdly, a key issue was overlooked viz whether the Defendant accepted that if her only argued contention (that no letter had been sent) failed the Claimant was then entitled to ILR. If this had been the position maintained by the Defendant I would not have granted permission to serve a defence or participate by making submissions. Fourthly, and in any event, the application was made vastly late and certainly not “promptly” (cf CPR 54.17(2)). Upon the basis of the amendment to the Defence and the concession I granted the application to submit the Defence and participate in the proceedings. This was upon the basis that as amended and with clarification to the Defence no prejudice would be suffered by the Claimant. On the contrary the issues would be substantially narrowed down to a single question of fact. Further, and notwithstanding the extreme lateness of the application, I was anxious to hear what the Defendant had to say about the question of the approach I should take to the issue of evidence arising.

Before considering the evidential issue arising and given the way in which the Defendant’s application was argued I should set out some observations on the approach adopted by the Defendant towards the Claimant’s case. The circumstances in which the Defendant came to be involved in these proceedings were profoundly unsatisfactory. It is apparent from documents shown to me by Miss Candlin that this case fell into an administrative black hole within the Treasury Solicitor until very shortly before the hearing. Miss Candlin does not seek to put a gloss upon this administrative failure and conceded that it was unacceptable.

I would, however, make the following observations about the approach which should be taken in a case such as the present.

First, in relation to when it is proper to deny facts, it is trite to say that there is an obligation of candour upon the Defendant to set out the relevant facts and the reasoning behind the Decision making process: see Tweed v Parades Commission for Northern Ireland [2007] 1 AC 650 at paragraphs [31] and [54]. In R v Lancashire CC Ex p. Huddlestone [1986] 2 All ER 941 Purchas LJ stated that a defendant “should set out fully what they did and why so far as it is necessary fully and fairly to meet the challenge”. In R (Quark Fishing Limited) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409 at paragraph [50] the Court referred to the: “…very high duty on public authority respondents, not least central government, to assist the Court with full and accurate explanations of all the facts relevant to the issues the Court must decide”. It follows that if the Defendant was to proceed to deny that the Claimant received the commitment letter then some proper evidential basis for that denial was required. For example, the Defendant might have been able to point to the file relating to the case in order to demonstrate that it was complete in which case the inference could reasonably be drawn that the absence of any reference to such a commitment letter on the file was a strong indication that it simply did not exist. However, in the present case given that the file had been lost in 2007 it was, plainly, not open to the Defendant to advance any such argument. The Defence as originally drafted upon the basis of instructions was not a proper pleading to put before the Court in the absence of corroborating evidence and/or a witness statement explaining the basis for the denial.

Secondly, in relation to the fact that it is now more or less a notorious fact that the Defendant is overwhelmed by both applications for leave to remain and disputes over such decisions this is not in and of itself an excuse for not complying with the procedural rules governing judicial reviews. I acknowledge that lawyers acting for the Defendant (both in-house and external) may be under considerable strain in cases of this sort. However, it is not acceptable for the internal problems of the Defendant or her advisors to be visited upon the judicial system. In deciding whether I should exercise my discretion in favour of permitting the Defendant to serve a Defence and make submissions I have had regard to the tenor of the observations of Hickinbottom J in Singh v SSHD [2013] EWHC 2873 (Admin) (17^th September 2013). In relation to the approach that the Court should take towards failures on the part of the Defendant to serve Acknowledgements of Service, the Judge recorded, not wholly unsympathetically, the difficulties facing the Defendant but stated, at paragraph [22], as follows:

“22.

I cannot lay down any general guidelines. Of course, each case must turn on its own facts. Some complex cases may well warrant a longer time than 21 days, even to make an initial summary response. But in my view, even with the challenges the Secretary of State faces, such cases should be few. There should be very few cases indeed which require more than 6 weeks in which to lodge a summary response. In respect of those cases, there needs to be some very compelling reason demonstrated for the requirement for additional time. In the cases before me, there has been and is no such reason. In my view, the Secretary of State cannot simply pray in aid a lack of resources or foresight to justify an extension of time that, even in standard cases, more than doubles the time allowed by the rules”.

In the present case the Defendant not only never served an AOS but sought an exercise of discretion in her favour relying upon an unjustifiable denial in circumstances where there was no proper or justifiable basis for failing to serve an AOS or Defence.

Thirdly, the risk of problems arising in “Legacy” cases is well known and for the Courts to be able to adjudicate fairly in difficult circumstances necessitates full cooperation from the Defendant. In these cases the Courts have already had cause to note the scale of the problems arising. The fact that this is an acknowledged problem is however not a reason for defendants failing to adhere to normal procedures. In Hakemi & Others v SSHD [2012] EWHC 1967 Burton J stated:

“1.

The claims arise out of the so-called “Legacy Cases”. By the end of 2006, there was a massive 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”)”.

The various travails which beset the administration of the Legacy applications was also set out in the judgment of Simler J in Hamzeh & Others v SSHD [2013] EWHC 413 (Admin) (20^th December 2013). Given the accepted administrative difficulties faced by the SSHD and the problems this frequently entails for the Courts there must be a correspondingly high duty on the SSHD’s legal advisors to do whatever can be done to ensure that disputes relating to such cases can be addressed fairly by the Courts and this must include avoiding advancing propositions to the Court which cannot be justified.

The underlying law

In view of the fact that the issues have been substantially narrowed in this case it is not necessary to dwell in any detail upon the law relating to legitimate expectations. It suffices to state that the general rule is that decision makers are entitled to apply the policy extant at the time of the decision to the facts and circumstances arising: see in this regard Mohammed (ibid) at paragraph [19]; Ravichandran v SSHD [1996] Imm. AR 97; Hamzeh (ibid) at paragraph [18]. However, there are circumstances in which the decision maker must take into consideration the fact that an earlier decision was unlawful or that there has been a failure or omission to perform a duty, and this consequential illegality has caused historic injustice to the individual: see for example Rashid v SSHD [2005] EWCA Civ 744; Secretary of State for the Home Department v R (S) [2007] EWCA Civ 546 at paragraph [45]; KA (Afghanistan) v SSHD [2013] 1 WLR 615 at paragraph [12] and [13]; and EU (Afghanistan) v SSHD [2013] EWCA Civ 32 at paragraph [6]; Mohammed (ibid) at paragraph [20]. An example includes where the decision maker has made a clear promise or commitment to do something such as (in the context of the present case) decide an application before a specified date: See e.g. Geraldo v SSHD [2013] EWHC 2763 (Admin) at paragraph [111]. In such cases it may be unlawful to apply a “new” policy to “old” circumstances.

In the light of the above I now turn to consider the evidential question before me.

The narrow issue of fact which arises on this appeal is whether the Claimant received a letter from the Defendant promising in unequivocal terms that her application would be decided by or before 20^th July 2011. If the Claimant received such a letter then it created a legitimate expectation that her application would result in a decision before the stipulated date and that upon the basis of the Rules as they then applied she would have been entitled to ILR.

In view of the Defendant’s acceptance that the proper course was to “not admit” the existence of the letter (rather than deny it) then on one view I should simply accept without question the position set out in the Claimant’s witness statement. However, in my judgment that would not be the correct approach. It is the duty of the Court positively to assess evidence put before it to see whether it is credible, consistent and logical. The individual and personal interest of claimants in immigration cases is acute. The public interest arising in these immigration cases is also great. And the administrative problems confronting the Defendant are legion. The approach to the review of evidence needs to reflect these competing considerations and concerns. Anxious scrutiny can involve the Court requiring those seeking rights to remain to adduce proper evidence in support of their claims, bearing in mind the legitimate difficulties that many individuals may face when gathering evidence. In circumstances such as these the following questions are relevant to the assessment that I make of the Claimant’s evidence:

For the reasons that I summarise below I am satisfied on the evidence before me in this case and upon these particular facts that the Defendant did send a letter to the Claimant committing to take a decision before 20^th July 2011.

First, the Claimant has set out a clear and unequivocal statement that such a letter was in fact sent and has set out also the circumstances which led to her not being in present possession of that letter. No application has been made to cross-examine the Claimant on this evidence. In her witness statement Miss Kadyamarunga states as follows:

“7.

On 21 February 2005 and assisted by our then legal representatives at the African Newham Organisation my then partner, George Mudzekwa, and I submitted further representations to the Home Office relating to Article 8 and the then situation in Zimbabwe. The office has since closed down. I was not given a copy of the representations. My partner may well have been as at this time he was taking the lead in our immigration matter.

8.

Sometime around 2006 we received a letter from the Home Office stating that we were being considered under the legacy and that we had to complete a questionnaire. The letter was addressed to my partner and I understood that it was in response to the representations made on 21 February 2005. I absolutely recall without any doubt that the letter advised that a decision would be made with regards to our case by 20 July 2011. I remember this because we thought at the time that it was so long away and that my children would be older when we finally had a decision. My partner completed the form for us all and submitted it. We did so without the benefit of legal advice. My children and I were listed as dependents and I recall that my own Home Office reference number was given.

9.

I believe that my partner kept a copy of the letter but I was not given it. My partner and I are no longer together and I believe that either he destroyed it when we separated or kept it for his own immigration purposes. Alternatively he may have simply lost it over the years as this was all done a long time ago. I was the victim of domestic violence and so it is impossible for me to track him down now”.

Secondly, the witness statement contains a Statement of Truth signed by the Claimant. The purpose behind a Statement of Truth is that the party certifies the accuracy and truth of the matters advanced and is thereby less likely to advance speculative, fanciful or false statements. If the party is cross-examined upon the evidence veracity can become an issue by virtue of the Statement of Truth.

Thirdly, the Defendant has not in any meaningful way challenged this evidence. I have addressed the circumstances giving rise to the Defendant’s non-admission in Section C above. Although on the particular facts of the present case there may well in practice not be much of a difference between a denial and a non-admission in other cases the distinction might be important. A denial by a public authority which is supported by reasons or an explanatory witness statement is entitled to be accorded significant weight. It may sit quite heavily in the scales against a claimant’s evidence. For example, the Defendant might deny the existence of the letter upon the basis that the relevant file has been examined, that it has been found to be complete and comprehensive and that it is accordingly a fair inference to draw that the letter – if it truly existed - would have been on the file. Alternatively, the Defendant might explain that a letter of the sort claimed to exist is simply not the sort or type of letter that would have been sent at the time given the systems and policies then in place. In this case the non-admission of the letter has the consequence of leaving the full responsibility on the Claimant to establish the relevant facts but this time without having to overcome any positive case advanced by the Defendant which warrants a denial.

Fourthly, the Defendant’s decision actually records the Claimant’s application as having been submitted in 2005 (see paragraph [5] above). The basis upon which the Defendant so found in the Decision is nowhere explained. However, it places the Claimant’s application squarely within the time period when the Defendant was treating applicants as falling within the Legacy arrangements.

Fifthly, the Claimant’s evidence establishes that it is exactly the sort or type of letter that might very well have been sent in or about 2006. The Legacy Programme which was in place expressly acknowledges the possibility that “…a written commitment that a case would be considered before 20^th July 2011” might well have been made. Paragraph 4.2 (Exceptional circumstances) provides as follows:

“Where removal is no longer considered appropriate following consideration of the exceptional factors set out in Paragraph 353B of the Immigration Rules and the guidance in Chapter 53 of the EIG, 30 months DL should be granted, unless one of the following situations applies:

•

where the UK Border Agency (as it was) made a written commitment that a case would be considered either before 20 July 2011 or before 9 July 2012, but failed to do so, and later decides that a grant is appropriate;

•

where the UK Border Agency (as it was) made a decision either before 20 July 2011 or before 9 July 2012 that a grant of leave on the grounds then listed in Chapter 53 was not appropriate, but after that date carried out a reconsideration of that decision and – on the basis of the same evidence – decides that the earlier decision was wrong and leave should have been granted”.

It is accordingly clear that the Border Agency was, in or about 2006, proffering written commitments that cases would be considered before 20^th July 2011. The Defendant’s own policy documents are thus consistent with the Claimant’s evidence. In this regard, in R on the application of Mohammed v SSHD [2014] EWHC 98 (Admin) Lewis J stated, in paragraph [6], of the Legacy and Policy framework:

“Furthermore, in July 2006, due to the backlog of unresolved asylum cases the Defendant put in place a programme, often referred to as the Legacy programme. The aim was to deal with cases of individuals who had claimed asylum prior to 5 March 2007 either by deciding to seek to effect removal of an individual or by granting him or her leave to remain. The aim was to deal with these cases within 5 years”.

As of 2006 the Border Agency was therefore (a) seeking to resolve matters within 5 years, i.e. by July 2011 and (b) tendering written commitments to that effect.

Sixthly, the reasons given by the Claimant for not being able to produce a copy of the letter are plausible. There is no reason for me not to accept those reasons. First, the letter is not the sort of letter that would reasonably have been perceived as of great importance or significance to the recipient in 2006. It is understandable that it might not have been treated as having “gold dust” status. It is not, for example, a letter granting permission to remain. It was simply a letter stating that the process pursuant to which the application might be resolved could take up to 5 years. Secondly, the Claimant’s explanation as to why the letter was misled has the air of truth about it and is consistent with other evidence on the file. She points out that at the time the letter was sent to her husband and not to her. This accords with documentary evidence before the Court. I note in this regard that a letter from the UKBA dated 17^th January 2009 with the Claimant’s reference upon it (K1096474) was in fact sent to her husband – Mr Madzukwa – even though his application had a different reference number (M1128568/3). This corroborates the Claimant’s contention that correspondence relating to her application was in fact being addressed to her husband and it is not in dispute that she has separated from her husband and does not know of his whereabouts.

For all the above cumulative reasons I accept the Claimant’s evidence that a formal commitment to decide upon her application before 20^st July 2011 was made to her.

In conclusion: (a) the application for judicial review of the Decision is granted; and (b) the Claimant is entitled to an order that she be granted indefinite leave to remain.