Moussaoui v Secretary of State for the Home Department

This is an application for judicial review by the claimant an Algerian National. The original claim was lodged on 29 May 2012 and it sought to challenge the decision to refuse to grant the claimant leave under the legacy programme and sought an order requiring the defendant to reconsider the claimant’s application as a legacy case and grant him leave to remain in the UK in line with legacy practice. Permission was refused on paper by Timothy Straker, QC, sitting as a deputy High Court judge on 22 August 2012. Proceedings were then stayed by a consent order dated 5 December 2012 to allow for a reconsideration and subsequently a new decision dated 2 February 2013 was made and leave to remain was refused. Amended grounds for review were served by the claimant on 19 February 2013 and permission was granted following an oral renewal hearing on 30 October 2013 by Geraldine Clark, sitting as a deputy High Court judge.

The claimant served draft re-amended grounds on 25 September 2014 on the defendant and the defendant was invited to respond as to whether she agreed the application to amend. By letter of 1 October 2014 the defendant responded to the proposed re-amended grounds of claim and in such letter asserted that there was no “substantive legacy decision” in 2011 and the case was passed to CAAU as an “undecided case”.

As a result of this disclosure the claimant applied to amend the re-amended grounds and this application was before me as a preliminary matter.

The chronology, so far as relevant is as follows: the claimant came to the UK in 1998 and immediately applied for asylum. Asylum was refused in 2001 and his appeal was dismissed in September 2002; he became appeal rights exhausted in December 2002. He lost his accommodation in 2005, becoming homeless and stopped reporting. He resumed reporting in April 2008.

On 18 June 2010 the UKBA wrote to the claimant stating that his case was in the backlog of older asylum applications and the Case Resolution Directorate (CRD) was responsible for his case. The letter requested photographs together with certain other documents. On 17 September 2010 he received a letter from UKBA stating that his application was being processed by one of the casework teams. On 20 September 2010 his then solicitors sent a letter of authority and on 31 December 2010 they wrote to UKBA noting that they had still to hear regarding the present position of our clients “legacy application” and requesting an update on the application. On 23 June 2011, there was a further chasing letter, this time to the Case Assurance and Audit Unit. In September 2011 the claimant’s MP called the UKBA for an update and was told no decision was yet taken.

The key letter which gave rise to this claim was dated 9 November 2011. On 6 October 2011 the claimant applied for NASS support and this was rejected by letter of 9 November 2011, which stated:

“You have applied for support on the basis that you have an outstanding legacy case and have not yet had a decision.

Your case did form part of the backlog of older cases, which the UK border agency was working to conclude within the Case Resolution Directorate (CRD).

Your case has now been fully reviewed by CRD and the outcome is that you have no basis of stay in United Kingdom. You should make arrangements to leave the United Kingdom without delay.” [Emphasis added]

By letter of 17 January 2012, Stoke-on-Trent Citizens Advice Bureau wrote on behalf of the claimant to the Case Assurance and Audit Unit stating:

“our client has received no separate decision letter from the Case Resolution Directorate refusing to grant status under the legacy programme. We request therefore that a decision be issued to our client at our offices as soon as possible.”

In a letter of 2 May 2012 from the defendant to the claimant’s MP, the defendant confirmed that the claimant’s case had been reviewed and it was deemed that the original decision should remain extant. The material sections stated:

“I can confirm that we wrote to [the claimant] on 12 July 2010, asking him to submit documents that would enable us to resolve his case. In this letter [the claimant] was informed that our case resolution directorate (CRD) would seek to resolve cases by either removing individuals or granting them leave to remain in the UK.

Consideration of a case by CRD does not involve any application (and is not an application in itself) nor result in an immigration decision being made, unless such applications were already outstanding, nor does it create additional criteria of entitlement to remain in the UK.

As stated in our letter of 9 November 2011, we have reviewed [the claimant’s] case under the remit of the Legacy Casework Programme. The review considered the original decision made on [the claimant’s] case and whether he had any outstanding applications or representations for leave to remain in the UK. Following the review, it was deemed that the original decision made on [the claimant’s] case should remain extant. As matters currently stand, [the claimant] has no basis of stay in the UK and should make arrangements to leave the country as soon as possible.” [Emphasis added]

On 29 May 2012 this judicial review claim was lodged. On 22 August 2012 permission was refused on the papers for judicial review. On 5 December 2012 the parties entered into a consent order staying the judicial review proceedings and providing for the defendant to consider the further evidence, including a witness statement dated 17 October 2012 and to reconsider his case as a whole.

On 2 February 2013 the defendant stated that the case had been fully reviewed by CAAU and the outcome was that the claimant had no basis of stay in the United Kingdom.

On 30 October 2013 permission for the application for judicial review was granted. On 5 August 2014 there was a further letter from the defendant considering whether to grant the claimant leave on the basis of exceptional circumstances.

On 1 October 2014 the defendant wrote to the claimant’s representatives stating that there was no substantive legacy decision by the CRD in 2011.

As a preliminary point I have to deal with the application dated 6 October 2014 to amend the grounds. This amendment arose as a result of correspondence between the parties in early October 2014. The claimant had prepared draft re-amended grounds and served these on the defendant on 25 September 2014. The defendant was invited to respond as to whether she agreed to the application to amend. By letter dated 1 October 2014 the defendant responded to the proposed amendment stating that there was no objection to the amendment on the legacy grounds but submitting that the defendant did not consent to the amendment of the grounds to raise the fresh claim point. The defendant submitted that she had not received representations in support of a fresh claim but offered to consider an application and make a fresh decision. Accordingly, the defendant submitted that the claimant has an alternative remedy and the application for judicial review should be adjourned pending a decision on the fresh claim.

I have no doubt given the letter of October 1, 2014 that the amendment in relation to legacy should be permitted. I will consider below the extent to which there was a “misunderstanding” on the part of the claimant in relation to the question of whether or not a decision was taken in November 2011 but prior to the letter of 1 October 2014 the basis of the claimant’s challenge (as is evident from the draft amended grounds dated 25 September 2014) was that there was a decision taken some time between the middle of September and 9 November 2011, and since no reasons or detail were provided, the decision was unlawful. In the letter of 1 October 2014 the Treasury Solicitor stated:

“for the avoidance of doubt, it is confirmed that there was no substantive legacy decision by the CRD in 2011, the contemporaneous records do not show a decision on the database, there is no minute of decision on file, no decision letter was written and the case was passed to CAAU as an “undecided” case.”

As a result of this letter the claimant was obliged to seek an amendment to his grounds to address this issue and on 6 October 2014 made an application to amend his grounds and address the issues raised in the letter of 1 October 2014. The claimant’s representatives in their letter of 3 October 2014 suggest that the judicial review claim had been premised on an erroneous statement as a result of being falsely led to believe that his case had been considered and refused and expressing concern that the erroneous understanding was not corrected. Again, I will deal below with the reasons why the proceedings unfolded as they did; it is sufficient at this stage to say that the amendment to the legacy grounds should in my view, be permitted to ensure that the real dispute between the parties can be adjudicated upon.

In relation to the fresh claim, this was a matter which was raised in the draft amended grounds dated 25 September, and therefore, in my view, no prejudice arises to the defendant who has had sufficient notice to be able to respond to this issue. However I note the offer by the Secretary of State to consider any fresh claims and this does provide an alternative remedy for the claimant. The existence of an alternative remedy does not oust the jurisdiction of the court, but it does weigh as a factor in the decision whether to grant permission to amend the grounds in relation to this issue. The court has jurisdiction not to quash a decision if satisfied there would be no purpose in so doing; however, if the decision letter should prove to be manifestly flawed the court should be slow not to quash such a decision. The parties were able at the hearing and with consequential written observations to address the issue of fresh claim and therefore the granting of permission at this stage to amend the grounds does not affect the conduct of the substantive hearing. Having considered all these factors in the circumstances, I am prepared to allow the amendment to allow the fresh claim to be argued.

Turning then to the grounds of challenge following amendment. There are 3 grounds which need to be considered:

Dealing with the first ground that the claimant has suffered a fundamental historic injustice. The claimant refers to the judgement of King J in Geraldo and others [2013] EWHC 2703 at paragraph 28 and 29:

“28.

Translated into legal principle as said to be recognised in the authorities, this challenge to the lawfulness/rationality of the 2012 decisions is put on the basis of the failure of the defendant 'to take into account as a legally relevant factor' the need to correct 'historic injustice' occasioned by the failure to consider their cases by 19 July 2012. The line of authority here relied upon is that beginning with the Court of Appeal decision in R (Rashid) v SSHD [2005] EWCA Civ 744 as further considered in, amongst other cases, R (S) v SSHD [2007] EWCA Civ 546 . Other cases on 'correcting historic injustice' cited to me included AA (Afghanistan) v SSHD [2007] EWCA Civ 12; R (on the application of S, H and Q) v SSHD [2009] EWCA Civ 142; SL (Vietnam) v SSHD [2010] EWCA Civ 225; KA (Afghanistan) v SSHD [2012] EWCA Civ 1014; EU (Afghanistan) v SSHD [2013] EWCA Civ 32; Mohammed v SSHD [2012] EWHC 3091.

29.

What is clear from all these authorities in my judgment however is that (i) the historic injustice must be based upon some prior illegality (in all these cases there was either a legally flawed prior decision, in some instances such as in Rashid by reason of a decision made in disregard of a relevant policy, or at least a legally flawed failure to carry out a duty, as in KA, which impacted upon the ability of the applicant to make out an asylum claim) and there must be sufficient causal connection between that illegality and the alleged historic injustice caused thereby, and the alleged prejudice caused to the claimant by the decision under challenge to justify the intervention of the court. Considerations of 'conspicuous unfairness' are not in themselves a relevant test to trigger the intervention of the court, although the degree of prejudice may be a relevant factor when it comes to the question of remedy.”

In that case the challenge was based on an alleged 'historic injustice' of the failure of the defendant to deal with the claimants' cases prior to that date when the old ILR policy was in force, in breach of an alleged time limited commitment given by the defendant to make decisions on legacy cases by the 19th July 2011 or in the alternative in breach of the obligation of a public authority to make an administrative decision within a reasonable period of time (the unlawful delay basis of the alleged injustice) and the failure of the defendant when exercising her discretion in 2012, to correct this historic injustice by granting ILR when she had the ability to do so given her wide discretion under section 4(1).

Turning to the facts of this case and in particular the contention that there has been an illegality as a result of the defendant originally communicating to the claimant and thereafter maintaining that a decision had been taken in or around November 2011.

In oral submissions the illegality was expressed as follows: had the case been considered in November 2011 when the claimant was told he had been considered, his case would have been considered under 395C, this means there has been an historic injustice and brings it within the Rashid line of authority. Alternatively, the claimant submits that the court should find that some sort of decision did take place between September and November 2011 and that decision requires reasons, and the failure to provide reasons was unlawful. Counsel for the claimant submits that the claimant was informed that his case had been reviewed and as a result he had been refused NASS support. Counsel therefore submitted that it is irrational to say there was no decision as it was acted upon. She accepts that there was no “immigration decision” in the sense that it is a decision which gives rise to a right of appeal, but nevertheless contends there was a decision. In summary, the claimant’s case is that the prior illegality is either that there was a decision and this was made without reference to 395C and/or no reasons were given; or in the alternative, that there was no decision.

In reply, counsel for the defendant submits that if there was no decision there can be no historical injustice since it is clear from the judgement in Geraldo that where there is a discretion, there cannot be an historic injustice: there was no entitlement to leave to remain in 2011 and therefore there can be no illegality. Further, if there was an historic injustice it would lead to a decision on the current law and policy which would mean that the Secretary of State would retake the decision applying 353B and there is no possibility of a positive outcome.

It is appropriate at this point to set this case in context. This case originally challenged the defendant’s failure to resolve his case as a legacy case. Since the original challenge was lodged there have been a number of significant cases in relation to legacy. It is not necessary for the purposes of this claim to review the way in which claims have evolved. Suffice it to say that the legacy programme was a plan to deal with the backlog of failed asylum seekers, but it is now clear from the case law that the legacy programme did not amount to an amnesty and cases were dealt with on their individual merits. The background to the legacy cases was set out in the judgement of Ouseley J in Jaku and Others v SSHD [2014] EWHC 605:

“[2] For present purposes, I need say little about the Legacy Programme. It has been set out in detail in many cases and summarised in others. In 2007, the Home Office faced a large backlog of asylum claims, arising from the rapid increase in such claims in the late 1990s and early 2000s, which had not been resolved either by a grant of some form of leave to remain or by removal of the unsuccessful claimants. The Home Office wanted to avoid new asylum claims simply joining the back of that queue. So it decided that asylum claims received after 5 March 2007 would follow the processing and decision-making targets in the New Asylum Model, NAM, by whatever name now known; those claims received on or before 5 March 2007 constituted the Legacy Programme. The majority, but at that time by no means all of the cases in the Legacy Programme, were not awaiting the first decision on the initial asylum claim, but rather a decision on further claims, said to amount [to] fresh claims, especially from failed asylum seekers whose removal had not been achieved, or were failed Claimants awaiting removal.

[3] There are no Immigration Rules which govern claims or cases in the Legacy Programme but not claims or cases in the NAM; and the policy in Ch 53 of the Enforcement Instructions and Guidance, EIG, is applicable to both the Legacy Programme cases and to cases in the NAM. In either programme where the Immigration Rules do not entitle someone to the grant of leave to enter or remain, their case is then considered outside the Rules against the policy in Ch 53, although there are provisions in the Rules to be considered before a removal decision is taken.

………………………………………

[13] Simler J in Hamzeh and others v SSHD [2013] EWHC 4113 (Admin), dealt with a challenge to the principles so far established in the case-law and with the significance of what again were put forward as various policy documents; I agree finally with what she says particularly in paras 28 – 46, subject to a very minor point. Paragraphs 38 – 40 bear express citation:

38 It follows from my rejection of Mr Turner's submissions that there was a change in policy or practice, that the policy applicable to cases in the Legacy Programme to be applied by CRD (and later CAAU) remained at all material times, the general law and policy as it stood at the time of consideration of an Applicant's case, in the same way as elsewhere in the UKBA. The replacement of paragraph 395C by paragraph 353B therefore had effect for Legacy Programme Applicants just as it did for those elsewhere across the UKBA. Grants of indefinite leave to remain were made by CRD only where there was a positive outcome of the application of the factors in paragraph 395C (or 353B) and Chapter 53 EIG, not because the case fell within the Legacy Programme, but because the general guidance applicable across UKBA produced that result. The Legacy Programme created no new rights. [emphasis added]

39 …………………………….

40 It follows from this that I reject as unsustainable, Mr Turner's submission that consistency required all cases in the Legacy Programme to be treated alike or have the same substantive outcome. The fact of being in the Legacy Programme did not mean that the cases were alike or should be so treated. They were not alike – there was a wide range of factual circumstances differentiating each case from the next. Any different approach would be inconsistent with two important principles that underpin the immigration system: firstly, that cases should be decided on their individual merits and secondly that they should, wherever possible, be decided on the basis of the law and policy in place at the date of decision. Mr Turner identified no special quality (once it is accepted that the Legacy Programme created no new rights and was an operational programme only) that can be said to be true of all legacy cases which merits treating them as a discrete or defined group separate from cases outside the Legacy Programme and to which different policies or practices should apply.”

The function of the Case Resolution Directorate was considered by Burton J in his judgement in Hakemi and others v SSHD [2012] EWHC 1967 at paragraph 6:

“The CRD was to consider the grant of leave outside the Immigration Rules but by reference to para 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.””

Against that background I turn then to consider the evidence concerning the making of a “decision” in or about November 2011 in this case and noting that I am not using this term in the sense of the statutorily defined term of an immigration decision giving rise to an entitlement to an appeal.

The claimant relies on various items of correspondence of which the following are in my view the material ones:

The claimant submits on the basis of this evidence that there was some sort of decision taken by the defendant in or around November 2011. Further, the claimant points to the pleadings in this judicial review claim: At paragraph 4 of the amended summary grounds of defence dated 12 March 2013 the defendant stated that “the review of the claimant’s case by the Case Resolution Directorate (CRD) concluded that there was no basis to grant him leave to remain in the UK.”

Notwithstanding this evidence Counsel for the defendant submits that there was no decision here and that a misunderstanding by the claimant cannot create obligations in law. There was no consideration of 395C between September and November 2011 and there was no obligation in law to have that consideration. Counsel for the defendant submitted that the context of the letter in November 2011 was that individuals apply for support and if they make a fresh claim or an application to stay they can be entitled to support in certain circumstances. In this case there was nothing outstanding. The letter of November 2011 was just a statement of the facts as they existed at that time and the claimant cannot seek to review a decision which does not exist. Counsel referred to the original grounds of defence at paragraph 14 which stated:

“the claimant made a number of applications for asylum support. These were dealt with by the relevant section of CAAU who were responsible for the claimant’s case. In the course of assessing the claimant’s application for asylum support, his case was reviewed by CAAU, successor of CRD, and it was determined from UKBA’s records that the claimant had no outstanding applications to be considered by the SSHD……

It is submitted by the defendant that the manner of notification of the outcome of the review of the claimant’s case by CRD or CAAU does not affect the validity of the notification itself. The claimant’s case was reviewed and it was determined that he had no basis of stay in the UK and should make arrangements to leave. This was a statement of fact, not a decision…”

Counsel for the defendant submits that the defendant did not review the case. She just “checked the file” for NASS purposes. She “looked at it” but did not review it for the purposes of 395C. She rejects the correspondence to the claimant’s MP as of no legal significance. Counsel characterises it as a “misunderstanding” and the defendant relies on the GCID case record sheet which has now been disclosed. This refers to the application for section 4 support being refused. It does not refer to any wider review or reconsideration and there is no indication that the case was dealt with under 395C.

Counsel for the defendant further seeks to put 395C in context and referred to the description in the judgement of King J at paragraphs 48 to 52 of his judgement in Geraldo. I set out the extracts relevant to this case below:

“48.

Not all cases within the programme necessarily involved a fresh claim submission of the kind with which FH was concerned (which would involve consideration by the case worker of the fresh claims and paragraph 353 of the Immigration Rules), and as Eady J pointed out when himself considering the workings of the legacy programme in Baser v SSHD [2012] EWHC 3620 (Admin), at para 15, the mere fact that an individual was being considered under the programme did not entail an immigration decision since 'that would only arise if a fresh application (for leave to remain) had to be considered'. In some cases consideration under the programme would simply lead to a confirmation, where no further applications or submissions had been received, that the applicant in question still had no basis for leave to be granted and should be removed. The case worker did still however, even if there were no application for leave to remain within the Rules, on the basis of for example a fresh claim, have to consider whether or not to make a decision to remove the individual.

………………………

51.

As Miss Anderson submitted, paragraph 395C went only to the question whether the defendant should stay her hand on removal from the UK, in the case of an overstayer. It did not in terms apply to illegal entrants nor did it impose any obligation to grant leave to remain (or necessarily of leave of any particular duration). It gave rise to no rights or entitlement. Guidance as to whether or not to grant leave in such circumstances to either class of individual, outside the Rules, in the exercise of the defendant's general section 4 discretion, was and continues to be provided by Chapter 53 of the Enforcement Instructions and Guidance as periodically updated. That Chapter 53 guidance made use of the factors set out in 395C, giving more detailed guidance under each listed factor, but equally made clear that the list was not exhaustive and further that the discretionary exercise required a 'holistic' evaluation of a range of cases based on a range of factors, both negative and positive……………………….”

This extract makes it clear that paragraph 395C goes only to the question whether the defendant should stay her hand on removal from the UK in the case of an overstayer. However, there is a general discretion for the defendant to grant leave outside the rules and guidance is provided by Chapter 53 of the Enforcement Instructions and Guidance which made use of the factors set out in 395C, whilst making it clear that the list was not exhaustive and that the discretionary exercise required a holistic evaluation of a range of factors.

It is clear from the correspondence relied upon that the claimant’s case was being dealt with as part of the legacy cases - the request for photos and documentation and other correspondence referred to above makes this clear. However, the legacy programe as stated by King J was an operational programme only (paragraph 40 of the judgement) and the programme did not purport to create any new substantive rights or new basis for the grant of leave. The role of the CRD was to work through the cases, to review them and make a decision whether to remove or grant leave. In my view in this case, on balance the evidence leads to the conclusion that there was no decision between September 2011 and November 2011 whether to remove or grant leave to the claimant. The letter of 9 November 2011 was dealing with an application for support under section 4. In order to deal with such an application the defendant had to consider whether there were any outstanding representations or applications. The defendant addressed her mind to this question and determined the application for support accordingly. The GCID case record sheet supports this interpretation of events.

The letter itself does state “your case has now been fully reviewed by CRD” and this is repeated in the letter to the claimant’s MP. It is therefore unsurprising in my view that the claimant formed the view that a decision had been taken under the legacy programme and sought a review of that decision. However I note that despite the claimant’s requests for further information as part of these judicial review proceedings and in particular the request to disclose any draft decision letter, the pro forma minutes of the decision to refuse leave to remain and contemporaneous notes evidencing consideration of the claimant’s case, no such evidence was provided apart from the printout of the GCID database referred to above and finally in the letter of 1 October 2014 the defendant confirmed that:

“there was no substantive legacy decision by the CRD in 2011, the contemporaneous records do not show a decision on the database, there is no minute of decision on file, no decision letter was written and the case was passed to CAAU as an “undecided” case.”

In the light of this clear statement by the defendant and the printout from the GCID database I find that notwithstanding the language used in the correspondence referred to above, no decision was taken by the defendant in or around November 2011 as to whether to grant leave to the claimant in the exercise of the defendant’s discretion outside the rules. The explanation put forward by the defendant that the case was considered only in the context of determining whether or not the claimant was eligible for support is in my view, credible.

In the absence of a decision the claimant cannot point to a failure on the part of the defendant to apply 395C or a failure to give reasons. Further the claimant has failed to establish any basis on which the absence of a decision can be said to amount to unlawfulness. The claimant’s representatives alleged in correspondence that the claimant had been falsely led to believe that his case had been considered and refused. However there is no evidence to suggest any deliberate attempt to mislead the claimant. With hindsight the language used in the correspondence referred to above could in my view, be open to misinterpretation. But even if this were to be regarded as maladministration, as to which I have some doubt, such maladministration could not in my view, give rise to any illegality. The decision in Geraldo whilst dealing with the question of whether or not there was unlawful delay nevertheless lends assistance to a finding in this case that there was no obligation to make a decision in a particular timeframe. At paragraph 108 of the judgment:

“This is a very different basis of illegality from that based on an alleged Parliamentary commitment. It is in effect a submission that the failure to consider the claimants cases by 19 July 2011 …. meant that the defendant was guilty of “unlawful” delay since … “this was the time by which public law principles, regulating unlawful administrative delay required a decision” and further that this delay has given rise to a historic injustice requiring correction through the intervention of the court. This is in effect a complaint of maladministration on the part of the defendant in not getting round to reviewing these cases earlier than she did, resulting in alleged unfairness in her applying a different policy from that previously applicable .

[109] I find it impossible to accept the submissions………….

[111] However, of more significance in the present context when none of the claimants had any entitlement to the grant of leave within the rules … is the decision of the Court of Appeal in S, H & Q v SSHD .. indicating that mere administrative delay (uncoupled from any promise or commitment to deal with a case by a certain date) does not readily give rise to an illegality relevant to a subsequent decision properly based on current policy, calling for “corrective” intervention by the court, and arguments of “unfairness” based on administrative delay simpliciter do not give rise to any jurisdiction in the court to intervene……

[116] The essential point however, in this context is that whether or not the claimants are able to point to evidence of maladministration, even serious maladministration, in the defendant not dealing with their respective cases sooner than she did … such maladministration simpliciter cannot give rise to an illegality in the decision when it was made, capable of founding the intervention of the court which is asked for in these cases.”

In this case there is no evidence of any representations that a decision would be made by a particular date and there is no complaint of illegality based upon delay. The claimant has not sought to argue that any representation in the correspondence that a decision had been made amounted to a legitimate expectation and I cannot see that there has been any failure or omission to perform a duty. Further applying the judgement of Mitting J in R (Shah) v SSHD [2013] EWHC 2206 at paragraph 36, cited with approval by King J at paragraph 113 of his judgement in Geraldo:

“there is no principle of administrative law that if the Secretary of State had made a decision earlier resulting in a more favourable outcome for an individual, then whatever the changed circumstances may be when the decision was actually made, that more favourable decision must be made.”

In support of her arguments based on historic injustice counsel for the claimant seeks to rely on the judgement of Green J in Kadyamarunga v SSHD [2014] EWHC 301 where at paragraph 23 Green J accepted that:

“ 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…. ”

In that case the narrow issue of fact was whether or not the claimant had received a letter from the defendant promising in unequivocal terms that her application would be decided by or before 20 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 that case on the evidence before him Green J concluded that the defendant did send a letter to the claimant committing to take a decision before 20 July 2011. Whilst this case does appear to express support for the proposition that in certain circumstances it may be unlawful to apply a new policy to old circumstances, in that case the court found that the decision maker had made a clear promise or commitment to do something before a specified date. In that case the defendant did not admit to the existence of such a letter, but the court found on the evidence that such a formal commitment was made. In my view the present case can be distinguished on the facts, namely that I have found that the evidence of the defendant in this case that no decision was made, is credible in the circumstances, and is supported by the GCID database and on this basis have accepted the evidence of the defendant that no decision was in fact made on around November 2011.

The claimant seeks to rely on “the historic injustice caused as a result of the illegality in having communicated a decision when none applied”. However, in my view the claimant has not established any illegality on the part of the defendant insofar as the defendant in the correspondence stated that a decision had been taken. As stated above, it is not arguable on the evidence that the defendant did so in order deliberately to mislead the claimant. Therefore, any misrepresentation of the true position was at worst negligent and amounted to maladministration. I have already set out above, the case law, which makes it clear that maladministration does not give rise to an illegality calling for “corrective” intervention by the court. The claim for judicial review on this ground therefore must fail.

The claimant contends that the decision of 2 February 2013 is flawed through a material error of fact, namely an erroneous understanding and application of the claimant’s compliance with reporting requirements.

The decision of 2 February 2013 was issued following a reconsideration of the claimant’s case after the consent order of December 2012. In that letter the defendant set out paragraph 353B of the immigration rules which states:

“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.”

The letter continues:

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

Character conduct and associations:

Regard has been given to the strength of your connections in the United Kingdom. It is noted that you have no known criminal convictions. However, your lack of a criminal record is not considered a significant reason to allow you to remain. Therefore, for the reasons given, it is not considered that your character, conduct and associations are a significantly compelling reason for you to remain in the United Kingdom.

Compliance:

It is noted that you claimed asylum on 14/9/1998, this was refused on 13/11/2001, and your appeal rights became exhausted on 10/12/2002. This meant that you were then expected to make arrangements to leave the UK but you failed to do so. You have never been given valid leave to remain in the United Kingdom. You became ARE on 10/12/2002. You have not adhered to reporting restrictions. You were served with NIS 96 on 3/1/2001 with instructions on when and where to report to, however, you failed to comply with these instructions. Reporting is a mandatory requirement of temporary admission to enable the United Kingdom authorities maintain immigration control. After your appeal rights became exhausted, you failed to maintain contact with the UKBA and you absconded. You only came to light again in 2010, when your legal representatives made contact on your behalf. Therefore your compliance is not considered a significantly compelling reason for you to remain in the United Kingdom.

Length of residence spent for reasons outside the control of the migrant:

Regard has been given to your length of residence in the United Kingdom. It is noted that you have resided here for a period of 14 years, however, approximately 8 years of this was while you had no right to be in the country after your appeal rights became exhausted in December 2003 and you should have left the UK. You did not. Instead you chose to abscond and wait until 2010 to make contact with UKBA via your legal representatives. Your length of residence has been acknowledged, but it is considered that this is outweighed by the illegal residence you have accrued following his failure to leave the UK as instructed.

Your length of residence is not a sufficiently compelling reason to justify allowing him to remain in the United Kingdom.

Your case has now been fully reviewed by CAAU and the outcome is that you have no basis of stay in the United Kingdom. You should make arrangements to leave the United Kingdom without delay.”

The claimant submits that this decision is premised on fundamental errors of fact as to the extent to which the claimant was compliant and reported, and to the extent of his reporting compliance within the context of his overall residence. In particular, the claimant relies on the fact that the claimant was only classified as an absconder on 28 February 2008 and for a period of less than 2 months; there is no reference in the letter to the fact that the claimant reported from 1998 until 2005 and no reference to him having reported from April 2008. Further, in the context of his overall length of residence he was compliant for 11 of the 14 years. The claimant points to the witness statements as evidence of the claimant’s compliance and submits that the evidence in these witness statements was material to the defendant’s decision and was not considered. Accordingly, the claimant submits that the decision letter is flawed on the basis that the defendant cannot say that the decision would inevitably have been the same.

The defendant submits that for the court to intervene in respect of an error of fact, it had to have played a material part in the decision. She relies on the statement of the law in the Court of Appeal decision in E & R [2004] EWCA Civ 49:

“In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of CICB. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been “established”, in the sense that it was uncontentious and objectively verifiable. Thirdly, the Appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning.”

Counsel for the defendant submitted that 353B is narrow in scope and that the policy behind Chapter 53 is to remove illegal entrants and in applying the discretion under 353B, the defendant is looking for something exceptional which would justify exercising the discretion to grant leave. Counsel for the defendant relied on the dicta of Underhill LJ in the recent Court of Appeal decision in Qongwane [2014] EWCA Civ 957 at paragraph 40 where he stated:

“I only wish to add one point about para 353B. Ms Anderson submitted that the factors listed at (i)-(iii) were (unlike the much more extensive list in the old para 395C) all “negative” in character and thus that their intention is to constrain (or at least guide) the exercise of what would otherwise be a general discretion not to remove migrants who had no right to remain under the Rules or the general law. On a literal reading that submission seems wrong: taking the example of head (i), migrants can have good character as well as bad, and a very long period of time spent in the UK for reasons beyond the migrant's control (head (iii)) would surely in principle count in favour of non-removal. But I think that that is too literal. Paragraph 353B is not very well drafted, but it seems to me clear, reading it as a whole, that its essential purpose is indeed to identify specific points which will weigh in the balance against the exercise of the discretion not to remove a migrant, or to qualify the effect of factors that might otherwise weigh in its favour. Thus the point of heads (i) and (ii) is to make clear that (in short) bad character/conduct and non-compliance with conditions must always count against the exercise of the discretion. As for head (iii), the point surely being made is that time spent in the UK after the adverse immigration decision ought (at least generally) only to count in the migrant's favour if his or her reasons for not leaving were beyond their control. I think this point worth making because I have observed a tendency for migrants or their advisers to treat the facts that they have committed no criminal offences or have complied with all conditions as if that created some kind of presumption in favour of non-removal “under para 353B”. That is not the right approach. Paragraph 353B is not a kind of mandatory check-list of the same character as (albeit less comprehensive than) the old para 395C. I do not say that good character or compliance with conditions are wholly irrelevant to an exercise of the discretion in question. But it is not the purpose of para 353B to ensure that they are considered; and they are hardly likely to be significant factors by themselves given the exceptional nature of the discretion as explained by Sir Stanley Burnton at para 24 of his judgment. Migrants or advisers making representations against removal in a case of this kind will need themselves to identify with specificity the exceptional circumstances on which they rely.” [Emphasis added]”

At paragraph 24 of his judgement Sir Stanley Burnton said:

“..secondly, on any basis the scope of the exercise by the Secretary of State of the discretion envisaged (to use, for the present, a neutral expression) by paragraph 353B is narrow….. Paragraph 353B can be of relevance only to those who have no right to remain in this country, and whose claims have been finally determined (because their appeal rights are exhausted and there are no unanswered submissions). The discretion is a safety valve, pursuant to which the Secretary of State may refrain from removing but only in such circumstances, which will necessarily be rare.”

Counsel for the defendant therefore submitted that in this case there is nothing exceptional; the claimant is an illegal entrant, he has a failed asylum claim and admits to non-compliance. He therefore falls within the areas where the defendant should not be granting leave.

The defendant’s description of the extent of compliance by the claimant is clearly inaccurate. The letter states that the claimant failed to maintain contact and absconded from the point at which he became appeal rights exhausted in 2002 (2003, according to the letter) until 2010 a period of some 8 (7) years. In fact, the claimant was reporting for 5 of those years. At first sight therefore, it would suggest that this error could have affected the decision of the Secretary of State and the fact of absconding is also referred to in considering the length of residence. However, following the decision of the Court of Appeal in Qongwane it is clear that the discretion under 353B is intended to be exercised only in exceptional circumstances. Further, following the approach of Underhill LJ, even if the claimant had been compliant throughout the period this does not entitle him to remain and accordingly even if the letter had correctly reflected the longer periods when the claimant was reporting, in my view it cannot be said that the mistakes as to the extent of reporting and absconding had any material impact on the outcome of the decision of the defendant not to exercise her discretion and grant leave under Chapter 53 EIG. Accordingly the claimant has failed to bring himself within the test in E & R set out above and the claim on this ground fails.

The third ground of challenge is that the letter of 2 February 2013 failed to consider whether the further submissions and evidence amounted to a fresh claim in respect of the claimant’s article 8 rights and in accordance with paragraph 353 of the immigration rules. Counsel for the claimant submitted that the claimant’s previous appeal was some 10 years prior to the decision letter and that there is a realistic prospect that before a different immigration judge an appeal would now be allowed: she relied on the claimant’s long residence, his established private life, the minimal prospect of removal in the absence of documentation, his lack of ties to Algeria, as well as the failure to communicate a lawful decision on his case as a legacy case and the failure to correct that historic injustice. In response to the defendant’s assertion that she has no record of submissions having been made, the claimant states that submissions were made on 20 September 2010 in the letter from his representatives and further evidence was submitted in his witness statement of 17 October 2012. The claimant therefore submits that the decision letter fails to consider the submissions as whether they amount to a fresh claim in this case raising any article 8 issues. The claimant submits this is contrary to the rules and the letter should be quashed on that basis.

Paragraph 353 of the immigration rules states:

“When a human rights or asylum claim has been refused or withdrawn under paragraph 333C and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i)

had not already been considered; and

(ii)

taken together with the previously considered material created a realistic prospect of success, notwithstanding its rejection.”

In the course of oral submissions counsel for the defendant submitted that further submissions needed to be submitted in person at Liverpool pursuant to the relevant policy and subsequent to the hearing submitted a copy of the policy. Subsequent to the hearing the claimant’s representatives made written submissions to the effect that the defendant must consider any submissions and referred to the decision of the Court of Appeal in UZ Pakistan as “illustrating the point”. They also referred to the “specific facts of this case” and submit that it is clear that the defendant has agreed to consider the submissions without requiring submissions to be made in person at Liverpool.

The phrase “further submissions” is not defined in the immigration rules, but it seems to me must be of a character and quality to amount to “further submissions” if they are to engage the requirement to consider them under 353. I doubt that the statements in the letter of 20 September 2010 are of the character to engage a requirement to be considered as further submissions. The letter stated in the material paragraphs:

“Kindly take into consideration our client’s compassionate circumstances, the length of time our client has spent in the UK, his good character and no criminal record, and his strong connections within the United Kingdom.

We remind you that our client came to the United Kingdom in 1998 and claimed asylum at the same time. We understand from our client that his application was subsequently refused.

We implore the Secretary of State to consider our client’s application purely on its merits and therefore uphold our clients Human Rights under articles 8 and 14.”

In my view these are brief statements providing no detail of any “compassionate circumstances” or “strong connections” which would provide a basis for engaging a consideration under 353.

Even if I am wrong and the statements in the letter are of sufficient character and quality to count as “further submissions”, this letter was part of the correspondence relating to the claimant’s case being handled by the Case Resolution Directorate, as is evident from the fact that this letter states that the representatives have sent their client’s photographs. It is clear therefore that this letter follows on from the letter from the defendant of 18 June 2010, which requested photographs and certain documents and which stated in bold type:

“you should note that if you send us information other than that requested above, this will be treated as information only and will not be accepted as “further submissions” to your asylum/human rights claim. Further submissions to your asylum/human rights claim must be submitted in person at our Liverpool office. Guidance on what UKBA would like to see from any further submissions and details of how to submit them can be found on the UKBA website…”

I derive no assistance from the Court of Appeal decision in UZ Pakistan where the manner of submission was not in issue. There would appear to be exceptions in the policy for exceptional circumstances where further submissions may be accepted by post and I therefore doubt there is any merit in the submission made subsequent to the hearing that the policy (that further submissions are generally made in person) is contrary to the immigration rules. In any event in my view, given the specific context in which the letter of 20 September was sent and the express statement referred to above in the letter of 18 June, it seems to me that those statements did not create any obligation on the Secretary of State to treat those statements as further submissions which fell to be considered under 353.

In relation to the witness statement of 17 October 2012, this witness statement was made in support of the claimant’s application for judicial review of the defendant’s decision to refuse to grant him any form of leave following the (presumed) review of his case under the legacy programme. On 5 December 2012, the parties entered into a consent order to stay the judicial review proceedings on the basis that the defendant agreed to reconsider the claimant’s case. The consent order recites:

“Upon the claimant serving the defendant with further evidence, including a witness statement dated 17 October 2012 on 5 December 2012.

And upon the defendant agreeing to consider that further evidence and to reconsider his case as a whole, within 3 months from the date of the signing of this order (absent exceptional circumstances).”

That reconsideration took place and the decision letter of 2 February 2013 was issued. That letter makes no express reference to having considered the witness statement.

Again, the defendant relies on the fact that further submissions have to be made in person at Liverpool. However, there is an exception stated in the policy where there is an ongoing judicial review and in this case, although the proceedings had been stayed at this point the terms of the consent order make it clear that the defendant will consider the further evidence and there can be no inference in my view that the claimant was required to attend in person at Liverpool.

The claimant submits that the decision of 2 February 2013 was flawed in that it did not determine whether the submissions amounted to a fresh claim. Counsel for the defendant submitted that if there were a fresh claim there would be no 353B consideration. She submitted that the issue of whether there is a fresh claim would be a separate decision and the court cannot quash the decision because there is nothing about a fresh claim. She submits that the submissions in the witness statement relate to the claimant’s homelessness and are not in the nature of fresh claim submissions. She submits that it is not sufficient just to assert a private life on the basis of being in the UK and that merely having friends does not amount to a private life for the purposes of Article 8.

Counsel for the claimant submits that the defendant has not engaged with 353 and the letter should have addressed this. She submits that it cannot be said that there is no realistic prospect that an immigration judge would find it was not disproportionate and the failure to deal with it means that it is unlawful. The objections to the nature of the submissions cannot, according to counsel for the claimant absolve the defendant from considering them as a fresh claim.

In my view the nature of the submissions and the circumstances in which they were made are relevant. 353 deals with further submissions in relation to an earlier human rights or asylum claim. The judicial review proceedings were brought to challenge the decision to refuse the claimant leave under the legacy programme. It can therefore be inferred that when the proceedings were stayed and the defendant agreed to consider further evidence the purpose of the reconsideration was to consider whether to grant the claimant leave outside the rules. The further evidence therefore was not further submissions in support of the earlier asylum or human rights claim, but submissions to support a grant of leave within the framework of the legacy programme (accepting that it is now been established that there was no separate set of rules for dealing with legacy cases, but that is not relevant to the point at issue here.). Accordingly in my view the nature of the submissions are relevant and the context of the submissions are relevant. The claimant is right to focus on the facts and the circumstances surrounding the submissions in December 2012. The defendant did agree to consider the submissions but this was not on the basis that the claimant was making further submissions in support of an earlier human rights or asylum claim, but was making submissions in support of his claim to be granted leave outside the rules under the legacy programme.

Looking in detail at the witness statement the claimant says in paragraph 1:

“I make this statement in support of my application for judicial review of the defendant’s decision to refuse to grant me any form of leave following the review of my case under the legacy programme.”

This opening paragraph to my mind is significant in that it places the overall statement in context and clearly states the purpose for which it is being made.

He then goes on to describe arriving in the UK, claiming asylum and then details the various places in which he has lived. He describes how he was made homeless but managed to obtain periods of accommodation with friends. Having become homeless again in September 2011 he states that in order to obtain NASS support he had to sign a disclaimer stating that he would take assisted voluntary return to Algeria. He then states at paragraph 11:

“To be absolutely clear, I do not wish to return to Algeria. Although my asylum claim was disbelieved I still fear the consequences of my desertion from national service if I return to Algeria. Furthermore, I no longer have any established ties with Algeria. I have established my life in the UK over the last 14 years and consider Stoke-on-Trent to be my home. I only wish to have my stay regulated so that I can once again contribute to society and no longer be forced to live on the street.”

The final 3 paragraphs are under the heading “The legacy program” In the final paragraph, having referred to the fact that he was informed he was not entitled to NASS support because his application to remain in the UK had been refused, he states:

“it became clear that this was not however a mistake when I received through my MP a letter dated 2 May 2012, in which it was reiterated that a decision had been made not to grant me any form of leave to remain in the UK. I am anglicised and if I were removed from the UK, I would have to start my life all over again in an unfamiliar country and at my age I do not know whether I would now be able to do so. This has left me broken. Many of my friends in Stoke are other failed asylum seekers and I am the only one I know who does not now have leave to remain in the UK – including those with criminal convictions. I am destitute. 14 years of my life have gone and my health has deteriorated as a result of my recent periods of destitution. I have lost many of my teeth and lots of weight. I feel ill and desperate and I do not know where to turn or why I, amongst all of the others I know, had been refused leave to start a normal life in the UK.”

Although there are references in this witness statement to the claimant’s private life, in particular his network of friends and acquaintances, and the fact that he considers Stoke-on-Trent to be his home, it seems to me that looked at as a whole this is clearly a witness statement to support the reconsideration of his case to be granted leave outside the rules under the legacy programme. They are not submissions with a view to establishing a claim under Article 8. The claimant is comparing his case with others in the same position in support of his argument (now rejected by the case law) that he should be granted leave to remain because others in the same position have been granted leave under the Legacy Programme.

Given the character of the submissions and the context there was no reason why the defendant should have interpreted these as further submissions requiring consideration as a fresh claim. As stated above, it seems to me that the phrase “further submissions” has to be read in the context of the rule and not in isolation. In my view it is not correct to interpret the phrase as “any submissions which may be made in any manner whilst a claimant remains in the UK”. “Further submissions” are submissions further to a previous asylum or human rights claim and have to be capable of being identified as such. Normally, in accordance with the policy this would be by making submissions in person. There may be other circumstances where further submissions are not required to be made in person, such as for example, where there are pending judicial review proceedings, but in my view, the mere fact that this reconsideration took place as a result of a stay in judicial review proceedings does not mean that these submissions fall to be counted as “further submissions” which the defendant was required to consider as a fresh claim under 353. The submissions have to be “further to” a human rights (or asylum) claim and in my view this means the submissions must relate to a human rights claim. For the reasons set out above the character and context of these submissions in the witness statement did not amount to “further submissions” within 353.

For the reasons stated above having considered all the evidence before me this claim for judicial review fails.

The parties have agreed that there should be no order for costs and I am content to make an order to that effect. Whilst noting that the claimant is the unsuccessful party I had indicated to the parties that in exercising the discretion of the court I would have regard in accordance with the CPR to the conduct of the defendant and the fact that she had failed until the letter of 1 October 2014 to give a clear indication that no decision had in fact been made in this case in 2011. As indicated I have no evidence to suggest that the claimant was deliberately misled and I would not accept that this case would not have been pursued in any event pending decisions in the legacy cases such as Geraldo but the order for costs does take account of this conduct.

I have received written submissions from Counsel to the claimant seeking permission to appeal. I refuse permission to appeal on the basis that I do not consider there is a real prospect of success: