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

MR JUSTICE BLAKE: This is an application for judicial review of decisions that were finally made in May 2012, granting the claimant and his dependants, his wife and three children, discretionary leave to remain for three years.

The first claimant is a citizen of Ecuador, as indeed are all the members of his family. He entered the United Kingdom at some point in 2000 on a forged Spanish passport. In about November 2000, he was encountered by the immigration service, served with a notice of liability to removal as an illegal entrant, and then claimed asylum. Whilst this asylum claim was under consideration, the second claimant arrived in the United Kingdom. She is the wife of the first claimant. She also claimed asylum. The first claimant's asylum claim was refused in January 2003, and an appeal dismissed in May 2003. The second claimant's asylum application was refused and the appeal dismissed all in the course of 2004.

The third claimant is the elder daughter of the first two claimants. She was born on 31 August 2004. She is now ten years old. The fourth claimant is the younger daughter of the first two claimants, and she was born on 29 January 2006, so she is now nine. Like her sister, she has spent all her life in the United Kingdom. For completeness, a further child has been born to the couple.

The first claimant, after the refusal of the asylum claim, applied to be included in an application being made by his brother, who was in the United Kingdom, as a family member. The brother was given leave to remain indefinitely in July 2005. However, the first claimant was considered not to qualify for consideration as a dependant of his brother as the Secretary of State was not satisfied that the first claimant was living in the same household. His independent application for ILR under the then family policy was refused in March 2006 and a judicial review of that refusal was dismissed shortly thereafter.

Taking the position as of April 2006, at that stage the first two claimants were failed asylum seekers who had exhausted their appeal rights, were liable for removal to Ecuador as illegal entrants with no leave to remain, and their two daughters were not British citizens and accordingly were susceptible to removal with their parents. The Home Office records also suggest that during this period, in about September 2005, the first claimant had failed to report regularly as he was required to do so and was treated as an absconder.

No further action or events occurred in the immigration history until January 2009. On that date, the former solicitors acting for the claimants contacted the Home Office and revealed the existence of the children. This then resulted in an exchange of correspondence from that date, until September 2011, when a letter before action was issued, requiring the Home Office to make a decision on the family's position promptly, the response to which was that a decision would be made within six months. Then in April 2012 it was indicated that a decision would be made to grant limited leave to remain, which was granted the next month in May 2012.

The first claimant was asked to attend the Home Office on 28 October 2010 to produce his original versions of various documents required for processing of the case. The claimants point out that those documents had been provided by the former representatives on 29 July 2009, and although there had been potential confusion about two Home Office reference numbers, given the two separate bases of claim, by early 2010 it was pointed out that there were these two reference numbers by the former solicitors. On 2 July 2010, in response to a further request for photographs and birth certificates, they were provided.

Following the attendance on 2 October 2010, a letter in apparently identical terms was sent on 24 January 2011, asking the first claimant to attend again on 22 February, again to supply the original documents; confirmation of full name; original identity documents; immigration status documents; marriage certificates; documentary evidence of cohabitation; birth certificates of defendants; and four recent photographs; all of which had clearly been supplied on previous occasions. At that stage his current solicitors were acting for him, and queried why all this information was being sought again, again pointing out the two file numbers that might once have been a source of confusion.

There is no evidence of any engagement with the correspondence, and there were letters chasing the defendant as to what was happening on 12 May and 12 July 2011. Then, on 6 September 2011, there is the letter before action saying the decision under challenge was, "The ongoing failure to determine our clients' immigration status under legacy provisions," setting out the summary history of the matter, pointing out that the two daughters were attending primary school in London, pointing out that:

The Home Office responded on 27 September with the information that they aimed to complete the review within six months, but that letter appears not to have been actually sent until 7 November 2011. Judicial review proceedings were then commenced in December 2011, and the original claim required a decision to be made, but early in 2012 it was also stated that what should now be granted was indefinite leave to remain rather than a discretionary leave to remain for three years.

Grounds of judicial review were amended in the course of 2012, and permission to move the judicial review was granted by Philip Mott QC sitting as a Deputy High Court Judge on 5 December 2012. It is clear that permission was limited to the matters set out in two paragraphs of what was the claimant's then skeleton argument: one, has not acted fairly in respect of a public law duty and not provided reasons as to why some legacy cases were processed prior to a policy change on 22 July 2011; two, legitimate expectation that once the defendant decided to consider his case under the provisions of the legacy policy, and given that submissions were made in support of such a matter in October 2010, that he would be granted indefinite leave to remain under the previous policy rather than the discretionary leave to remain under the new policy.

Certainly it is the case that in July 2011, it seems as a result of some criticism of Home Office policy in these cases, the practice changed. Thereafter, it was considered that for any person who it was decided should not be removed and should be granted leave to remain, the normal period of leave to remain would be three years' discretionary leave to remain rather than indefinite leave to remain, as appeared to have been given in the vast preponderance of cases decided previously under the legacy policy in force from 2006. One factor apparently leading to that change of policy was that asylum seekers successful in their claim were given at that stage five years' leave to remain, and those who succeeded in the human rights claim, including an Article 8 family life claim, were also given three years rather than indefinite leave.

This hearing was further adjourned for various reasons in the earlier part of this year, and further information was provided by the Secretary of State as to the basis for a change of policy that was noted in a decision of the Court of Appeal called Clue v Birmingham City Council [2010] EWCA Civ 460, the decision handed down on 29 April 2010. It seems that there were then amendments to the skeleton argument of the claimant, but it was not until very recently that a formal application to amend the grounds of judicial review were made.

The claimant in the skeleton argument lodged for this hearing sought to develop three broad grounds: one, undue delay and failure by the defendant to prioritise the cases of unsupported families constitutes serious maladministration amounting to substantive unfairness; two, unlawful fettering of discretion whether to grant ILR to families with children; three, legitimate expectation that the claimants would be granted ILR.

In the event, objection was taken to this late change of grounds, particularly as directed to ground one, unsupported families. This related to the information that had been supplied arising out of the case of Clue, to which reference had been made. Very broadly speaking, when the legacy programme had been spelt out in 2006, there were four classes of case in which it was indicated priority would be given. One of those concerned cases where there were security or safety issues for making a speedy decision; a second class was where it was obvious that removal could be effected quickly; a third class was where the claimant, or dependants of the claimant, was being supported financially by the Home Office, usually under the NASS scheme, and delays in decision making would therefore add to the financial outlay; a fourth class was where it was fully appreciated that leave to remain would be granted readily.

The reference to "unsupported claimant" in the original policy was therefore claimants whom the Home Office did not support, but the case of Clue revealed that there was a further category of claimant where decision was pending, who was being supported by the Local Authority. The Court of Appeal was clearly concerned about the impact on Local Authority budgets of this class, and something was said to the court in Clue to indicate that it was hoped that consideration of the burden upon local authorities for claimants whom they supported, but not the Home Office, could also be taken into account, where the Home Office was notified of this fact by the Local Authority. So a form of priority was recognised, although it was not precisely specified.

However, what this amended ground appeared to be arguing was that it was irrational to give priority to claimants who were supported by any public authority, but not give priority to claimants who were supporting themselves, or supported by their families, and since that was the position, the priorities scheme was irrational.

When this application was developed this morning, I pointed out that not only was it late, not only was it likely to require further evidence to be submitted directed to it, but it was also a somewhat difficult proposition to make good as prima facie a policy of giving priority to cases where the state was expending its resources appeared to be rational. In the circumstances, that amendment was not advanced and I need say nothing more about it.

This case has essentially proceeded upon two grounds. The first is that as a result of administrative delays in the specific case, the claimants were prejudiced in that they did not obtain a grant of leave to remain before the change of policy in July 2011, and if a decision in their cases had been made before that date, the overwhelming likelihood is that they would have been given indefinite leave to remain rather than discretionary leave to remain.

The second ground is that in any event, in May 2012, the Secretary of State should have granted them indefinite leave to remain rather than discretionary leave to remain, partly because of the specific delays in their family's case; secondly, because the case did include children who had been residing here for some time; thirdly, because the general duty promoting the welfare of children under section 55 of the Borders, Citizenship and Immigration Act 2009 required something more than discretionary leave to remain. Associated with those first two is the submission that essentially because it was known that there were children, that required a form of priority which had not been given and should have been given, and that should have been made good in the grant of the form of leave when the decision was finally made.

Finally, the point was made that the decision to grant DLR, discretionary leave to remain, rather than ILR, indefinite leave to remain, was a fettering of a discretion, because it was an application of a policy that had been held to be unduly narrow and gave insufficient flexibility when dealing with the welfare of children, in a decision of Holman J called The Queen on the application of SM and Othersv Secretary of State for the Home Department [2013] EWHC 1144 (Admin), decision given on 8 May 2013.

The context of these challenges is a series of decisions given by this court since 2012 relating to a number of claims for judicial review of decisions made under the revised criteria adopted after July 2011. Those cases include one, the decision in Hakemi [2012] EWHC 1967 (Admin); two, Geraldo [2013] EWHC 2763; three, Hamzeh [2013] EWHC 4113 (Admin); four, Mohammed [2014] EWHC 98 (Admin). There of course are many other decisions on this question as well. From those decisions, and a much earlier decision of Collins J in the case of FH and Others [2007] EWHC 1571 (Admin), the following general principles can be abstracted.

One, the legacy programme was a way of dealing with a backlog of failed asylum claims. It was not an amnesty for historic claims for asylum. It did not create a new substantive policy as to when indefinite leave to remain was to be given.

Two, the basic rule in all immigration decision making is that such decisions are decided on the basis of the rules and policy in force at the time of the decision, rather than at the time of the application. If the policy at the time of the decision makes no provision for transitional cases, the fact that a more generous policy existed at the time when the claimant's position was first considered by the Home Office will not normally be relevant, and did not give rise to a legitimate expectation that the old policy would be applied.

Three, there is a general legal duty to decide cases within a reasonable period of time, but what is reasonable depends upon all the circumstances. In the case of FH, it was recognised that the huge scale of the backlog that had accrued by 2006, and the limited resources available to process old cases, as opposed to spending public money on prompt consideration of new ones, meant that delays would necessarily be extensive, but given that arrangements were now being put in hand to deal with delays over a period expected to be five years, then delays of in the order of three years would not in themselves be unlawful, although consideration always needed to be given to exceptional cases requiring more urgent consideration, and claimants should not be subject to specific prejudice as a result of inordinate delay.

Four, it was concluded that notwithstanding the reference to five years as the period within which decisions would be taken, in Parliament and elsewhere no form of promise or specific undertaking had ever been given that all cases that came within the backlog or legacy programme would be decided by July 2011, although that had been the aspiration, and remained the aspiration.

Five, a policy deciding on what priority to be given to the handling of backlog cases was itself a policy that it is for the defendant to adopt rather than for the courts to impose. Of course, the existence of any such policy could be subject to scrutiny for public law rationality, but in an area where there were few statutory pointers, this was clearly a field for a wide discretionary area of judgment. It is to be noted that the Secretary of State, in addition to the four heads of priority identified at the outset of the programme, also has published from time to time policy as to what in her judgment constituted an exceptional circumstance which would put a claimant into a priority category.

Six, the length of leave to be granted when someone is not to be removed but given leave to remain is again for the discretion of the defendant, rather than a matter for courts or tribunals. Clearly, again, discretion would need to be exercised lawfully and not capriciously, but it would generally be lawful if the exercise of discretion complied with current general practice or statutory framework, or indeed particular promises made or given, or that any departure from the norm had sufficient justification.

Seven, although the vast majority of those who were granted leave under the backlog programme before July 2011 were granted ILR, it was not the case that it was an invariable practice to do so, and a number of cases where discretionary leave to remain was granted for three years were apparent. There was therefore no legitimate expectation that any claim considered under the backlog programme would inevitably be given ILR.

The application of these principles would suggest that those who received three years' discretionary leave to remain in the spring of 2012, after the change in practice, would have had no legitimate expectation or other reason to believe that they would be given indefinite leave to remain, in the absence of a specific promise.

I accordingly conclude that the reference to legitimate expectation in the grounds of claim which are pursued in this case of itself is bound to fail, since it is in my judgment clear that no promise was made to the claimant as to when the case would be decided, that the published policies at the time that decisions were taken did not assign this family to any priority, and the more general statements that exist with respect to the need for prompt decision making with respect to children do not, absent either special circumstances or a particular application being made or a particular promise being given, generate into a principle that the claimants could expect a decision by a certain date or expect a certain outcome.

In the present case, the claimants nevertheless submit that a detailed analysis of the particular chronology in their case reveals unreasonable and unexplained delay in processing the case that caused the decision not to be reached until after July 2011. There is at least the occasion in February 2011 when it seems that the claimant was asked to attend in exactly the same terms as he had been asked to attend in October 2011. More generally, it could be said that if the only purpose of the October 2011 personal attendance was to supply documents which had been previously supplied, that itself was a futile exercise, but looking at the matter broadly, I conclude that up until October 2011, although the matter had not been proceeding without complication, and not at a particular fast pace, the matter was proceeding in the form of steps that it might be reasonable to comply to.

I have explored with Miss Lean, who appears for the Secretary of State, why it was that the second letter was issued. She was in some difficulties as there is no witness statement from the individual decision maker in the case, and the only relevant evidence we have about the general processes is from the head of the department, Mr Forshaw.

Having taken instructions, she did raise one or two matters: first, that security checks need to be made with the police and others; they take some time and they may expire after a certain period, possibly three months.

Secondly, perhaps more contentiously, she suggested that photographs may need to be updated, though upon consideration she did not develop that contention in any greater detail. It would in this case have given rise to more questions than answers, as photographs were not sought to be updated throughout the procedure, and if of course there was any policy suggesting that photographs only had a currency for three or six months, that would be some evidence from which it would be reasonable to infer that rational decision making required a decision to be made upon the data collected within that time. I cannot conclude from the state of the evidence before me that that is the case.

It is sufficiently clear that although there may have been some inexplicable duplication of the process between October 2010 and February 2011, whenever the process of information gathering could have come to an end it would also have needed then to be assigned to a case worker for a decision to be made. It is part of the general problem of the scale of the backlog, the clearance and the resources available, that that itself may take some time, and the priorities have been identified, as already indicated. There is no information before this court from which it could be inferred that there was a target date for the decision making process part of the process overall, or that there was a certain date from which it could be inferred that a period of decision making which exceeded a given period would be unreasonable.

In the event, as we have seen, the decision was taken some 14 months after the second interview. Even if one subtracts the four months from that, that would have still meant the decision would not have been taken until December 2011, which from the claimant's point of view is long after the critical change in policy which has lost them the opportunity of obtaining ILR as opposed to DLR, as appeared to have been the predominant practice.

In my judgment, therefore, the claimants cannot demonstrate a clausal connection between any serious administrative failing (even assuming that is the explanation for the repeat activity over the four months) and a deferred decision date. Whether as a matter of principle a loss of documents, a repeat stage of the process which causes extra months, which may in a particular case be shown to be determinative of the reason why a decision was made after rather than before July 2011, could amount to a sufficient maladministration to give rise to unfairness that could be enforceable by this court, does not have to be examined.

There are general statements in the case of Geraldo, reference already given, and the case of Shah [2013] EWHC 2206 (Admin), suggesting that there is no right to have a case decided under earlier policy known to law. I accept that, but in my judgment there may well be a case where the incompetence of the responsible department reaches such a degree, and causes such a delay, albeit within the context of general delays caused by a lack of resources to process cases efficiently, where at least it is possible that a claimant may be able to establish a cause and effect. But for the reasons I have given, that is not this case.

I then return to the grounds which have been argued today, which all essentially relate to the special position of this claimant because there are children involved in the case.

Essentially three lines of argument have been developed: one, in dealing with section 55 of the 2009 Act, it requires regard to be had to the welfare of children, and through that route implements the general principles discussed in the well known case of ZH (Tanzania).

Secondly, in November 2009, a policy document, Putting Children First," amongst its many provisions, indicates that part of addressing the needs of children is to make timely decisions on their cases.

Third, it is submitted that what Mr Forshaw has said in his witness statements indicates that there was a basis on which this case should be treated as a priority case. Mr Forshaw said of the head of priority criteria originally adopted in July 2006, "persons who may more easily be granted leave," are likely to be cases where there are dependant children, because dependant children who have lived long in the United Kingdom are more likely to give rise to cases where a decision can be made in respect of the family as a whole. Equally, however, it is more likely that children would be included in the class of cases that were supported by public funds, whether by the Secretary of State or Local Authority.

However, Mr Forshaw's statement ends as follows:

Equally, following the decision of this court in SM and Others, a decision of Holman J, the policy bulletins were revised to show that there was a discretion available to grant indefinite leave to remain in children's cases rather than just discretionary leave to remain, and thereby addressed the criticisms of the form of the policy that had been identified in that challenge. Holman J, with his understandable extent of experience of both family law and public law, makes the general points that all delay in dealing with the future welfare of children can be prejudicial, and that certainty as to their future is an important factor in any decision that involves planning of their future.

However, in my judgment it is clear that at the time these cases began, the length of residence of the children was not such as to have self-evidently put them into the category indicating that leave to remain was likely to be given. Of course, the longer that the case goes on, the stronger the claim based upon residence of children, particularly where that residence is over six or seven years and involves them engaging to some significant extent in the educational system of this country. Even in July 2011, it would not appear to me that the facts were so strong as on any swift review to indicate to a decision maker that this was a priority case, nor is it entirely clear what that would have meant in terms of post investigation decision making time in terms of months as opposed to years.

Further, there was never any suggestion in the exchange of correspondence between 2009 and 2012 that the existence of these children put these claimants into a priority category, as would have been expected if that had indeed been the contention of the claimants, the policy criteria being a matter of public record.

Further, and in my judgment significantly, the children have been living in the home of their uncle and aunt, and have been going to school. Nothing in any of the representations made to the Secretary of State suggested that their health or welfare is being jeopardised by lack of an immigration status at all, let alone lack of indefinite leave to remain as opposed to three years' leave to remain. They have continued with their lives without any difficulty that has been notified to the Secretary of State caused by the delay.

I entirely accept that delay of any sort when dealing with children is undesirable and should be avoided, but that general proposition articulated both in the guidance and the authorities does not turn this into a case where a specific priority or a specific requirement to give a decision by a specific date can be identified, certainly where all that is known to the Secretary of State is that there are two children of the ages of the third and fourth claimant, and nothing else suggesting that they are unable to access health or education by reason of their uncertain immigration status. I note that neither the letter of February 2011, querying why further attendance at the Home Office was required, nor the letter before action, suggested that specific prejudice was being caused to the children.

In my judgment, the reference to section 55 of the 2009 statute gets the claimants no further in this case, as prejudice to welfare would be a case specific issue rather than simply arising out of the fact that there are children at all. Nothing in the other authorities suggests otherwise, although none are full square on the same facts as the present.

Finally, for the same reason, I cannot accept the contention that the Secretary of State has unlawfully fettered her discretion. The decision made in 2012 was made on the basis of information then known, and the arguments and contentions put forward. It may well be the case that a narrow application of the policy which was considered subsequently might have excluded cases where the welfare of the child required a broader, open textured approach to consider what kind of leave should be given to the child, but for reasons I have already identified, there was nothing in this case to suggest that these particular children required at this stage in their history indefinite leave, and a long term future, as opposed to a period of limited leave before further consideration should be given to their cases. This, after all, was the first time in which any member of the family had been given any leave to remain at all, albeit after lengthy periods of residence -- which was generally unlawful -- in this country beforehand.

That said, I observe that under the present scheme, the claimants' leave to remain is to be reviewed by May 2015. At that stage, it will clearly be open to the claimants to point out any need that the children have of a more long term decision on their future in the light of their educational or other developments then in existence. At that stage, an application that is supported by particular factors to be taken into account would well need to be considered in the light of the current guidance, following the decision of Holman J. But that is to look forward rather than to look back at the existing case.

I cannot, however, help but observe that in respect at least of the third claimant, she is already now someone who has resided for more than ten years in the United Kingdom, and section one of the British nationality Act 1981 would give her an indefeasible entitlement to registration as a British citizen by reason of that residence alone.

Nevertheless, for the reasons I have endeavoured to give in this judgment, all the three grounds of judicial review, insofar as they have remained after variation and amendment, are not accepted and this application is accordingly dismissed.

MISS BRAGANZA: My Lord, I'm grateful, could I just make one correction.

MR JUSTICE BLAKE: Yes, please, there's probably quite a lot.

MISS BRAGANZA: My Lord, when you referred to letters, the October, that should be October 2010 rather than -- you then later on referred to it as being 2010, but before there are two references that refer to it as 2011, so there's two references.

MR JUSTICE BLAKE: I will retain the chronology and I'll check that.

MISS BRAGANZA: It's just that.

MR JUSTICE BLAKE: Thank you.

MISS BRAGANZA: Thank you, my Lord.

MISS LEAN: My Lord, I do have an application for the Secretary of State's costs. I don't have a schedule, but I think the claimant is publicly funded.

MISS BRAGANZA: Yes, publicly funded.

MR JUSTICE BLAKE: So the order is the Secretary of State can obtain her costs to be taxed if not agreed but subject to...

MISS LEAN: Yes.

MISS BRAGANZA: I think it's subject to -- I need to find it. (Pause)

MISS LEAN: My Lord, I think we can probably find it.

MR JUSTICE BLAKE: Detailed assessment.

MISS LEAN: Detailed assessment, and subject to the various regulations provisions, the standard wording.

MR JUSTICE BLAKE: If you could help the associate with the order that reflects the current form of that.

MISS LEAN: Yes, I will.

MR JUSTICE BLAKE: But in principle you can't resist it.

MISS BRAGANZA: No, I've lost.

MR JUSTICE BLAKE: No. Is there anything else?

MISS BRAGANZA: No, my Lord.

MR JUSTICE BLAKE: All right. Well thank you both very much.

MISS BRAGANZA: Thank you.

MISS LEAN: I'm sorry, my Lord, I was just -- detailed assessment of publicly funded costs.

MR JUSTICE BLAKE: Yes. All right.