Jaku & Ors, R (On the Application Of) v Secretary of State for the Home Department

I heard these three cases together as they raised similar issues about the effect of the Legacy Programme on the SSHD’s decisions on purported fresh claims made by the Claimants. Mr Prenga’s claim was settled, leaving a costs issue which I shall come to at the end of this Judgment. This judgment adds to the growing number of judgments on the Legacy Programme in which Claimants have raised misconceived arguments in an endeavour to show that the SSHD’s decisions on what they asserted to be fresh claims were unlawful.

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 of fresh claims, especially from failed asylum seekers whose removal had not been achieved, or were failed claimants awaiting removal.

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 Chapter 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 Chapter 53, although there are provisions in the Rules to be considered before a removal decision is taken.

I shall come to what is meant by the “conclusion” of a case within the Legacy Programme, but taking it simply for the moment, where a case is not concluded by actual removal or grant of leave, it remains within the Legacy Programme if the original application was made on or before 5 March 2007, however often a further claim or decision is made after that. It remains in the NAM if the claim is made after 5 March 2007, however long before that the applicant had arrived in the UK. If two applicants for asylum arrived on the same day in 2001, and one made the asylum application on 4 March 2007 and the other on 6 March 2007, their claims would always be considered after 5 March 2007 in different programmes.

There is no provision for the making of an application to be considered as part of the Legacy Programme; a person either had or had not made a claim on or before 5 March 2007 and that claim either had or had not been concluded. The language of applications in this context, which both UKBA and applicants use, much as a matter of convenience, has no formal significance. It is often used in the context of an application by someone who falls within the Legacy Programme to have further representations considered as a fresh claim, although of course there would have been some who were applicants in the sense that their application for asylum had not yet received even an initial decision. But it is not a Programme one can apply to join.

At the heart of much of the litigation over the years have been eventually largely fruitless and in my judgment misconceived attempts by Claimants to show that there was a special and more favourable policy which should be applied to those in the Legacy Programme, derived from a target or aim as to the date by when decisions would be made. This target then was elevated into a legitimate expectation; missing it was said to create unlawful delay such as to create an historic injustice, leading to arguments that particular forms of leave should be granted, that policies should be treated as frozen, that particular periods of residence should be given great weight, all deriving from a misreading of policy and especially of alleged policy documents at a level below the EIG.

I now turn to the cases which set out principles and conclusions from the evidence about the Legacy Programme. A summary of their effect by Lewis J in Mohammed v SSHD [2014] EWHC 98 (Admin) serves as a useful introduction:

“In broad terms, those cases confirm that the legacy programme did not confer substantive rights or set out substantive criteria for determining whether or not to grant leave to remain. Rather it was an operational programme for dealing with the backlog of cases and cases would be dealt with in accordance with the law and policy applicable at the material time. There was no policy, or legitimate expectation, that all those who were not to be removed would be granted indefinite leave to remain nor was a refusal of indefinite leave to remain inconsistent with the rationale of the legacy programme (see Geraldo).”

The first case to describe the background to the Legacy Programme was FH and Others v SSHD [2007] EWHC 1571 (Admin), Collins J, paragraphs 12-18. That case was however not concerned with the outcome of the decision-making process but with the lawfulness of the delays which were involved in asylum claims decision-making; unlawfulness would have had to be met by the application of further resources. The Government set itself a five year target, ending in July 2011, for concluding, in the simple sense, all the Legacy Programme cases. Collins J made no findings as to the legal significance of such a target beyond its relevance to the issue he faced over the lawfulness of delay.

The next case commonly cited, and the first in the more recent line of legacy cases is Hakemi and Others v SSHD [2012] EWHC 1967 (Admin), Burton J. In July 2011 the Casework Resolution Directorate, CRD, created to deal with the resolution of the cases in the Legacy Programme, transferred the remaining active cases and the “controlled archive” cases, ones in which there were various difficulties in their resolution, such as missing files or loss of contact, to the Case Assurance and Audit Unit, CAAU. Burton J deals with some of the issues which arise here, including the meaning of a slightly garbled passage in Chapter 53 EIG, and the lower level of alleged policy relied on, two emails in particular, and the significance of what officials from UKBA and CAAU had said in witness statements. These were said to amount to unpublished policies; Burton J did not find that they were policies, see paragraph 32.

A case often cited in this context is Mohammed v SSHD [2012] EWHC 3091 (Admin), Stephen Morris QC sitting as a Deputy High Court Judge. He referred extensively to the evidence considered in Hakemi. He interpreted Chapter 53 EIG, as amended, as requiring significant weight to be attached to a period of residence of 6 years or more. The letter under challenge in that case had made no specific reference to that context, nor had absconding been considered as a weighty countervailing factor. By the time he came to quash the decision, the Immigration Rule to which the EIG cross-referred as a source of relevant factors had been changed; no longer was it paragraph 395C, but paragraph 353B as from 13 February 2012, which was more restrictive in approach. As the broader 395C approach applied at the time of the unlawful decision, as he found it to be, he concluded that the SSHD, on reconsideration, ought to apply the factors in paragraph 395C or at least ought to consider whether, if the Claimant would have succeeded on the application of that paragraph, it would be unjust for her to fail now on the application of paragraph 353B, if that is how the decision on paragraph 353B would emerge. (In fact, she lost on reconsideration and her further challenge has so far failed at the paper permission stage.) I shall have to return to that decision.

Mitting J helpfully summarises the factual and legal nature of the Legacy Programme in Shah v SSHD [2013] EWHC 2206 (Admin).

The SSHD’s evidence on Legacy Programme issues was the subject of cross-examination in Geraldo and Others v SSHD [2013] EWHC 2763 (Admin), King J. The issue was whether the policy in effect from 20 July 2011 of granting three years Discretionary Leave to Remain, DLR, instead of Indefinite Leave to Remain, ILR, if an applicant within the Legacy Programme was granted leave outside the Rules, was in breach of some legitimate expectation. The Claimants asserted that the fact that the SSHD had said that each claim “should have been dealt with” by 19 July 2011 meant that cases decided after that date should not be caught by the change in policy with effect from 20 July 2011 to grant DLR rather than ILR. The background to the Legacy Programme is set out again in paragraphs 38-54 and 60-63. There is much in what King J has to say which is of general relevance to legacy cases beyond the issue of DLR versus ILR. What he says about the alleged commitment to conclude all legacy cases by a specific date, 19 July 2011, paragraphs 82-107 is apposite. I do not think that all the Claimants’ advocates before me really appreciated the broader significance of what he said for the arguments which they were mounting on issues other than the DLR v ILR debate, which did not arise in these cases. I agree with his judgment. To my mind, it is clearly right.

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 paragraphs 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.

39.

Inevitably, given that the Legacy Programme was expected to take some time to resolve, law and policy were likely to develop or change over time and consistency required that current law and current policy (applicable throughout UKBA) should be applied to each case considered at the time of its consideration. Where the policy and guidance changed to provide for a more favourable approach, for example, in respect of shorter periods of residence considered significant as part of the assessment of all factors relevant to the grant leave, cases considered after such a change would have the benefit of the more favourable policy and guidance. However, the reverse was also the case, and where the factors became more restrictive, these applied with equal force to legacy cases (as to other cases across UKBA) considered under the policy and guidance applicable at the time of the decision.

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.”

In paragraphs 41-46 she considered the basis upon which a case in the Legacy Programme became “concluded”. It was wider in reality than merely a grant of leave or an actual removal, since there were cases in which contact had been lost with an applicant, files were missing or duplicated, removal was inhibited by prison sentence and so on. She plainly agreed with King J, as do I. In paragraph 41, she referred to what King J had found to be “the clear evidence … that the Legacy Programme did not have its own substantive polices, that there was no amnesty, and that each case falling within its cohort would be determined by reference to current law and policy applicable across the UKBA.” The target to reach decisions by July 2011 was not shown by the evidence to be more than an aim to consider every case and make a decision in every case that was capable of being decided. There was no binding commitment made by the SSHD when the Legacy Programme was established, whether to Parliament, the public, or to each legacy applicant to conclude these cases, still less to so do by any particular date, (see paragraph 102 of Geraldo and following). Nor was there any binding commitment of policy to do so at a later stage.

Simler J concluded in paragraph 46:

“Since inclusion of a case within the legacy programme gave rise to no new rights or additional expectation of the grant of leave, the only expectation an individual could have is to have his or her case considered in accordance with current law and practice, and if leave was not granted removal could therefore be expected. Accordingly, it is difficult to see why once a person has received a decision refusing the grant of leave and is therefore to be removed, but has not actually been removed, that person's case under the legacy programme should not be regarded as concluded by such a decision.”

My only point on the last sentence of the paragraph is that, entirely reasonable though it is, it remains the case that until the case is concluded by grant of ILR, or DLR as the case may require in the application of the Rules or of policy outside the rules, or until departure occurs enforced or otherwise, any case remains, as a matter of current policy, within the Legacy Programme, even though for various reasons there may be nothing more which can be done about it.

What Simler J has to say in Hamzeh bites on the arguments in this case. It is regrettable that the substantive arguments before me were not focussed on whether her decision was wrong, and if so why, or distinguishable, and if so why, but rather repeated the arguments for all the world as if none of the earlier decisions had been reached.

With that introduction, I turn to the individual cases before me. The more comprehensive argument was in Mr Khaled’s case, and so I shall deal with that first.

Mr Khaled is an Algerian, born in 1964, who arrived in the UK in July 2001 and claimed asylum. This was refused in September 2001. His asylum appeal was finally dismissed in May 2003. His account of persecution was disbelieved. His human rights appeal, relying on Articles 2 and 3 ECHR, was also dismissed. Thereafter he ceased to report as required, and in effect became an absconder until August 2010, when he made contact with the UKBA to make further representations. Thereafter he has reported as required. So, his case fell within the Legacy Programme since he was still in the UK and had made his asylum claim before 5 March 2007, even though the claim had in fact been decided and as it had been decided adversely to him, he ought to have left the UK. He may have had excuses for not reporting because of his lack of stable accommodation, (though his 2012 witness statement is decidedly selective in his account of the intervening years), but he should have left the country.

He asked that his August 2010 representations be considered as a fresh claim to remain on asylum or human rights grounds. The applications were rejected in a letter of 6 April 2011. These further submissions were also considered under paragraph 353 of the Immigration Rules to see if they amounted to a fresh claim, but it was found that they did not. His Article 8 claim was rejected. He had failed to provide supporting evidence. The possibility of granting DLR was considered but rejected. The decision-maker then went on specifically to consider each of the factors in paragraph 395C of the Immigration Rules, and to reject them as a basis for a favourable decision outside the Rules under the Legacy Programme. The fact that he had failed to report for seven out of the nearly ten years he had been here and had been non-compliant with the immigration authorities counted against the length of time he had been here and the absence of criminal record and otherwise law-abiding behaviour; (there was a dispute about whether he had satisfied his reporting requirement between 2001-3 by noting his presence on a form he put up on the wall in his NASS accommodation, not an immediately persuasive claim).

It is convenient here to set out paragraph 395C which deals with “compassionate circumstances”:

“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.”

On 31 July 2011, the CAAU wrote a letter to Mr Khaled on which Ms Braganza, who appeared for him, put considerable weight. It has all the appearance of a standard letter. It said that the UKBA had concluded its internal review of all outstanding legacy cases, and continued:

“Your case has been reviewed but is one of a very small number of cases on which we have not yet been able to come to a final decision. We aim to notify you of the decision on your case by the end of August, where possible. If for any reason this is not possible we will explain to you why and set out the next steps in your case.” The CAAU would be dealing with it. “Cases will be resolved in accordance with the existing law and policy”.

His case was not resolved by the end of August in the eyes of the CAAU, despite the adverse appeal decision in 2003, and the refusal letter of 6 April 2011 to which there had been no challenge. He attended interviews as requested in September 2011. A decision was chased by solicitors now acting for him. In August 2012, they submitted yet further representations, referring to Hakemi and foreshadowing the sort of arguments on policy which later cases considered.

By letter dated 15 October 2012, and this is the primary decision challenged, the UKBA rejected the representation as amounting to a fresh claim. The letter accurately described the CRD’s function:

“CRD was established to resolve all incomplete older asylum cases where the initial asylum claim was made prior to 5 March 2007 and which had not been concluded. As has been made clear on our website, CRD was not an amnesty and cases are considered in accordance with existing rules/policies. 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.”

The letter responded to his application saying:

“Whilst it is accepted that you have been in the country for approximately 11 years it is noted that you have failed to demonstrate that you have had 11 years residence in the UK as required by Rule 276ADE (iii). Therefore your further submission claim has been fully considered by an officer of UKBA and has not been accepted due to your non-compliance.”

The supporting consideration rejected any asylum or Article 2 or 3 ECHR claim. The position under the Immigration Rules was analysed in relation to Article 8, and his claim rejected.

The claim outside the Rules was next dealt with, and in particular the contention that he had not sought to evade the immigration authorities after 2003. The letter pointed out that CRD cases were not treated as an amnesty:

“However, it is noted that you have not adhered to the Terms of your Temporary Admission as you have claimed and have only reported from 20/8/2010 to the present day, this only equates to 2 years and 2 months of compliance. You have evaded immigration control and have failed to cooperate with the UKBA’s reporting requirement over a total of seven years, of the eleven years you have been in the UK. Therefore it is not accepted that all things are equal as you have claimed and it is not accepted that you should qualify for leave under the legacy programme. ”

This approach to non-compliance was significant to Ms Braganza, and said to be unlawful in the context of her interpretation of various documents which were said to be policies applicable to Mr Khaled.

As the representations had not been accepted as a fresh claim, paragraph 353B of the Immigration Rules now fell to be considered, as the decision was after 12 February 2012. This deals with “exceptional circumstances” and reads:

“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 first criterion did not lead to any negative conclusion but there was no exceptional positive factor either. On compliance with conditions of temporary admission, the letter said:

“It is noted that you have not adhered to the Terms of your Temporary Admission and have only reported from 20/8/2010 to present day, this only equates to 2 years and 2 months reporting. You have evaded immigration controls and have failed to cooperate with the UKBA’s reporting requirement over a total of seven years, of the eleven years and thee months you have been in the UK. This is because you failed to report between 03/09/03 and 20/08/10. Your length of temporary residence therefore mitigates against any concession on these grounds.”

As much of his residency had been accrued illegally, when he knew he had no basis for staying in the UK, the length of time he had spent here did not justify allowing him to remain.

The Pre-Action Protocol letter of 12 December asked for the decision to be reconsidered, with some more elaborate legal argument, in particular relying on what Mr Morris QC had said in Mohammed about the significance of a period of residence of 6-8 years, and contending that Mr Khaled’s over 11 years residence had not been considered as required by that judgment. The reply of 8 January 2013 said that the length of residence had indeed been considered “alongside all of the other relevant considerations.” He had given no reasons for remaining in the UK after his appeal had been dismissed. This was weighed against the length of residence and the other factors in Chapter 53 EIG.

The 2010 and the two 2011 versions of Chapter 53 EIG are entitled “Extenuating circumstances”. They affirm the policy to remove those who entered unlawfully unless it would breach the Refugee Convention, the ECHR “or there are compelling reasons, usually of a compassionate nature, for not doing so in an individual case”. Before a decision is taken to remove illegal entrants and those subject to administrative removal, all relevant circumstances must be considered; they are the same as the factors outlined in Paragraph 395C. This list is not exhaustive. The relevant factors need to be taken as a whole; length of residence may not of itself be a factor unless combined with other factors such as age or strength of UK connections.

Where residence has accrued as a result of non-compliance by an individual with immigration requirements imposed on them, this weighs against them. Chapter 53 then refers forwards to “Personal History” in which failure to maintain contact, deception and attempts to frustrate the process of removal are relevant. The history of compliance and non-compliance had to be taken in the round:

“The weight placed on periods of absconsion should be proportionate to the length of compliant residence in the UK. For example, additional weight should be placed on lengthy periods of asbsconsion which form a significant proportion of the individual’s residence.”

Chapter 53 then deals with “Residence accrued as a result of delay by UKBA.” Provided that none of the factors in the “Personal history” section weigh against the individual, weight should be placed on “significant delay” which it illustrated in the case of an individual as being where 3-5 years had elapsed after an initial or “in-time” application without decision. After dealing with families, the passage under this heading in chapter 53 continued:

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

Changes in the Immigration Rules were required, as it then appeared, as a result of the Court of Appeal decision in Sapotka [2011] EWCA Civ 1320. The changes in the Rules took effect on 13 February 2012. The changes were explained in the Explanatory Memorandum as being to make clear that non-compliance with immigration law was a factor to be considered alongside the length of time a person had spent in the UK, and that there had to be a reason beyond the person’s control to explain why they had not departed from the UK, when deciding whether there were exceptional reasons why removal was no longer appropriate.

Chapter 53, still entitled “Extenuating circumstances”, was amended to say that illegal migrants would be removed unless removal would breach the Refugee Convention or the ECHR, “or there are exceptional circumstances for not doing so in an individual case”. Those whose rights of appeal had been exhausted, and who had made further representations on the basis that exceptional circumstances existed, would have those considered having regard to the factors outlined in paragraph 353B of the Rules. The relevant factors were to be taken as a whole; the discretion not to remove would not be exercised on the basis of one factor alone. Evidence of attempts to delay the decision-making or removal process or of other non-compliance with immigration requirements would weigh against the individual. Account should also be taken of deception, failure to comply with reporting conditions, illegal working and a “sustained history of compliance with every requirement UKBA has made of them”. All evidence of compliance and non-compliance had to be assessed in the round but “repeated non-compliance and/or lengthy periods of absconding will generally mean that an individual cannot benefit from exceptional circumstances, unless there are strong countervailing reasons in their favour”. The length of residence which had accrued for reasons beyond the migrant’s control, including because of significant delay in decision-making by UKBA should also be considered; examples were given. The concluding paragraph under this heading is different from that in earlier editions, but not without its own syntactical problems:

“Any other case where the length of delay by UKBA in deciding the application, or where there were factors preventing departure, the case worker following an individual assessment of the prospect of enforcing removal and where the factors outlined in “Character” and “Compliance” do not weight [sic] against the individual, concludes that the person will have been in the UK for more than 6 years.”

Chapter 53 EIG is the obviously relevant policy document. Ms Braganza however submitted that two emails were also policy documents, and with which the 15 October 2012 decision was in conflict. On 31 August 2011, Mr McEvoy, an Assistant Director of CAAU, had emailed the following to caseworkers:

“Here are the lines to take under the 395c criteria

Stuart

2.

CAAU have analysed the data and feel the most appropriate way to deal with these cases is to apply the following criteria under paragraph 395c. This has been discussed and agreed with Emma Churchill, Hugh Ind and Jo Liddy:

•

Use the lowest limit of 4 years residency for single applicants.

•

Use the lower limit of 3 years residence for families.

•

Accept any reporting activity in the last 12 months as sufficient evidence of compliance.

•

Grant 3 years DL to applicants who’s [sic] further leave application has been outstanding for more than 3 years or where an initial asylum claim has been outstanding for 2 years.

•

Agree a number of files may need to be decided without the Home Office file.”

The next day another CAAU official emailed case workers:

“I know that some of you may have heard that there have been changes to the interpretation of Para 395c. I can now confirm that from today caseworkers are now following a new consideration proforma which is attached to this e-mail and they have received the following lines when applying Para 395c;…

I have been advised that these lines have been approved and that this is the approach that caseworkers are now to take.”

(The lines referred to are those in the previous email.)

Ms Braganza also relied on what Mr Forshaw, Assistant Director of UKBA, had said in a witness statement given in evidence in Hakemi. He said in effect that the SSHD’s published policy in the EIG, general to the whole of the UKBA, involved “granting [leave to remain] (other factors being equal) where a person has resided in the UK for 6 years whereas before they would not have done so until residence had reached around 10 years (although this figure was never specified).”

Ms Braganza next referred me to the Note in the House of Commons Library of 10 August 2010 which referred to the UKBA website as saying that one exception to which priority should be given was “inconsistent handling of linked cases”. This of course does not bear upon any issue of supposed inconsistency between cases which are not linked. The note also referred to the updated EIG of 2009 which gave caseworkers “scope to consider” granting permission to remain if the applicant had been in the UK for 6-8 years, rather than 10-12 as previously. This had been noted by the Home Affairs Select Committee in its 4^th Report on the UKBA, from the evidence of Mr Vine, the Independent Chief Inspector of the UKBA, since it had increased the number of cases concluded quickly. This, submitted Ms Braganza, was specific to the Legacy Programme and illustrated the differences between cases in the Legacy Programme and those in the NAM. Ms Braganza accepted however that there had been no challenge to the supposed application of that change exclusively to Legacy cases by anyone in the NAM, which would be very surprising were she right.

Finally, I was taken to the November 2012 report of Mr Vine. He was critical of the work of the CRD and of the transition to the CAAU of the 147,000 cases which remained unresolved as at March 2011, whether because no decision had been made or because the individual could not be traced. His report recounts the various organisational and policy changes, and makes a number of recommendations for organisational changes. It gives examples of what he regards as inconsistent decision-making. This report listed what it said were the main criteria applied by UKBA to those in the Legacy Programme, and in two places referred to situations in which Mr Vine concluded that exceptions permitted the continued grant of ILR, after the general change in policy, to some CAAU cases but not to others, and not to those in the NAM. Ms Braganza relied on this to show that CAAU cases were subject to different and more favourable policies than NAM cases, although those specific aspects did not assist this Claimant.

The Vine report preceded the decision in Geraldo and King J’s comments in paragraphs 64-66. Ms Anderson for the SSHD did not accept that Mr Vine had understood the policy position correctly here, as she said had happened on other occasions as well. She suggested that Mr Vine might have misunderstood the SSHD’s residual discretion and treated it as creating policy exceptions. Simler J in Hamzeh paragraph 15, doubted the relevance of the Report to the legal issues.

Ms Braganza raised eight grounds on which she said that the SSHD had “fundamentally” erred in law, which can be reduced somewhat. The SSHD, because of her letter of 31 July 2011, ought to have made a decision by the end of August 2011, applying the policy then in force, which would have referred to the 2011 version of EIG, and to paragraph 395C of the Immigration Rules. There was no policy requiring exceptional circumstances then. At the very least, she ought not to have made a decision by reference to any changed policy without considering the historic injustice to which her new approach would give rise. There was no reference to the 31 July promise. A transitional policy ought to have protected that legitimate expectation.

The SSHD failed to apply her criteria on periods of residence and compliance to be found in the emails of 31August and 1 September 2011, in the light of which Chapter 53 EIG had to be interpreted. The length of residence here exceeded 6 years which should have been expressly treated as a significant factor for legacy cases as required by Mr Morris QC in Mohammed. The Claimant had been compliant for more than a year at the date of decision. There was no reference to the reasons for his not reporting set out in his witness statement. The fact that he had been unlawfully present was not a factor in legacy cases.

The SSHD had failed, in these respects to exercise her discretion and had acted inconsistently, unfairly and irrationally. Fairness required the same policies and instructions to be applied alike to all Legacy cases, which themselves were a separate category of cases, to which different policies applied from those applicable to non-legacy cases. Consistency was required for rationality: EB (Kosovo) v SSHD [2008] UKHL 41, [2009] 1 AC 1159 paragraph 31. This case also highlighted, paragraphs 14-16, the significance which delay in decision-making might have. (It also highlights, in paragraph 13, the well-established obligation to have regard to the facts and policy in force at the time when the decision is made).

Ms Braganza adopted the submissions which were rejected in Hamzeh; that was all that the Skeleton Argument said of it, and it was not easy to discern from oral argument the extent to which she acknowledged that her submissions had already been considered and rejected.

There is nothing whatsoever in any of her arguments. I emphasise my agreement with the judgment of King J in Geraldo, which bears upon some of the factual material and on the thinking underlying a number of the arguments run here, and with the judgment of Simler J in Hamzeh.

The first fallacy in Ms Braganza’s submissions is that legacy cases are a distinct class of case to which different policies apply from those which would apply to those not in the Legacy Programme. The Legacy Programme is an operational process for dealing with the backlog of unresolved applications made on or before 5March 2007. The NAM deals with applications lodged after that date. The same Rules apply to cases in the two programmes. There is no basis for the suggestion that a different policy applied to them. The EIG does not so suggest. They are not differentiated, as at the date of any decision or action, by the individual’s date of arrival in the UK, length of residence, UKBA delays, or non-compliance. Legacy cases cover the same spectrum of cases with the full range of merits, or lack of merits, and of human circumstance as those claims in the New Asylum Model.

The two emails of 31 August and 1 September 2011 do not relate to the generality of Legacy cases, but to “these cases” which are only a subset of them: that is only 4,800 cases which had not been “reviewed” by the CRD, in the sense that there had been no review decision, which were at the pre-screening stage and were likely to be granted. This issue has been considered in both Geraldo,paragraph 48,and Hamzeh,paragraphs 14 and 33. If they do suggest a change of policy, and that is at issue, see Mr McEvoy’s witness statement, the cohort to which it applies is limited indeed. There is no evidence that this Claimant falls within it, and he did not suggest that he did so.His entirely misconceived contention that the emails applied to all Legacy cases has been disapproved at least twice.

The other references cited to me by Ms Braganza as showing that there were separate policies for Legacy cases simply do not support the contention. Mr Forshaw’s witness statement is a reasonable summary of the effect of the EIG policy, but not a substitute for its emphasis on considering factors in the round. The priority to a Legacy case, handled inconsistently with a linked case, (it would usually be a family member), deals with priorities in a backlog, not with a separate principle inapplicable to NAM cases.

The Vine Report cannot itself be a source of Government policy. There is no sound basis for saying it evidences a practice, which is in effect a policy, and applicable only to Legacy cases, and which bears upon the merits of the cases.

The second fallacy is that there was some obligation to apply policies applying at a date earlier than the decision challenged. The correct approach, and there is no policy to suggest otherwise, is to apply the policy prevailing to the facts existing when the decision is made. That is the only legitimate expectation which the Claimant has. As Simler J points out, applicants have taken advantage of changes in policy which have assisted them, including the reduction in the general residence requirement. This principle is clear from EB Kosovo and has been applied routinely in Legacy cases of which Hamzeh is but one recent example, and Lewis J in Mohammed, paragraph 19, provides another.

The suggestion that the language of the letter of 31 July 2011 created a legitimate expectation of a decision by the end of August is misconceived. Its terms are too equivocal and qualified; it expresses an aim. It was not a promise, clear, unambiguous and devoid of relevant qualification. And in this case, the Claimant had had two decisions already, each finally disposing of his application and attempted fresh claim as at the date of the 2012 decision challenged: in 2003, and again in 2011. In reality, it would not have struck any reasonable reader that a yet further decision would be promised so soon. In Che v SSHD [2013] EWHC 2220 (Admin), Mr Ockelton, sitting as a Deputy High Court Judge, dealt with a similar issue. As Mr Ockelton put in paragraph 42:

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

I also agree with what he said about the nature of the decision-making in the Legacy Programme when a decision refusing to grant leave has been made but no removal decision has been made nor has the applicant been removed. He pointed out in paragraphs 30-31 that once a person has been refused leave, he is to be removed under the Legacy Programme but that process of removal takes time, although he knows that his case is not one of those to be concluded by a grant of leave. It would be wholly unarguable to say that such a person has not had a “legacy decision”. The decision-making is over; it is only the mechanics of removal which remain.

But the sting of Ms Braganza’s point is in the argument that the legitimate expectation was not just of a decision, but that if one were not arrived at by that time, the policy background, for better or worse, would be frozen, or at least the fact of later change would be considered. That is an impossible contention. The language of the letter of 31 July 2011 is simply not strong enough to convey such a change from the normal practice and lawful expectation of those to whom a decision is addressed. This was considered in Geraldo, as was the argument that the promise stopped the clock for policy changes adverse to the Claimant, though presumably not for those favourable to him or for factual changes which might assist. The issue in this case is not akin to the issue which arose before Mr Morris in Mohammed, in which the decision quashed as unlawful, would then fall to be retaken on a less favourable policy basis. That case did not hold that the policy applied had to be the more favourable one prevailing at the time of the unlawful decision, but that the fairness of not applying it should be considered in the exercise of the discretionary powers of the SSHD, because of the otherwise continuing adverse effect of the unlawful decision.

As in Mr Khaled’s case, there was no legitimate expectation that the decision would be made by the end of August 2011, there is no reason for the SSHD to have considered, in her latest decision, any policy other than those prevailing at the time of decision. Therefore, she correctly considered the 2012 version of the EIG and paragraph 353B. The argument that the introduction of a change in the Immigration Rules to which the EIG referred, from 395C to 353B, required a transitional provision to protect those in Mr Khaled’s position is equally untenable. It is but a disguised version of the same point; the source for such an obligation can only be the same supposed legitimate expectation which I have found does not arise. Nor is there scope, on the facts of this case, for an argument that there was a delay in reaching a legacy decision, for there was none, let alone sufficient to demonstrate an unlawful delay, depriving someone of a benefit which should be considered as a factor in the decision when eventually taken.

Moreover, as Ms Anderson for the SSHD pointed out, this Claimant had in fact had a decision in April 2011, applying the factors in 395C which he said should have been applied in October 2012, and it was negative.

The provisions of Chapter 53 EIG, as at October 2012, were properly considered. It is next to impossible to fashion a case that the fresh claim was not lawfully considered on the wording of the policy. One issue is what is meant by the rather ungrammatical language of the passage from the 2011 EIG cited above. Burton J in Hakemi and Stephen Morris QC in Mohammed interpreted it as if the passage after the comma, starting “Following” related to a period of residence regardless of any delay to which UKBA might have contributed through delays in decision-making. I did not read it in that way since it seems to me that the heading “Residence accrued as a result of delay by UKBA” and the sense of the passage are that they relate to periods of residence which have been contributed to by delays in decision-making. The effect of periods of residence on the prospects of leave being granted is left quite open under the heading “Personal History”.

However, Ms Anderson accepted that those two decisions were correct in reading the periods of residence referred to as being periods of residence after which a grant of leave to remain would fall to be considered. In the absence of reasons to the contrary, or in Mr Forshaw’s words, “all else being equal”, leave would be granted. I have some doubts as to how far that goes as a statement of policy, if it says more than is in the EIG. The same interpretative approach should then, it seems to me, be applied to the new garbling in the equivalent passage in the 2012 EIG. A period of more than 6 years residence, all else being equal, would lead to a grant of leave, whether or not there was UKBA delay in decision-making or factors preventing departure. As I say, that is not how the 2011 or 2012 EIG appears to be written, but I am not prepared to reject the earlier judgments to contrary effect, supported as they are by Ms Anderson. The passage may be significant to that extent, but the EIG still has to be read as a whole, and the factors considered in the round.

I think that Mr Morris rather overstated the significance in paragraph 78 of Mohammed, if he was requiring the SSHD to demonstrate that she had given the period significant weight in her thinking in order to show that she had properly applied her policy. Or at least, what he said has been given significantly greater significance than he intended in relation to how such a period of residence should be approached. There is no requirement for an express reference to the EIG for the SSHD to show that it has been considered; nor is it necessary for her to demonstrate that it had been given significant weight. It is necessary for a decision to show that the period of residence of 6 years or more has been considered in the round with all the other factors. The significance of that period of residence may be diminished by residence if non-compliant, or discounted by periods of non-compliance; it matters not precisely how that is expressed. But all that is required is that the decision should explain why leave is not being granted after six years residence. The fact that all or a significant proportion of the period was non-compliant with the law is of itself a perfectly satisfactory reason for discounting the period, on the basis set out in the EIG.

The SSHD here was not obliged to comment on Mr Khaled’s excuse of unstable accommodation for not reporting, since that is a common position for those who have no leave to remain and should depart the UK. It is for them to arrange to report. It is difficult to see that such an excuse, if true, could rationally affect the fact of non-compliance.

There is no requirement for some other reference to be made to Chapter 53, since there was nothing else to consider under it. The reasons given relate to the representations made and if there was nothing new, there would be very little to say.

Once it is realised that the 31 July 2011 letter created no policy or practice or representation as to the date by which yet another decision would be reached, and did not operate so as to freeze the policy position in any event, and that the emails are of no relevance to this case, there is no case. The period of residence is obviously affected by the period of non-compliance. No reading of the EIG or emails or Mr Vine’s report enables it to be said that the period of residence required should ignore periods of non-compliance. Whether or not they lead to a straight discounting of a day’s non-compliance against a day’s compliance, and the policy in the EIG does not suggest so, there is here a very prolonged period of non-compliance after the appeal was dismissed in 2003, which is far longer than periods of compliance. It would require a clear policy for periods of non-compliance, during which removal might have been effected, to count as compliant or to be ignored. It is difficult to see a clearer encouragement to absconding. There is nothing wrong with the decision letter’s appraisal of the length of residence in the round with the periods of non-compliance.

It is also said that there was a period of compliance after August 2010 in excess of 1 year. That is correct but irrelevant. The significance of this period derives only from the emails of 31August/1 September 2011. This Claimant is not covered by those emails, properly understood and as explained by both King and Simler JJs. His period of compliance is also quite short, and comes after a prolonged period of non-compliance.

It was by reference to the legacy arguments that the challenge to this refusal to treat representations as a fresh claim was mounted. The decision is a manifestly lawful decision on the relevant factors in the round. This claim is dismissed. In reality, it is at least by now unarguable.

Mr Jaku, by a claim lodged on 28 September 2012, challenges the SSHD’s refusal to treat representations as a fresh claim.

The Claimant is a Kosovan who arrived in the UK on 1 November 2000, aged 17, and claimed asylum the next day; he was granted Exceptional Leave to Remain, from 13 March 2001-10 August 2001 when he turned 18. He appealed against the refusal of asylum but his appeals were finally dismissed and his rights of appeal were exhausted on 4 January 2002. Thereafter he had no basis for remaining in the UK. But he stayed unlawfully, failing to report as required. He was arrested on 28 February 2010. He submitted further representations to the SSHD on 22 March 2010, relying on human rights grounds and requesting consideration under the Legacy Programme. These representations were rejected by CRD as amounting to a fresh claim on 2 June 2010. His case was treated as part of the Legacy Programme. After consideration of his human rights and the rejection of that basis for a grant of DLR, the factors in paragraph 395C of the Rules were considered, but were not thought sufficiently compelling to justify allowing him to remain. A removal notice was served and so he had an in-country right of appeal which he pursued. It was dismissed on 8 November 2010.

The Immigration Judge found that he had established a “strong private life” in the UK, during the period he should not have been here; his removal was nonetheless proportionate. The Judge said that in dealing with the Article 8 claim, he had already had regard to most of the 395C factors. He then considered compassionate and compelling factors. The Claimant asserted that he had lost contact with his immediate family in Kosovo. The Judge said that he had “some reservations” about that evidence because the Appellant’s cousin, who gave evidence at the appeal, was in regular contact with his own family, and his father was the Appellant’s brother. “In such circumstances I do not find it credible that the Appellant does not know of the whereabouts of his immediate family but even if true it is clear to me that he has wider family in Kosovo to whom he could turn for support should he need it upon return.” I make that point because Ms Allen was inclined to focus on the comment about “reservations”, and ignore the rest of the conclusions.

The dismissal of the appeal was but the precursor to further representations on 1 December 2010. These do not contain any new information, and mention neither specific nor general change in circumstances, nor further evidence; and they ignore the absconding, the 2010 decision and the 2010 appeal. They simply assert that it is “expected” that he has “absolutely no ties” with Kosovo, because he left his family in 2000. There is scarce a reference to the Legacy Programme beyond saying that exceptional cases can be taken out of the queue, and this was an exceptional case essentially for Article 8 and other compassionate reasons. The Claimant had suffered undue delay.

The solicitors writing the letter appear not to have had full instructions, or to have been deceived by their client. Indeed, correspondence in 2011 from the solicitors to the UKBA threatening judicial review because of the delay and lack of progress contends, wrongly, that the Claimant had had no consideration for his Article 8 claim for 11 years. He had in fact had it considered twice, once in 2001 and again in 2010.

On 3 April 2012 UKBA wrote saying that the case had been transferred from CRD to CAAU, and that the only outstanding submissions were dated 28 November 2011. (This appears to be a mistake). No particular time for a decision was given, but there was no reason to give this case priority. This same view was expressed in a letter of 10 July 2012.

His representations of 1 December 2010 were rejected by letter dated 4 September 2012, sometimes referred to in the claim documents as the letter of 7 September 2012. The letter first considered the Article 8 claim, the length of time the Claimant had been here, and the skills he had developed. It pointed out that he had not had 20 years residence in the UK as required by Rule 276ADE(iii), and so failed to meet the requirements of rule 276BE. Rule 326B and Appendix FM were considered in relation to family life, but there would be no interference with family life and so removal would be proportionate. There was no arguable fresh claim based on asylum or human rights grounds. The letter then went on to consider exceptional circumstances and paragraph 353B. Neither his character references nor his personal history were sufficiently compelling. The time spent in the UK after his appeal rights were exhausted in January 2002 was not for reasons beyond his control. None of his circumstances were sufficiently compelling to justify permitting him to remain.

The Pre-Action Protocol email contended that he had a legitimate expectation “that his case would be considered properly” before July 2011. The decision failed to apply the SSHD’s own guidance to be found in the 2009 report of Mr Vine, the Chief Inspector of UKBA, which found criteria considered were: age, length of residence, strength of connections, personal history, domestic circumstances, criminal record, compassionate circumstances, and any representations. Case workers could now consider granting permission to stay to those who had been in the UK for six to eight years.

This prompted a further letter dated 20 September 2012. It referred to the Claimant’s lengthy period of absconding from early 2002 till early 201I. It referred to case law on delay and to the 4 September 2012 letter.

The 4 September 2012 decision was challenged as unlawful by reference to arguments about the policies applicable to cases within the Legacy Programme. Almost all of the grounds and supporting material are quite general and very little concerns this particular Claimant. The decision of June 2010 and the dismissal of the subsequent appeal were not mentioned in the grounds of claim.

Nicola Davies J refused permission on the papers in January 2013, but HHJ Anthony Thornton QC granted permission on 21 June 2013. Ms Allen for the Claimant contended in her Skeleton Argument for that hearing that the representations should have been dealt with as a Legacy case but were not.

Notwithstanding orders for a Skeleton Argument to be supplied 21 days before this hearing, there was none. There had been a failed attempt to send one late in the day preceding this hearing. Apology was equally belated.

This new Skeleton Argument apparently tried to argue that the decision of 2 June 2010 was unlawful, because it had not dealt with the representations in accordance with the policies then applicable. I was not prepared to hear that argument in view of the lateness of its arising, the absence of an application to amend the grounds, the fact that the decision in question had been appealed, the knowledge which the Claimant’s solicitors in December 2010 had or could have had of it, the decision to pursue further representations in which no such point was made, and in my view the need for an extension of time, which I was not prepared to grant. I rejected the application for an extension of time, holding that in consequence the 2 June 2010 decision had to be regarded as lawful.

Ms Allen contended that the 2012 decision was unlawful because the SSHD had not applied her own Legacy policy to the representations. There had been no specific consideration of the McEvoy email of 31 August 2011 nor had the significance in policy terms of six to eight years residence or indeed any period of residence been considered. These were references, as Mohammed,paragraph 37 and Hakemi, paragraph 13, showed to any period of residence and not to residence lawfully here. There had been more than one year of compliant reporting, as required by the policy in the email. It was unfair that the delay in the decision had meant that it was made by reference to a change in policy. And that unfairness had not been considered either. The case had not been considered outside the rules, as the references to Rule 276 ADE and 20 years residence showed.

Even within the scope of Rule 276ADE, the SSHD had failed to consider 276 ADE (vi) which dealt with those who had lived in the UK for less than 20 years but who had no ties, including social, cultural or family ties, with the country to which they would go.

The Claimant’s submissions are without merit. I do not repeat the points made in Mr Khaled’s case. There was no evidence that the cohort to which the McEvoy emails related included the Claimant. I do not accept that there was a requirement to consider six years as significantly weighty regardless of the extent of non-compliant residence. Nor is it right that a period of a year’s compliance was sufficient in policy terms to wash away periods of non-compliance however long or high a proportion of total residence. However one reads the policy in the EIG, there is no basis for saying that the period of unlawful and non-compliant residence had to be ignored, or that it did not cause any longer period of residence to be significantly discounted or eliminated, viewed in the round. Ms Olley for the SSHD pointed out that Simler J in Hamzeh paragraph 93 had described the notion that a period of unlawful residence carried the same weight as a period of lawful residence as irrational, and certainly lacked any basis in policy. The period of lawful and compliant residence was not one within six or six to eight year’s unlawful residence. I have noted that Mr Morris in paragraphs 69-71 in Mohammed did not regard it as arguable that there was a policy of granting leave after six years’ residence outside Chapter 53 EIG, anyway, and I can see no basis for it either.

It is not possible to describe the period between the representations of 1 December 2010 and October 2012 as so unreasonable a delay as to be unlawful, or in breach of any legitimate expectation. No source for that was given beyond the general target for a conclusion in all legacy cases by 19 July 2011. But that is not capable of giving rise to a legitimate expectation that a decision would be made by then, let alone that further decisions after the first one would be, and regardless of the issues raised or not disclosed in submissions. There was no specific letter in this case. There is no basis either for holding that a legitimate expectation extended so far as to amount to an unambiguous promise that the policy and law would be applied to the facts as at July 2011, or that if policy and the facts had moved favourably or unfavourably since, the most favourable version of each would be applied. Indeed, the appeal decision in 2010 had considered his private life and paragraph 395C, and rejected it as a basis for a grant of leave to remain. The representations raised no new point.

The decision outside the Rules was rightly made by reference to paragraph 353B of the Rules. That was the current policy. There was no evidence to warrant making the serious allegation of an improper deliberate delay until after the change in policy. There was no delay so long as to be unlawful. There was therefore no need to consider such issues as whether an historic injustice had occurred which the SSHD had to consider remedying. There was no obligation to spell out in greater detail the period of non-compliance; the effect can readily be understood from a reading of Chapter 53 EIG. There was no need to deal further with the greater than six years residence since that was largely discounted because of the length of the time in non-compliant residence.

The consideration of Rule 276ADE is not flawed. Granted the SSHD made no specific reference to (vi), but the reference in Mr Jaku’s representations to the lack of ties to Kosovo was exiguous, and did not cover all the ties of culture and society which have to be considered. The appeal had already considered these ties, and in effect rejected the suggestion that there were none. Again, the representations added nothing to this.

It is not entirely clear to me at what point the Claimant told his solicitors about his unsuccessful appeal in 2010. But the SSHD does not appear to have considered the appeal either in her decision letters. I cannot help but feel that this was the consequence of it not being mentioned in the representations. It can only be deliberate concealment on the Claimant’s part. Had the SSHD considered the 2010 appeal decision, it is not conceivable that she would have reached a decision on 276ADE (vi) which was favourable to the Claimant. What he said in the letter was far more general and wholly unsupported by evidence, unlike the claim which the Judge rejected. His claim would have been rightly rejected on that ground as well.

This claim is hopeless and is accordingly dismissed.

This case was settled during the hearing before substantive submissions were made. The SSHD agreed on what Ms Anderson described as a “pragmatic” basis to reconsider her decision of 3 August 2012 refusing to treat further submissions as a fresh claim. I heard substantial argument on costs. Mr Husain QC for Mr Prenga sought an order for costs in the Claimant’s favour on the basis of the SSHD’s conduct of the litigation and on the merits of the claim. That was the framework he chose for his costs submissions. Ms Anderson said that no order for costs was appropriate and indeed a generous stance for the SSHD to take. Some background about the claim is therefore necessary.

Mr Prenga is a Kosovan Albanian who entered the UK in April 1999 aged nearly 16. He claimed asylum the day after his arrival. This claim was refused but in January 2001 he was granted ELR until 22 May 2001. In February 2003, he made an application for an extension of time, out of time. This was refused in February 2005 on its merits as there was no basis for asylum nor for regarding his removal as a breach of the ECHR. There is a dispute about whether for the years 2005-9, he reported as required. In 2009, he submitted a Legacy questionnaire. He was told in July 2010 that his case was being dealt with as a Legacy case, which the SSHD aimed to resolve, as with all such cases, by July 2011. In June and September 2010, and in March, May and July 2011 he submitted further representations as fresh claims. In February 2012, he issued proceedings challenging the lawfulness of the delay in reaching a decision on those submissions; proceedings were withdrawn when the SSHD agreed a timetable for reaching a decision. She reached a decision on 3 August 2012, after the date required by the Court’s directions in the settlement.

That led to these proceedings being started in October 2012. The grounds are entirely related to the Legacy case arguments. Permission was refused on paper but granted on renewal by HHJ Anthony Thornton QC on 12 July 2013, following an oral renewal hearing on 10 May 2013. He produced a considered judgment summarising the ways in which the challenge to the fresh claim decision was put: the fresh claim representations should have been decided upon by 20 July 2011, and decided by reference to the Rules, EIG, unpublished administrative guidance then prevailing and the practices of decision-makers in the CRD. These gave rise to a legitimate expectation on the part of anyone with six years residence, legal or illegal, that they would be granted ILR, absent a bad record or other sufficiently strong adverse reasons. Any claims not resolved by that date should be decided by reference to the same material, or by reference to some transitional provision which protected the same expectations. This was similar to Mohammed. The judge took the view that the melange of arguments required some refashioning of the grounds, and ordered that the amended grounds be provided within 7 days but not going beyond the ambit of the grounds upon which permission had been granted, giving the SSHD 28 days from service of the amended grounds to put in her full defence, with 14 days for reply.

The amended grounds, dated 23 July 2013, are a complete new document, rather than the previous one with appropriate deletions and underlinings. They focus on the Legacy case arguments entirely. The SSHD did not serve her defence to this document until 28 January 2014, or thereabouts. Ms Anderson explained that this was because there were other linked cases and she had been waiting to deal with all three together. Nonetheless, even the linking order of 9 January 2014, if applicable to and varying any earlier directions in Mr Prenga’s case, required them by 19 January 2014.

On the evening before the hearing on 4 February, I received a Skeleton Argument from Mr Husain. I have not tracked down the full directions made by HHJ Thornton after the handing down of his judgment on permission, but I doubt that such a timetable complied with any likely directions. It certainly does not meet the provision of Practice Direction 54A.

The Skeleton Argument takes rather a different line from the amended grounds. The legacy arguments remained but muted by the decision in Geraldo which I was invited to conclude was clearly wrong, and so not to be followed. I do not think that it is wrong let alone clearly wrong; it is clearly right. Indeed a number of judges, faced with the argument that the grant of permission in this case meant that the propositions were arguable even before Geraldo, had declined to agree; some however felt obliged to go along with it.

The first argument in Mr Husain’s Skeleton Argument however was new. The transitional provisions for the 14 year residence Rule, which encompassed lawful and unlawful residence, and which was withdrawn on 9 July 2012, provided that “applications” made before that date would remain subject to the rules in force on 8 July 2012, and applicants would be eligible to apply for ILR under paragraph 276C if they met the requirements of paragraph 276B. This applied, at least strongly arguably, to the Claimant. His Article 8 claim was also strong enough to warrant DLR. Paragraph 276ADE should not have been applied. The decision was wrong to say that there had been any breach of reporting requirements. He had been granted permission to work. He should have been granted four years ELR in 2001 since that was the policy applied in 1999 and through to November 2001, and not just until his majority. The SSHD should be ordered to grant ILR or DLR, or the decision should be quashed on the grounds that it was irrational to hold that the representations had no arguable prospect of success before an Immigration Judge.

So far as I can tell, the representations relied on, save for the Pre-Action Protocol letter of January 2012 for the earlier proceedings make no reference to the sort of points which later featured in the first part of the Skeleton Argument, but were instead general points about the legitimate expectation which various statements about the Legacy Programme had created.

What caused Ms Anderson to agree on a pragmatic basis to the decision being reconsidered was not the realisation that there was a strong case against her, but the fact that the SSHD had assumed that the Claimant had received the notice of removal in 2005, sent by recorded delivery to the right address. The related immigration decision could have led to an appeal. The Claimant, it was thought, had simply declined to take advantage of the opportunity to appeal. The claim that the Claimant had not had an appeal during all his time in the UK was not seen as contradicting that assumption. However, that was what the Claimant meant: he had not received any notice of removal. Rather than take up time before me arguing about the evidence of service, possibly after an adjournment to investigate, the SSHD agreed to retake the decision; if unfavourable, it might generate a right of appeal. I accept that that was the basis for the settlement decision, as seen by the SSHD.

Mr Husain relied, for the conduct limb of his costs argument on the delay leading up to the decision now challenged after the earlier proceedings settled, and on the delay in the submission of the detailed grounds of defence, in breach of the Court’s order. He relied for his merits argument on the strength of the case on the transitional provisions in the Rules, and the Article 8 claim.

Ms Anderson excused the delay in submitting the Detailed Grounds of Defence by reference to the need to get three cases, including Mr Prenga’s and one which did not proceed in the end, up to the same state in one document.

I spent some time considering the merit of the argument about the effect of the transitional provisions. Ms Anderson submitted that they did not apply since there was no application in the sense required by those provisions. They related to applications under the rules; this was not such an application.

I deal first with the arguments as raised. I accept that the SSHD was in breach of the Court’s orders in relation to service of the Detailed Grounds of Defence. Ms Anderson’s reason for the breach may be all very well and sensible as cases became linked, but it is not what the Court ordered. A variation should have been sought. Nonetheless I do not think that that should be significant in this case. The delays earlier and that delay were not said to have led to any earlier missed opportunity to settle the case on the basis upon which it was settled. The general delays in the case after 2009, and after the settlement of the earlier proceedings, do not persuade me that an order for costs should be made.

I spent some time on the merits of the revised part of the claim in Mr Husain’s Skeleton Argument; he certainly has a well arguable case, but I am not satisfied that it is a case, which, whether the SSHD realised it or not, would clearly have led to success. There is scope for argument, at least without resolving it on a full hearing, about the scope of the transitional provisions. I do not consider that the issue is sufficiently clear cut, raised at the last gasp as it was. The Article 8 claim is also not so clear cut, since there is an issue it appears over whether the Claimant breached any reporting requirements. Certainly, it is in the SSHD’s decision that he did so for the period 2005-2009. That does not appear to be disputed in the grounds. I am not at all clear that his Article 8 case, private life though he has had in the UK but without any right to be here, is nearly as strong as he submitted. The question of whether he should have had four years’ ELR on the proper application of policy in 2001 is not one I intend to resolve. There is some support for it which Mr Husain sent after the end of the hearing. But this is also a new point entirely.

On the arguments addressed to me, I would make no order as to costs. This was a sensible settlement of a case which in the new part might well have succeeded, but also might well have failed; on the other parts, the general Legacy arguments looked very unlikely to succeed even before my judgment in Khaled, and are unarguable in my view now.

The parties did not really couch their submissions in terms of M v Croydon LBC [2012] EWCA Civ 595, although that is the guiding authority on costs after a settlement, at paragraphs 59-63 in particular. The Claimant has obtained all that relief which, realistically speaking, he could have expected to obtain from these proceedings. The notion that he would obtain a mandatory order requiring some form of LTR to be granted was far fetched and would not have held up disposal of the claim. However, even if the SSHD had conceded on the basis of his newly formulated fresh claim point, the Claimant would not have succeeded by reference to any argument raised in the pre-action protocol letter or in the grounds or in the amended grounds.

The Pre-Action Protocol email of 21 August 2012, relating to this claim, asserts without any evidenced justification that the decision was deliberately delayed so that it would be caught by paragraphs 353B and 276ADE; the claim clearly related to the Legacy arguments. This was the same point as made at the very end of the original grounds. The rest were general Legacy case grounds. There are but two paragraphs at the end of the amended grounds which refer very generally to the errors in the application of 353B and in the consideration of the Article 8 case, and to the fact that no Immigration Judge has considered this claim. It is difficult to see that the amended grounds could have succeeded. But those are not the same as the new point which featured so large in the revised Skeleton Argument.

Accordingly, the essential relief sought has been obtained. There was a properly arguable case, albeit not a clear winner. The “pragmatic” settlement was not a disguised recognition of its potency but for another, perfectly sensible, reason. The relief was raised in the Pre-Action Protocol Letter and grounds but the only basis upon which the Claimant could have won was a new point raised late in the case. The guidance in M v Croydon and the thinking behind it does not really address this not uncommon sort of problem, or enable a sensible and fair costs outcome in the circumstances. There may be scope for some costs to be ordered, but not the costs of the action as if it were a straightforward category (i) case within M v Croydon. There are good reasons, if it is within that, for a different outcome. It more readily fits with the thinking in category (iii); there has been a settlement which does not really fit the Claimant’s claim save as to relief. A partial award of costs may be appropriate. But I am not prepared to make a partial award of costs here, which could not have exceeded 20 percent, since the Claimant in my view would clearly fail on the arguments which absorbed by far the greater part of the grounds, interlocutory hearing, and preparation, namely, the Legacy arguments. Indeed, the preponderance of costs relate to the issue on which he would clearly have failed. It would be very unfair if the SSHD were to bear the whole or part of the costs of the proceedings in such circumstances. Had the case been fought to a conclusion, with success on Mr Husain’s new point, and failure on the Legacy point, an award of costs of the order of 20 percent might have been justified because this new issue would have been fought and lost. But it was not and I do not know what the outcome would have been.

Accordingly I make no order for costs.